99-055

       Petitioners appeal from the decision of an impartial hearing officer which denied their request for an award of tuition reimbursement for the cost of their son's tuition at the Landmark School (Landmark), a private residential school in Prides Crossing, Massachusetts, from January through June, 1998. The appeal must be dismissed.

        Petitioners' son was 17 years old and in the tenth grade at Landmark at the time of the hearing. He was initially referred to respondent's committee on special education (CSE) in November, 1990, when he was nearly 10 years old and in the third grade at a private school. His teacher made the referral because the child reversed letters, numbers and words, and had processing problems (Exhibit 1). The teacher questioned whether a lack of attention was an explanation for the child's poor performance.

        In a psychoeducational evaluation (Exhibit 4) conducted on December 12, 1990, the school psychologist noted that according to the child's classroom teacher, the child had exhibited poor fine motor control, poor placement of written work, and illegible handwriting. The child achieved a verbal IQ score of 111, a performance IQ score of 95, and a full scale score of 103 on the Wechsler Intelligence Scale for Children-Revised (WISC-R), suggesting that he was functioning in the average range of cognitive ability. However, the school psychologist cautioned that because of significant subtest scatter, the results were not a true measure of the child's ability. He achieved at the borderline ability level in arithmetic, indicating that the organization and use of mathematical facts was a weakness. He achieved in the low average range on a subtest measuring a skill which is highly correlated to spelling and the reading decoding process, indicating that visual short term memory also was a weakness. Based upon the child's performance on the WISC-R, the school psychologist concluded that the perceptual organization of material, and attention and concentration were areas of relative weakness. On the Basic Achievement Skills Individual Screener (BASIS), the child achieved grade equivalent scores of 2.6 in mathematics, 4.1 in reading, and 1.7 in spelling. In an informal writing sample, the child misspelled many words and reversed letters, including those written in cursive. The school psychologist noted that the child's writing became progressively worse as he continued with the writing sample, and he became increasingly frustrated. He was unable to identify a word two minutes after he had completed the exercise. The child's results on the Slingerlands Screening Tests for Identifying Children with Specific Language Disability suggested that he had a "neurophysiological dysfunction that interfered with the ability to handle symbols of sight and sound successfully." The school psychologist recommended that the child be classified as a student with a learning disability in the areas of written expression and math, and that he transfer to the public school to receive resource room services. The CSE met in December, 1990 and recommended that the child be classified as learning disabled with deficits in mathematics and written expression (Exhibit 5). It further recommended that the child receive resource room services five times per week for one hour each day.

        The child reportedly transferred to the public school and was administered the Kaufman Test of Educational Achievement (KTEA) in February, 1991. He achieved grade equivalent scores of 2.6 in reading decoding, 4.5 in reading comprehension, 2.3 in spelling, 3.0 in math computation and 4.3 in math application. The CSE prepared Phase II of the child's individualized education program (IEP) in March, 1991 (Exhibit 5). The IEP indicated that the child would receive resource room services to strengthen his reading and writing skills.

        The CSE recommended that the child continue to be classified as learning disabled and receive resource room services for his fourth grade year (Exhibit 8). It also recommended that he have the benefit of testing modifications. The student profile section of the child's Phase II-IEP provided that resource room services would focus on reading support and the process of writing. It also included a notation that the child might wish to use the computer in the resource room during free time or after school to write short stories. For his fifth grade year in 1992-93, the CSE continued the child's classification as learning disabled and recommended that in addition to resource room services one period each day, he receive consultant teacher services for one period each day and counseling once per week for 30 minutes (Exhibit 10). It also recommended the continued use of testing modifications, as well as the use of a computer. The child's IEP for the 1992-93 school year also reflected that the child was taking Ritalin and that his mother requested that he receive counseling for rage (Exhibit 9). In a letter dated December 15, 1992, the school psychologist requested petitioners' assistance in improving their son's attendance at his counseling sessions (Exhibit 12). She noted that she had been advised that the child's classroom attitude and participation had improved, and asked whether they continued to be concerned about his anger. The child reportedly received tutoring in math and writing during the summer between the fifth and sixth grade.

        For the sixth grade during the 1993-94 school year, the CSE continued to recommend that the boy be classified as learning disabled (Exhibit 14). It eliminated resource room services, but increased consultant teacher services to two periods per day. The CSE further recommended that the boy continue to receive counseling, and have the use of a computer and testing modifications. The IEP included a notation that the boy resisted help at times.

        The school psychologist conducted a psychoeducational evaluation of the child for his triennial review in January, 1994 (Exhibit 15). The child achieved a verbal IQ score of 101, a performance IQ score of 99, and a full scale IQ score of 100 on the WISC-R, placing him in the average range of cognitive ability. The child demonstrated weaknesses in mental arithmetic, auditory short-term memory and sequencing abilities. The child's ability to attend and/or focus, organize and recall information were assessed to be below average. The school psychologist noted that these results were consistent with the scores the child obtained in the initial psychoeducational evaluation in 1990. On the BASIS, the child achieved grade equivalent scores of 5.9 in mathematics and 3.6 in spelling, suggesting that while they were still areas of weakness, he had maintained approximately the same measured difference between ability and achievement as found in the initial evaluation. The school psychologist noted that classroom reports provided further evidence of the child's progress. For his writing sample, the child wrote a poem that he had previously written for a classroom assignment. The school psychologist indicated that while the content of the poem was excellent, the child's writing was difficult to decipher. She noted that the child should avail himself of the support and services offered.

        For the seventh grade during the 1994-95 school year, the CSE continued to recommend that the child be classified as learning disabled and receive consultant teacher services two periods per day (Exhibit 17). Testing modifications and the use of a computer were still recommended, however counseling was discontinued. The child reportedly received tutoring in math and writing during the summer following the seventh grade. For the child's eighth grade year, the CSE continued to classify the child as learning disabled, increased consultant teacher services to three periods per day, and continued to recommend the use of a computer and testing modifications (Exhibit 19).

        In July, 1996, when the child was 15 years old and had recently completed the eighth grade, he was privately evaluated at the Stern Center for Language and Learning (Stern Center) in Williston, Vermont (Exhibit 24). On the Woodcock Johnson Psychoeducational Battery-Revised (WJ-R), the child's overall cognitive ability fell within the average range, which the private psychologist noted was consistent with previous testing on the WISC. The child achieved grade equivalent scores of 8.0 in broad reading, 6.2 in broad math, and 3.7 in broad written language. The private psychologist concluded that while the child had a weak mastery of sound-symbol correspondence, his overall reading comprehension was average to superior because of well developed background knowledge and application of good verbal thinking skills. She indicated that the child's written expression was considerably delayed, with difficulties in writing mechanics, orthographic processing, handwriting, sentence formulation and organization of ideas. The child's achievement in mathematics was assessed to be in the average to low average range, with pervasive problems interpreting symbols, understanding concepts and completing algorithmic sequences for computations. The psychologist indicated that the child's learning style required that he receive verbal instruction accompanied by visual reinforcement, along with instruction using all modalities to master basic skills in all academic subjects.

        For the ninth grade, the child's classification as learning disabled was continued. However, the CSE recommended that he receive 42 minutes of resource room services 2.5 periods per day (Exhibit 23). Testing modifications and the use of a computer were still recommended. Additionally, a transition IEP was developed which indicated that the child would like to go to college, and that he would focus on performing well academically in order to meet his college goal. The child began to be privately tutored by a certified special education teacher in September, 1996. However, there was reportedly little coordination of the tutor's activities with those of the boy's special education teacher.

        A triennial review was conducted in May, 1997 at the end of the child's ninth grade year (Exhibit 32). The school psychologist relied upon the results of the Stern Center psychoeducational evaluation in July, 1996, as well as a report from the child's consultant teacher. Based upon her review of the information, the school psychologist noted that while the child's learning difficulties were still evident, he had learned techniques to compensate for his weaknesses and was making progress. She noted that the child was receiving private tutoring.

        On June 2, 1997, petitioners submitted a proposal for the child's special education plan for the 1997-98 school year which listed twelve recommendations including an individual resource room for remediation in written language, a second period of resource room to assist the child with his homework, various testing modifications, instruction using a multisensory method, and enhanced communication between the child's special education teacher and his tutor (Exhibit 34). The CSE met on June 12, 1997 and recommended that the child continue to be classified as learning disabled, and receive resource room services for two periods each day: one for spelling and written expression, and one for daily support with homework. Additionally, the CSE recommended that the child participate in a study hall in the resource room for math remediation. The child's IEP included goals for handwriting, spelling, and written expression, as well as for organizational skills, study skills, proofreading skills, math skills and compensation skills.

        The parents' then attorney also submitted a proposed special education plan at the meeting (Exhibit 36). His proposal set forth various recommendations to address the child's deficits in written language, homework, testing, and general learning, in addition to recommendations for educational planning and goal measurement similar to those submitted in the parents' proposal. The minutes from the June 12, 1997 CSE meeting indicate that the parents' proposal was discussed in depth (Exhibit 74). In August, 1997, the child's special education teacher developed the boy's 1997-98 IEP annual goals and short-term instructional objectives in handwriting, spelling and written expression, after she had reportedly consulted with the boy's private tutor. On September 8, 1997, the CSE sent petitioners a copy of the IEP (Exhibit 75).

        At the end of the ninth grade, the child achieved final grades of 82 in English, 81 in biology, 70 in course I mathematics, 85 in social studies, and 93 in studio art. The child began tenth grade at respondent's high school. The record shows that the child's performance deteriorated during the fall (Exhibits 42, 43, 65, and 71). The child's report card for the first quarter of the tenth grade shows that he achieved a 72 in earth science with a notation that lab reports were late, 71 in mathematics, 76 in social studies with a notation that performance was inconsistent, 66 in English, again with a notation of inconsistent performance, and 85 in art.

        The child was reevaluated at the Stern Center on October 9, 1997, by the same private psychologist who conducted the July, 1996 evaluation (Exhibit D). On the WJ-R, the child achieved grade equivalent scores of 10.0 in broad reading, 5.9 in broad math and 5.4 in broad written language. The private psychologist noted that the boy's writing mechanics continued to be significantly delayed and that mechanical errors often interfered with meaning. However, she reported that considerable growth was evident in the child's ability to write concise, clear sentences in response to verbal directions. With respect to the child's math skills, the private psychologist noted that while the child passed course I math, he was unable to retain more advanced computation skills and indicated that the child was in need of specific remediation in basic math skills.

        In November, 1997, the child's special education teacher prepared comments regarding the child's achievement of his IEP annual goals and objectives. She indicated that the child had agreed to complete all handwritten work in cursive. With respect to the child's spelling goals, the teacher reported that he was not applying the strategies and rules consistently. She reported that he had achieved some of his short-term objectives in written language, and was being instructed on other objectives.

        The child was screened for admission at Landmark on December 5, 1997. His academic testing revealed that he had weaknesses in phonologic awareness and word attack skills, written organization, graphomotor legibility, short-term memory and writing mechanics (Exhibit E). The child achieved a grade equivalent score of 6.4 in spelling on the KTEA. On December 10, 1997, the child's parents advised respondent that they would be placing their son in a private school by the middle of January, 1998 because they believed that he had not been provided an appropriate education at the district (Exhibit 50). The child's December progress reports in the public school show that he failed to complete assignments, put forth his best effort, or take advantage of word processing for essays (Exhibits 51 and 52).

        On January 5, 1998, the child's parents advised the CSE that they had placed their son at Landmark, and that his last day at respondent's school would be January 16, 1998. In February, the child's former special education teacher in the public school reported on the child's achievement of his IEP goals and objectives. She noted that most of the child's handwriting continued to be in manuscript. She further noted that the child had achieved some objectives in spelling, but his progress was slow. Consistent with his performance in November, 1997, the special education teacher reported that the child achieved some of his objectives in written language, and was being instructed in others.

        The child's parents requested an impartial hearing on April 16, 1998. They asserted that respondent had failed to identify and address their son's special education needs for at least the previous three years, and that the boy's educational program for the 1997-98 school year was procedurally and substantively flawed. They requested reimbursement for the cost of their son's tuition, room and board at Landmark, as well as for his previous private tutoring (Exhibit 77).

        The impartial hearing was held on various dates in November and December, 1998. However, the record was not closed until March, 1999. The hearing officer rendered his decision on May 24, 1999. He rejected petitioners' challenge to the school psychologist's triennial evaluation in April, 1997, finding that she could rely upon the July, 1996 Stern Center evaluation report and reports from the child's teachers to assess his level of performance at the time. Accordingly, he found that the triennial review was essentially proper. Noting that the parents were fully engaged in the CSE process and that all of their recommendations and demands were essentially included in their son's IEP, the hearing officer found that the parents were afforded meaningful participation in its development. He further found that the parents' rights were not compromised, nor was the child denied a free appropriate public education (FAPE), because the final draft of the child's IEP was not completed until after the June, 1997 meeting.

        The hearing officer also found that the boy's IEP correctly measured his then current levels of performance, and it established achievable annual goals and short-term objectives which were related to his special education needs. He noted that the IEP and the attachment were specific in the methods of addressing the particular area of need. The hearing officer also found that the child had made progress before entering Landmark. He found while the record failed to adequately explain the child's academic decline in the fall of 1997, there was evidence that the child ceased being cooperative. The hearing officer concluded that within the mainstreamed district environment with adequate related services performed by qualified personnel, the child could receive a FAPE in the least restrictive environment. Accordingly, he found that the district's program and services for the child during the 1997-98 school year were appropriate. Based upon that finding, the hearing officer did not address the appropriateness of the child's placement at Landmark, nor whether the equities favored the parents.

        Petitioners appeal from the hearing officer's decision on several grounds. They allege a number of procedural and substantive violations of the Individuals with Disabilities Education Act (20 USC 1400 et seq., hereinafter referred to as IDEA) claiming that such violations resulted in their son being denied a FAPE. Initially, petitioners claim that respondent failed to provide appropriate special education services to their son prior to the 1997-98 school year. However, I find that this issue is both untimely and moot (Application of a Child with a Disability, Appeal No. 93-27). The record shows that the boy has been classified and receiving special education services since 1990. Had petitioners been dissatisfied with the CSE's prior recommendations, they should have advised the district at the time and pursued their due process rights. The State Review Officer is not required to determine issues which are no longer in controversy (Application of a Child Suspected of Having a Disability, Appeal No. 91-45; Application of a Child Suspected of Having a Disability, Appeal No. 95-52).

        Petitioners' primary complaint is that the they were denied full and equal participation in the development of their son's IEP for the 1997-98 school year because the child's annual goals and short-term instructional objectives relating to handwriting, spelling and written expression were established without their participation by his special education teacher after the June 12, 1997 meeting. A CSE must afford a student's parents a meaningful opportunity to participate in the development of the student's IEP (Application of a Child with a Disability, Appeal No. 96-31). The official interpretation of the Federal regulations which were in effect at the time of the June 12 1997 CSE meeting indicates that:

"The parents of a child with a disability are expected to be equal participants along with school personnel in developing, reviewing and revising the child's IEP. This is an active role in which the parents (1) participate in the discussion about the child's need for special education and related services, and (2) join with the other participants in deciding what services the agency will provide to the child" (34 CFR Part 300, Appendix C, Question 26).

        The hearing officer found that the parents were fully engaged in the CSE process, and that parents' recommendations and demands were not only given serious consideration, but they were adopted by the CSE and included in the IEP. I agree. The record shows that petitioners had submitted a proposal for their son's 1997-98 education plan (Exhibit 34) prior to the June 12, 1997 meeting, and their attorney submitted a more detailed proposal (Exhibit 36) at the meeting. The minutes from that meeting show that the parents' proposal was discussed in depth, and that petitioners' attorney indicated that he expected the CSE to review his proposal later "rather than take time here" (Exhibit 74, page 3). The boy's special education teacher testified that she had prepared goals in advance of the June 12, 1997 CSE meeting, but those goals did not specifically address all of the areas discussed at the meeting (Transcript, page 385). She further testified that she prepared more specific annual goals and short-term instructional objectives in August, 1997, based upon the proposals of petitioners and their attorney, as well as the discussions and agreements from the June 12, 1997 meeting. I find that the goals and objectives are consistent with those proposals and the discussions at the CSE meeting.

        While the annual goals and short-term objectives for handwriting, spelling and written expression were established after the June 12, 1997 CSE meeting, the record shows that they were rewritten to reflect with more specificity the discussions from that meeting. Petitioners received a completed copy of the IEP on or about September 8, 1997. Their attorney's detailed proposal with its specific suggestions for improving the boy's written expression was annexed to the IEP and explicitly incorporated by reference into the IEP (Exhibit 37). It is clear from the record before me that respondent's CSE did considerably more than merely listen to petitioners' comments and concerns at the June 12 CSE meeting. The CSE and the boy's parents reached agreement on the nature of the boy's educational program. In doing so, the CSE accepted the two proposals which petitioners and their attorney presented to the CSE, as evidenced by the fact that the attorney's more detailed proposal was incorporated by reference into the boy's IEP. The IEP and the attorney's proposal when read together provide a detailed description of the activities which the boy and his resource room teacher were to perform during the 1997-98 school year to address the boy's special education needs by providing both remediation and the use of compensatory techniques. I find that petitioners obtained from the CSE precisely the educational program which they had sought for their son. Therefore, I find that their contention that they were denied an opportunity to be equal participants in the development of their son's IEP is without merit.

        Although petitioners have also raised some technical objections to their son's IEP in terms of its description of his present levels of performance and the specificity of his annual goals, I am not persuaded by the record before me that their objections should lead me to conclude that their son could not have received a free appropriate public education pursuant to that IEP. I find that this boy's primary disability was in the area of written expression. His current level of functioning with respect to this disability is described on the fourth and fifth pages of the IEP, where his annual goals for spelling and writing are set forth. I find that such description and the boy's annual goals and short-term objectives provide sufficient information to enable the child's teacher to know where to begin with him and what the CSE expected to be accomplished during the 1997-98 school year. During that year, he was to have improved his ability to write in cursive, improve his spelling skills by approximately one year, and to improve his written language skills by approximately one year.

        An IEP must also describe the special education services which are necessary to afford the child a reasonable opportunity to achieve his or her annual goals. For the 1997-98 school year, the CSE recommended that petitioners' son receive two periods of resource room services each day, one for spelling and written expression on an individual basis, and one for daily support with homework. Additionally, the CSE recommended that that boy participate in a study hall in the resource room for math remediation. I must note that although the IEP provides for math remediation, there is no indication in the record that he was learning disabled in math at the end of the 1996-97 school year. The record shows that the boy had deficits in spelling, written expression, and handwriting. The CSE recommended that these deficits be addressed in the resource room one period per day where he would work with a special education teacher one-on-one. He also had some organizational difficulties. The CSE recommended that the boy receive a second period of resource room each day to provide support with homework as well as organizational, study and math skills.

        In determining that the recommended services were appropriate, the hearing officer considered the progress which the boy had previously achieved while receiving similar services. Petitioners challenge the hearing officer's reliance upon the fact that the child was making academic progress in respondent's educational program. I disagree. Satisfactory grades in coursework which are consistent with performance on standardized testing instruments are acceptable indicators of satisfactory progress (Walczak v. Florida Union Free School District, 142 F. 3d 119 [2d Cir., 1997]; Pascoe v. Washingtonville Central School District, 96 Civ. 4926, U.S. D.C. S.D. N.Y., 1998 [29 IDELR 31]). The record shows that the boy not only advanced from grade to grade, but he also improved his performance on standardized tests. Over the years his reading and mathematics skills have steadily improved. However, writing continues to be difficult for him. Nevertheless, the Stern Center evaluator noted that he had made progress between July, 1996 and October, 1997 (Exhibit D). The standardized test results from the boy's pre-admission testing at Landmark in December, 1997 also support the hearing officer's finding about the adequacy of respondent's educational program. The boy achieved a grade equivalent score of 6.4 on the KTEA for spelling which not only demonstrated improvement from his previous scores, but surpassed his IEP goal. At the time of that testing, the boy was enrolled in the educational program which petitioners now claim was inappropriate. While I am aware of an apparent decline in the boy's academic performance during the Fall of 1997 (Exhibit 49), I have read the progress reports by two of his regular education teachers (Exhibits 51-53), as well as his special education teacher's comments about the boy's progress towards achieving his IEP objectives (Exhibit 70). I must concur with the hearing officer's observation that the child's failure to complete some of his assignments is not proof that his educational program was inappropriate. Based upon the information before me, I find the program recommended by respondent's CSE was reasonably calculated to allow the boy to receive educational benefits. Accordingly, I find that the board of education has demonstrated the appropriateness of the recommended program.

        Petitioners argue that their son's IEP for the 1997-98 school year was inadequate because it failed to include a statement of transition services. State regulation requires that the IEP of a child who is at least 15 years old include a statement of the needed transition services (8 NYCRR 200.4 [c][2][v]). I agree with petitioners that the IEP should have included that information. As noted above, the boy's IEP for the 1996-97 school year included a transition statement, which indicated that the child would like to go to college and that he would focus on performing well academically in order to meet his college goal. The educational program which the CSE had recommended for the boy for the 1997-98 school year was designed to enable him to pursue his goal of attending college upon completing of a college preparatory educational program. There is no evidence that any other service was necessary to prepare the boy for transition upon his graduation from high school, which was at least two years away. Under the circumstances, I find that the CSE's failure to include a statement of services in the boy's IEP did not deprive him of a free appropriate public education (see Chuhran v. Waled Lake Consolidated Schools et. al., 22 IDELR 450 [Ct. of Appeals, 6^th Cir., 1995]; Max M. v. Illinois State Board of Education, 629 F. Supp. 504 [N.D. Ill., 1986]).

        Petitioners further assert that the board of education failed to give them adequate notice of its CSE’s recommendation because the notice did not explain why their proposal was rejected. Federal and State regulations require that the parent of a child with a disability be given written notice of a CSE’s recommendation, and that the written notice include a description of the options which the CSE considered and the reasons why those options were rejected (34 CFR 300.505 [a][2]; 8 NYCRR 200.5 [a][4][i]). By letter dated September 8, 1997 (Exhibit 75), the boy's parents were notified of the CSE’s recommendation. The letter was accompanied by a copy of the boy's IEP. The options considered by the CSE and the justification for rejecting those options are included on the last page of the IEP under the heading "Least Restrictive Environment". The record shows that the CSE adopted the parents' proposal in the boy's IEP. I find that the notice which the parents received complied with the regulatory requirement.

        The central dispute in this proceeding is whether petitioners are entitled to reimbursement for the cost of their son's tuition at Landmark. A board of education may be required to pay for educational services obtained for a child by the child's 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 (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). I have found that respondent has demonstrated the appropriateness of the program it recommended for the child during the 1997-98 school year. As petitioners have not prevailed with respect to the first criterion, they are not entitled to reimbursement for their son's tuition at Landmark. Accordingly, it is not necessary to address the second and third criteria for an award of tuition reimbursement.

        I have considered petitioners' other claims which I find to be without merit.

THE APPEAL IS DISMISSED.