99-081

         Petitioner appeals from a portion of an impartial hearing officer's decision holding that respondent and its committee on special education (CSE) had complied with the procedural notification requirements imposed by the Individuals with Disabilities Education Act (IDEA), as well as Federal and State regulations. She further appeals from the hearing officer's determination that her son was not entitled to an extended school year (ESY) program during the 1998-99 school year. Respondent cross-appeals from the hearing officer's findings that one of the individualized education programs (IEPs) which the CSE prepared was inappropriate, that a second IEP was a nullity because the CSE which prepared it did not include all of the required members, and that there was merit to petitioner's claim that respondent had failed to fully implement the boy's IEP. The Board of Education also cross-appeals from the hearing officer's determination that it had denied a free appropriate public education (FAPE) to petitioner's son during the 1998-99 school year, as well as his determination that the boy was entitled to an award of compensatory education. The appeal must be dismissed. The cross-appeal must also be dismissed.

        Petitioner's son is nineteen years old. He was scheduled to graduate from high school in June, 1999. The boy has been classified as learning disabled since the second grade. In the most recent assessment of his cognitive ability, which occurred in September, 1998, the boy achieved a verbal IQ score of 85, a performance IQ score of score of 94, and a full scale IQ score of 88, which is in the low average range (Exhibits SD-17 and 18). He manifested weaknesses in long-term memory for school related knowledge and visual motor processing speed. On the Kaufman Test of Educational Achievement which was administered to him in May, 1998, as he was completing the eleventh grade, petitioner’s son achieved grade equivalent (and standard) scores of 4.5 (67) for reading decoding, 6.7 (79) for reading comprehension, 2.6 (54) for spelling, 9.0 (88) for math computation, and 11.8 (101) for math applications (Exhibit SD-4). The boy’s classification as learning disabled is not disputed in this appeal.

        The boy's educational program for the 1997-98 school year was reviewed in a prior appeal to the State Review Officer (Application of a Child with a Disability, Appeal No. 99-10). The decision in that appeal describes the boy's prior educational history will not be repeated in this decision. During the 1998-99 school year, the boy was enrolled in a full-day educational program offered by the Board of Cooperative Educational Services for Washington-Warren-Hamilton-Essex Counties (BOCES) in Hudson Falls, New York. The boy's program was essentially a continuation of his educational program from the preceding school year, which had consisted of half-day instruction in the BOCES Basic Employability Skills Training (BEST) program, and half-day instruction in the BOCES "Votech" (vocational education) program. The BEST program provided him with special education instruction in an 8:1+1 class, while the Votech program was a regular education program.

        Respondent's CSE chairperson began reviewing information from the BOCES in February, 1998, in preparation for a CSE meeting to prepare the boy's IEP for the 1998-99 school year. A proposed CSE meeting to be held on April 6, 1998 was postponed by the chairperson, who hoped that the hearing which was being held with regard the boy's education program during the 1997-98 school year would resolve some outstanding issues, and assist the parties in preparing the boy's IEP for the 1998-99 school year. At petitioner's request, the CSE chairperson agreed to advance the date of the boy's triennial evaluation so that the results of the evaluation could be considered when the 1998-99 IEP was prepared. Petitioner signed a consent form for that evaluation on or about August 6, 1998 (Exhibit SD-7). Petitioner limited her consent to having the CSE use the same tests as had been administered to her son in his 1995 evaluation. The triennial evaluation was performed in September, 1998. Petitioner was notified that the CSE would meet on August 26, 1998 to prepare her son's IEP. The meeting was cancelled at petitioner's request (Transcript, page 96).

        The CSE met with petitioner on September 3, 1998, approximately six days before the beginning of classes for the 1998-99 school year. A draft IEP for the 1998-99 school year was prepared (Exhibit SD-11). The draft IEP indicated that petitioner's son would be enrolled in the BOCES BEST and Votech programs for the twelfth grade during the 1998-99 school year. He was to receive 30 minutes of speech/language therapy twice per week, and one and one-half "units" of counseling per week. The IEP also indicated that he would receive special instruction in reading for three periods per week, and 30 minutes of assistive technology training twice per week. The assistive technology training was to improve the boy's keyboarding skills, and to learn how to use computer software to support his reading and written language. The CSE also recommended that the boy receive a phonological awareness evaluation by a speech therapist. The draft IEP was not presented to respondent for approval because petitioner did not agree with all of the CSE's recommendations (Exhibit SD-12).

        On September 8, 1998, the boy was independently evaluated at the Stern Center for Language and Learning (Stern Center). He had previously been evaluated at the Stern Center in 1995 (Exhibit B). In the 1998 evaluation, the boy achieved standard scores of 74 for letter-word identification, 71 for word attack, 70 for basic reading, 88 for reading comprehension, 58 for dictation, 65 for spelling, 53 for writing samples 89 for calculation, and 83 for applied problems, on the Woodcock-Johnson Psycho-Educational Battery-Revised. On the Lindamood Auditory Conceptualization Test, the boy scored at the mid-second grade level, indicating that he had difficulty determining the differences in the ending sounds of words. The Stern evaluator noted that the deficits in the boy’s phonological processing and phonemic awareness presented significant obstacles to his acquisition of the alphabetic code. She recommended that he be instructed to improve his phonological awareness, that he receive reading instruction which would help him make sound-to-symbol and symbol-to-sound connections to improve his reading decoding skills. She also recommended that he receive structured, explicit instruction in written expression (Exhibits SD-17 and 18).

        Respondent's school psychologist evaluated petitioner's son on September 16, 1998 (Exhibit SD-16). On the Wechsler Individual Achievement Test, the boy achieved grade equivalent (and standard) scores of 3.6 (62) for basic reading, 4.9 (79) for reading comprehension, 3.4 (57) for spelling, 6.9 (78) for numerical operations, 9.4 (94) for math reasoning, and 5.9 (80) for written expression. The school psychologist reported that the boy continued to exhibit a significant deficit in his phonetic analysis skills, as reflected by the standard score of 62, which was well below his cognitive ability. He also reported that the boy's spelling score was lower than that which he had achieved when tested three years ago at the Stern Center. The school psychologist indicated that the boy had difficulty with sound-symbol associations, and that the boy's reading comprehension had not improved over the past three years. His ability to write sentences had improved. Although the boy's math computation test results suggested a decline in his performance, the school psychologist cautioned that the results might be a low estimate of his ability. He recommended that a multi-sensory approach be used to teach the boy to read, in order to improve his reading decoding skills and his spelling skills. The psychologist suggested that the boy also needed to learn compensatory skills because his reading and spelling skills might have plateaued.

        The CSE reportedly met with petitioner on October 8, 1998 to review the results of the triennial evaluation and the independent evaluation. The CSE chairperson testified that petitioner advised the CSE that there were errors in the Stern report and that she would provide a corrected copy of the report to the CSE. A CSE meeting scheduled for October 29, 1998 was cancelled at petitioner’s request.

        The CSE met with petitioner on November 5, 1998, at which time it prepared another IEP for her son (Exhibit SD-11). It again recommended that the boy attend the BOCES BEST and Votech programs, and receive 30 minutes of speech/language therapy twice per week and 30 minutes of assistive technology training twice per week. The November 5 IEP differed from the September 3 draft IEP in that the CSE increased the amount of individual counseling to three units per week to reflect the two 38-minute sessions which the boy was receiving at BOCES, and the amount of reading instruction from three periods per week to five hours per week. The special reading instruction was to be provided by one of respondent’s teachers at respondent’s high school. The CSE also recommended that the boy receive 30 minutes of individual language support three times per week, in addition to the speech/language therapy which it had also recommended for him. The CSE chairperson testified that the CSE had also revised the boy’s IEP annual goals and objectives. In an addendum to the IEP, the CSE indicated that the boy would be privately tutored at respondent’s expense, using a structured language approach for one hour per day, five days per week, until respondent’s personnel had been trained to use that instructional methodology and respondent had obtained the necessary materials for the course. Respondent approved the boy’s IEP (Exhibit SD-20).

        The CSE chairperson testified that petitioner had mentioned the name of a qualified tutor to her, and had agreed to contact the tutor. The chairperson subsequently contacted the tutor, who reportedly advised her that petitioner’s son was unavailable to be tutored at any of the times of the day which the tutor had available (Transcript, pages 194-198). Respondent’s teacher was trained in the structured reading technique, which is known as the Wilson program, and respondent acquired the program materials. The teacher began to instruct the boy in the Wilson program on January 11, 1999.

        On November 9, 1998, petitioner orally requested another meeting with the CSE. The CSE chairperson asked petitioner to provide her objections to the boy’s IEP in writing prior to the next CSE meeting (Exhibit SD-22). A CSE meeting was scheduled to be held on January 20, 1999. By letter dated January 12, 1999, petitioner indicated that she wished to discuss with the CSE whether her son should receive the Wilson program during the summer, whether the boy should graduate from high school in June, 1999, and what kind of diploma he should receive. The January 20 meeting was cancelled at petitioner’s request.

        Petitioner met with the CSE on February 4, 1999. There is no IEP from that meeting in the record. The parties were apparently unable to resolve their differences. By letter dated February 26, 1999, petitioner requested that an impartial hearing be held to determine her claims concerning her son’s evaluation, and placement, as well as respondent’s alleged failure to implement her son’s IEP and failure to have an IEP in place by the beginning of the 1998-99 school year. She also asserted that respondent had failed to provide appropriate written notices to her. She sought an award of compensatory education.

        A CSE meeting which was scheduled to take place on March 9, 1999 was cancelled at petitioner’s request (Transcript, page 218). A meeting was held on April 7, 1999. The boy’s IEP goals and objectives were modified, and his program was altered to reflect the fact that he was participating in an internship in the Votech program. The IEP was also amended to show that he was receiving two periods of counseling per week (Exhibit SD-35).

        The hearing in this proceeding began on March 29, 1999. Neither petitioner nor her lay advocate appeared on that day. Respondent moved to dismiss the proceeding. The hearing officer denied respondent’s motion. The hearing resumed on April 27, 1999, and continued for five additional days. It concluded on May 27, 1999.

        The hearing officer rendered his decision on August 11, 1999. He held that he had no jurisdiction to consider petitioner’s claim about the accuracy of her son’s Regents Competency Test grades during the school years prior to the 1998-99 school year. The hearing officer rejected petitioner’s claim that respondent had not complied with Federal and State requirements for written notice to her. He found that the notices which were given to petitioner were timely, and included the requisite information. The hearing officer also dismissed petitioner’s claim that her son should be classified as having a specific learning disability, rather than as learning disabled.

        The hearing officer found that respondent did not have an IEP in place for the boy at the beginning of the 1998-99 school year, as it should have done. He found that respondent had promptly implemented the IEP which the CSE prepared at its November 5, 1998 meeting, with one exception. The hearing officer noted that the CSE had recommended on the September 3, 1998 draft IEP that the boy should have a phonological evaluation, and that it had again recommended such an evaluation be done on the boy’s November 5, 1998 and April 7, 1999 IEPs. He found that there was no evidence that the evaluation had been performed.

        The hearing officer held that the boy’s April 7, 1999 IEP was a nullity because the CSE which met that day did not include all of its required members. He found that the appropriateness of the boy’s educational program for the 1998-99 school year was to be determined by the adequacy of the November 5, 1998 IEP. He also found that the IEP did not adequately describe the boy’s present levels of performance, and that the boy’s annual goals and short-term objectives were too imprecise. The hearing officer questioned why the CSE had recommended counseling and adaptive physical education for the boy. He dismissed petitioner’s claim that the IEP should have provided that the boy receive the Wilson program on a 12-month basis, finding that there was no evidence of the boy’s regression in reading over the summer months. The hearing officer further found that the boy’s educational program had been implemented by the BOCES staff without any regard for the provisions of his IEP, resulting in a denial of FAPE to the boy.

        In determining the appropriate remedy to be provided, the hearing officer noted that the boy was scheduled to graduate from high school in June, 1999. Since petitioner’s son would not be eligible to continue to receive services after his graduation, the hearing officer determined that he should be awarded compensatory education. He ordered respondent to provide individual instruction in reading using the Wilson program on an after school basis to the boy until the program was completed, if the boy requested it in writing prior to the beginning of each school year. The hearing officer directed that respondent could terminate the program if petitioner’s son missed more than five consecutive days of instruction without a medical excuse for his absence, or missed 15 days of instruction in any semester without a medical excuse.

        Petitioner challenges the hearing officer’s finding that respondent’s written notice to her complied with applicable Federal and State regulations. She asserts that various notices which she received did not comply with the provisions of 34 CFR 300.503 (a). I must point out that the regulation upon which petitioner relies was promulgated to reflect the 1997 amendments to the IDEA. The regulation did not become effective until May 11, 1999. Accordingly, I must find that the regulation cannot be used to assess the validity and adequacy of respondent’s notices which were sent to petitioner prior to May 11, 1999.

        Petitioner’s objection to the notices which she received is essentially two-fold. She contends that the notices sent to her before CSE meetings did not adequately describe what was to be discussed at those meetings, and that the notices which were sent after the CSE meetings failed to describe the other options considered by the CSE and its reasons for rejecting those options. The former 34 CFR 300.505 (a) (2) provided that whenever a school district proposed to initiate or change the identification, evaluation, or educational placement of a child, it must give notice which describes "the action proposed or refused by the agency, an explanation of why the agency proposes or refuses to take the action, and a description of any options the agency considered and the reasons why those options were rejected." Obviously, the notice which is given prior to a CSE meeting can only generally describe the purpose of the meeting. I find that respondent’s notices met that standard.

        After the CSE has taken a course of action, it must indicate not only what it recommends, but what other options it considered and why those were not accepted. At the hearing, respondent’s CSE chairperson was questioned about the fact that respondent’s notice of CSE recommendation (see e.g. Exhibit W) did not refer to other options considered. The chairperson testified that such information could be obtained by examining the proposed IEP sent with the notice to the parent (Transcript, page 373). On page 8 of the November 5, 1998 IEP, the CSE indicated that it had considered eight placements in addition to that which it recommended, and it explained why those placements were rejected by checking off a series of preprinted statements on the IEP. In this instance, petitioner contends that the CSE did not explain why it had rejected her request that it apply to the State Education Department for a waiver of the Regulations of the Commissioner of Education regarding her son’s ineligibility for an ESY program. I find that it was not the kind of option contemplated in the regulations, and that the hearing officer’s finding should be sustained.

        Petitioner also challenges the hearing officer’s determination that her son was ineligible for an ESY program. She argues that the hearing officer should not have relied upon State regulation (8 NYCRR 200.1[rr]), because the State regulation is allegedly inconsistent with Federal regulation. However, the new Federal regulation upon which she relies (34 CFR 300.309) did not take effect until May 11, 1999, after the last CSE meeting in this proceeding. In any event, petitioner asserts that her son’s eligibility for an ESY program should not be dependent upon a showing that he would regress over the summer months without a program, and that a comparison of the 1995 and 1998 Stern Center test results affords a basis for concluding that the boy has regressed. Petitioner made a similar argument in her previous appeal, which I rejected. I must also do so in this appeal. I am obliged, as was the hearing officer, to consider the provisions of 8 NYCRR 200.1 (rr), and 200.6(j). In accordance with the latter, the CSE must determine whether petitioner’s son required a structured learning environment of up to 12 months duration in order to prevent substantial regression. The term "substantial regression" is defined by 8 NYCRR 200.1 (nn) as "… a student’s inability to maintain developmental levels due to a loss of skills or knowledge over the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year". The CSE chairperson testified that there was no evidence of such regression. I concur with the hearing officer’s determination that the boy was ineligible for an ESY program. Accordingly, I find that petitioner’s appeal must be dismissed.

        Respondent challenges the hearing officer's determination that the IEP which was prepared on April 7, 1999 was a nullity because the CSE which met on that day did not include each of its required members. The hearing officer found that neither a school psychologist nor a parent member attended the meeting (cf. Section 4402 [1][b][1][a] of the Education Law). Respondent does not claim that a school psychologist and a parent member were at the April 7, 1999 meeting. It contends that neither member was required because it was a meeting of a CSE subcommittee, rather than of the full CSE. Section 4402 (1)(b)(1)(d) of the Education Law authorizes respondent to appoint a subcommittee of the CSE which need not include either a school psychologist or a parent member. The first page of the IEP which was prepared on April 7, 1999 indicates that it was a CSE meeting, rather than a subcommittee. However, the chairperson for that meeting testified at the hearing that it was a subcommittee meeting, and that the notation on the first page of the IEP was a "clerical error" (Transcript, page 379). Petitioner points out that the notice of the proposed meeting which she received (Exhibit SD-29) indicated that it would be a meeting of the "District Committee on Special Education." I note that in the April 14, 1999 letter to petitioner the chairperson also referred to the recommendation by the CSE having been approved by respondent (Exhibit SD-36). I find that the hearing officer's determination should not be set aside.

        Respondent challenges the hearing officer's determination that it had failed to provide a FAPE to petitioner's son during the 1998-99 school year. The hearing officer's determination was based upon respondent's failure to have an IEP in place until well after the beginning of the school year, the inadequacy of that IEP, and respondent's failure to oversee the provision of services by the BOCES. The Board of Education appears to attribute the delay in preparing an IEP to petitioner. Although the parties were engaged in a due process proceeding in the spring of 1998 with regard to the boy's IEP for the 1997-98 school year, it was the CSE's obligation to prepare an IEP for the 1998-99 school year on a timely basis. I recognize that the CSE attempted to accommodate petitioner's schedule in meeting to prepare the IEP, and that it agreed to advance his triennial evaluation. I must nevertheless find that the delay until November, 1998 in preparing an IEP was unreasonable.

        The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a][1]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).

        The hearing officer found that the boy's IEP contained little information about his present level of functioning because the IEP merely listed the boy's standard scores and percentile scores on the Woodcock Johnson – Revised, Gray Oral Reading Test, and Test of Written Language – 3, as well as his scores on the WIAT in September, 1998, but there was no other indication of how the boy was actually performing. Respondent has not directly addressed the hearing officer's finding.

        The hearing officer also found that the IEP goals and objectives grossly failed to approach the standard set forth in 8 NYCRR 200.4 (c)(2)(iii), which requires that an IEP:

" (iii) list measurable annual goals consistent with the student's needs and abilities, including benchmarks or short-term instructional objectives and evaluative criteria, evaluation procedures and schedules to be used to measure progress toward the annual goals and to be followed during the period beginning with placement and ending with the next scheduled review by the committee. Such benchmarks or short-term instructional objectives shall be measurable intermediate steps between present levels of educational performance and the annual goals that are established for a student with a disability. The measurable annual goals, including benchmarks or short-term objectives, must relate to:

1. meeting the student's need that result from the student's disability to enable the student to be involved in and progress in the general curriculum; and
2. meeting each of the student's other educational needs that result from the student's disability;"

        I have reviewed the boy's IEP annual goals and short-term objectives, and I find that the goals for his special education English, social studies (government and economics) relate more to completion of 12^th grade curriculum requirements than to his specific needs. Some goals are extremely vague, e.g., "improve math skills closer to age grade level." One of the boy's greatest deficits was in written language skills. His IEP annual goal was to "improve written expression closer to age-grade level". There were three objectives: improve spelling, improve writing mechanics, and improve "sentence writing expansion ability." The boy's other major deficit was in reading. His annual goal and supporting objectives were as vague as the goal and objectives for written expression.

        The Board of Education also challenges the hearing officer's finding that the school district failed to implement the boy's IEP for the 1998-99 school year because it did not obtain a phonological awareness evaluation of the boy during the 1998-99 school year. I must first note that the CSE already had the results of the evaluation done by the Stern Center in November, 1995, which included a Lindamood Auditory Conceptualization Test (Exhibit B). Therefore, the CSE had information about the boy's phonological awareness. The CSE chairperson testified that petitioner had requested that her son's phonological awareness be re-evaluated, and that the CSE had agreed in September, 1998 to have a speech/language teacher perform the evaluation and compare the results with those obtained in the 1995 evaluation (Transcript, pages 102-103; Exhibit I). The Lindamood Auditory Conceptualization Test was again administered to the boy during his evaluation at the Stern Center on September 8, 1999 (Exhibit SD-17). The results of that evaluation were made available to the CSE in time for its November 5, 1998 meeting at which the IEP was prepared. Although the CSE did not re-administer the Lindamood to the boy, I am not persuaded that its failure to do so was a major omission. Therefore, I disagree with the hearing officer's finding to the contrary.

        Although not described as a failure to implement the IEP in his decision, the hearing officer also found that respondent had failed to exercise appropriate oversight for the boy's educational program. He noted that it was respondent's responsibility to ensure that the boy received an appropriate program even though he was attending a BOCES program. The hearing officer found that the boy's BOCES teachers taught him without any regard to the provisions of his IEP. Having reviewed the teachers' testimony, I am concerned by the apparent lack of coordination (Transcript, page 496), and lack of awareness of what was being done in the boy's specialized reading program (Transcript, pages 154, 769, and 927), or of the provisions of his IEP (Transcript, pages 460-461).

        For all of the foregoing reasons, I find that the hearing officer's determination of a denial of a FAPE is supported by the record. The remedy selected by the hearing officer was, in my opinion, appropriate under the circumstances. If the boy avails himself of the opportunity, he will have a chance to improve his reading and writing skills which are his most significant educational needs.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.