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 Hyde Park Central School District
Family Advocates, Inc., attorney for petitioners, RosaLee Charpentier, Esq., of counsel
Donoghue, Thomas, Auslander & Drohan, attorney for respondent, James P. Drohan, Esq., Linda A. Geraci, Esq., of counsel
Petitioners appeal from an impartial hearing officer’s decision finding certain errors in the development, implementation, and content of their son’s individualized education programs (IEPs) for the 1998-1999 and 1999-2000 school years, but denying their request for a prospective placement of their son at the Landmark School in Prides Crossing, Massachusetts. The appeal must be dismissed.
Petitioners’ son was 16 years old and at the end of the 10th grade in respondent’s Roosevelt High School at the commencement of the impartial hearing in June 1999. He was initially classified as learning disabled by respondent’s Committee on Special Education (CSE) while in the first grade during the 1989-90 school year. His classification as learning disabled is not in dispute in this appeal. The student attended respondent’s schools through the second grade. He was then unilaterally enrolled by his parents in the Kildonan School (Kildonan), a private school for children with learning disabilities. He remained at Kildonan for the third through the ninth grade. In a prior appeal involving the parents’ request for an award of tuition reimbursement for the 1996-97 and 1997-98 school years, I found that they were entitled to an award for the first year, but that the hearing officer had exceeded his jurisdiction in awarding tuition reimbursement for the second school year (Application of the Board of Education of the Hyde Park Central School District, Appeal No. 97-95).
The student’s mother met with respondent’s staff in March 1998 to look at respondent’s high school program and to plan for her son’s return to respondent’s high school for the tenth grade in September 1998. A school psychologist administered the Woodcock-Johnson Revised tests of Achievement (WJ-R) to the student, who achieved grade equivalent (and percentile) scores of 6.4 (20th) for broad reading, 9.9 (53rd) for broad math, and 3.9 (2nd) for broad writing. The student and his mother met with the CSE on June 11, 1998 to prepare the student’s IEP for the 1998-99 school year (Petitioners’ Exhibit 53). The CSE recommended that the student be enrolled in tenth grade English and social studies courses, a "Basic Science II" course, a Regents level math "Course II", a reading course, and a personal keyboarding/computer application course. The student’s IEP provided that he would receive four periods per day of resource room/consultant teacher services to support him in his regular education courses, and help from a teaching assistant in his math class. It further provided that he would have the benefit of various testing modifications, including extended time limits, special location, having answers recorded, and having test questions read to him. The IEP also indicated that he would have books on tape, and access to word processing (Joint Exhibit 3).
The student’s classes began on September 9, 1998. Petitioners did not receive a copy of their son’s IEP until September 16, 1998, despite their having reportedly requested a copy of the IEP on two occasions in August and once in September (Petitioners’ Exhibit 33). On September 22, 1998, petitioners expressed concern about portions of their son’s IEP, as well as its implementation, to respondent’s special education office, and sought a meeting (Petitioners’ Exhibit 35). They sent additional letters about their concerns on October 14, 1998 (Petitioners’ Exhibit 36) and again on November 5, 1998 (Petitioners’ Exhibit 37).
At a meeting with the student’s mother on November 23, 1998, the CSE agreed to modify the student’s IEP (Joint Exhibit 4). The amended IEP provided that the student would receive one period of resource room services per day, and three periods of consultant teacher services. It indicated that reading instruction would be provided on a daily basis in a special class with an 8:1 student-teacher ratio. The amended IEP included new annual goals for science, and additional goals for social studies, and it indicated that the student would have access to a computer for writing assignments and testing. It also indicated that petitioners would receive periodic reports about their son’s progress towards attaining his IEP goals and objectives. The minutes for the CSE meeting (Joint Exhibit 4, p. 10) also indicate that respondent would provide additional testing in reading, and that the student’s reading goals would be updated thereafter. Copies of the amended IEP were not sent to the student’s high school teachers until January 26, 1999 (Petitioners’ Exhibit 41).
When evaluated in December 1998, the student achieved a grade equivalent score of 6.4 on the Slosson Oral Reading Test. On the Sanford Diagnostic Reading Test, he achieved grade equivalent (and percentile) scores of 4.7 (10th) for reading comprehension and 8.2 (44th) for phonetic analysis. He also achieved grade equivalent scores of 4.6 for word identification, 5.9 for word attack, 5.7 for word comprehension, and 3.5 for passage comprehension on the Woodcock Reading Mastery Test. The evaluator noted that when the student was screened with the Degrees of Reading Power Test in the summer prior to admission to respondent’s schools in September 1998, he had attained an independent degree of reading power (DRP) score of 42. The average readability of tenth grade textbooks was 65 (Petitioners’ Exhibit 42). The evaluator noted that the student’s lack of a sight word vocabulary led to his labored decoding of words, which in turn interfered with his reading comprehension. She offered suggestions for improving the student’s reading and spelling skills.
The student received midyear grades of 80 in English, 72 in global sciences, 85 in both mathematics and basic science, and a final grade of 85 in keyboarding (Respondent’s Exhibit 8). The student passed all of his midyear or final examinations with grades of 70 in English, 73 in social studies, 74 in basic science, and a 90 in his keyboarding final examination.
The CSE met with the student’s mother again on February 4, 1999 to discuss the student’s program and IEP. The minutes of the meeting reveal that the CSE chairperson asked the reading supervisor and the student’s reading teacher to meet and develop "strategies, methods, and objectives" specific to the student’s reading needs. The CSE was to then reconvene and review the recommendations (Petitioners’ Exhibit 43). The student, his mother, a reading specialist, and other staff met on February 25, 1999 to discuss the approach to take in the student’s reading class. As a result of that meeting, the reading specialist prepared a report that recommended a set of strategies (Petitioners’ Exhibit 30).
The CSE met on March 4, 1999 and March 19, 1999, to discuss the reading evaluation, the student’s program, and his IEP goals. As a result of those meetings, the student’s IEP for the 1998-99 school year was amended again (Joint Exhibit 5). The IEP included written goals for English and resource room, mathematics, written language, study skills, global studies, and basic science II. The IEP’s goals and objectives did not include the specific reading strategies identified as appropriate by respondent’s reading specialist at the CSE’s March meetings. Petitioners received a copy of the amended IEP in May 1999 (Petitioners’ Exhibit 46, Transcript, p. 700).
On April 1, 1999, petitioners requested an impartial hearing because of their continuing concerns with the development, content and implementation of the student’s IEP (Joint Exhibit 1). The impartial hearing commenced on June 8, 1999. At that time, the parties indicated that they wished to attempt to resolve the matter by further discussions and/or meetings with respondent’s CSE. The impartial hearing officer adjourned the matter pending the outcome of deliberations by respondent’s CSE.
In preparation for the CSE’s next meeting, selected subtests of the WJ-R were administered to the student on June 11, 1999 (Petitioners’ Exhibit 25). He achieved grade equivalent (and percentile) scores of 7.4 (24th) for broad reading and 4.5 (3rd) for broad written language. Respondent’s school psychologist reviewed the student’s records, and noted that the standardized test results were consistent with teacher reports about the student’s classroom performance. He reported the student had required an intensive effort to maintain academic progress, but was making a positive adjustment to a large traditional high school setting. The school psychologist recommended that the student continue to receive daily resource room/consultant teacher services, as well as direct reading instruction. He also recommended that the student continue in the "skills level" English and social studies classes with a writing lab to prepare for a Regents exam and with testing modifications (Respondent’s Exhibit 6).
The student’s reading teacher completed an end of the year progress report on June 16, 1999 (Respondent’s Exhibit 15). The progress report indicated that the student’s work had been consistently good, that he had made improvement, but that reading difficulties remained. The teacher noted that, in May 1999, the student had stopped taking a morning dose of medication prescribed to treat his attention deficits, and that this had significantly affected his behavior. The student received final grades of 80 in English G, 72 in global studies G, 77 in Regents math, 83 in science, 67 in land transportation, and 89 in his remedial reading class. He also passed the NYS Regents competency test in social studies with a score of 73 (Respondent’s Exhibit 8, Transcript, p. 77).
Respondent’s CSE met on June 17, 1999 and June 21, 1999, to discuss the student’s IEP for the 1999-2000 school year. At petitioners’ request, the student did not attend the meeting (Joint Exhibit 2, p. 7). His mother expressed concern that her son was overwhelmed and pressured, and she asked that the student be placed in a residential school. The CSE meeting minutes indicate that respondent’s staff did not believe that a 24-hour residential school program was appropriate, and that resource room and consultant teacher services would meet the student’s needs. The minutes also indicate that the student had advised school staff that he wished to be in a vocational program for the next year.
The educational program set out in the 1999-2000 IEP (Joint Exhibit 2) was similar to that for the 1998-1999 school year. The student was to be enrolled in skills level regular education classes, with the assistance of a consultant teacher for English and social studies, as well as one period per day of resource room services. He was also to participate in a remedial reading course. Because the student’s mother had expressed concern that her son was "shutting down", the IEP included group counseling once a week as a related service. The IEP also provided for the use of books on tape and access to a word processor for tests and writing. The IEP included the testing modifications included in the March 1999 IEP, and added that his tests should be scheduled so as to avoid time restrictions and pressure. The IEP also modified the regular program to include copies of class notes and modified grading to take into account the student’s limited writing skills. There were annual goals for preparing for transition from high school, improving study skills, improving interpersonal skills, and improving language arts skills, including vocabulary, writing, and reading. There were no benchmarks or short term instructional objectives.
Since the respondent’s CSE did not recommend a residential placement, the pending impartial hearing was expanded to include the appropriateness of the student’s 1999-2000 placement. The hearing officer held further proceedings on August 12, September 22 and 23, and October 27 of 1999, during which time respondent presented its case. The hearing officer adjourned the matter on October 27, 1999, for the scheduling of petitioners’ case, which was not presented until March 8 and April 4, 2000.
The student enrolled in the 11th grade at Roosevelt High School in September 2000. His report card (Respondent’s Exhibit 52) shows that his classes included 11G English and American history G, non-Regents math, health, and reading. At the midpoint of the year, the student received grades of 79 in English, 76 in American history, 93 in math, a final grade of 79 in health, and a B+ in reading. He received passing midyear exam grades of 83 in English and 95 in math and a failing (63) midyear exam grade in American history. He received a 65 on his health final examination.
The hearing officer rendered his decision on May 21, 2000. He found that there were shortcomings in the application of district resources to the student’s special needs, that there was "insufficient coordination" at times among the school personnel teaching the student, that respondent was tardy in delivering copies of the IEPs to both its teachers and to the petitioners, that the IEP provided "vague and subjective means for evaluating progress", and that the IEP’s annual goals and objectives were not set forth in objective measurable terms. Additionally, the hearing officer concluded that it was "urgent that the student become more positively involved in the decision making", and that his IEP did not adequately address the issue of transition services.
The hearing officer ordered respondent to offer petitioners at no expense the services of an outside educational evaluator to assist in the development of measurable goals and objectives for the student’s 12th grade IEP. However, the hearing officer found that respondent had provided a program of resources behind the IEP that was not so demonstrably inadequate as to require an alternative placement, and that the Landmark School had not been shown to be a clearly appropriate program. He therefore denied petitioners’ request that respondent be ordered to place the student in that private residential school.
Petitioners contend that their son’s IEP for the 1998-99 school year was procedurally and substantively flawed. They assert that the CSE was tardy in preparing the IEP after they had notified respondent in February 1998 that their son would return to its schools in September 1998. The student’s IEP was not prepared until June 1998 (cf. 8 NYCRR 200.4[c]). While I do not condone the delay, I must note that the IEP was prepared at least two months before the beginning of classes. I have considered petitioners’ claim that respondent did not have an IEP "in place" for the student when classes began in September. The record reveals that a copy of the IEP was not provided to the student’s teachers and his parents until late September. I agree that copies of the IEP should have been made available to petitioners and the teachers at an earlier date.
Petitioners next contend that the CSE should have reconvened after the parties received the decision in the prior appeal in late September 1998 to amend their son’s IEP in accordance with that decision. I must point out that the Board of Education conceded in that appeal that it did not have an appropriate placement for the student during the 1996-97 school year, and I did not review the appropriateness of the IEP which the CSE had prepared for that school year. Consequently, I find that petitioners’ contention is without merit.
While I have considered petitioners’ assertion about an allegedly improper offer of services in the summer of 1998, I must note that they also assert that they turned down respondent’s offer on June 25, 1998 because their son had a full time job (Paragraph 9 of the Petition). In addition, I note that the student’s IEP did not indicate that he was eligible for an extended school year, nor is there any evidence of such eligibility in the record.
I also find that there is no merit to petitioners’ assertion that formal instruction in reading was not implemented. The record shows that respondent enrolled the student in 10G reading at the beginning of the 1998-99 school year as a result of the June 1998 CSE meeting. The student’s first reading teacher in that school year was certified to teach special education, but not reading. As pointed out by respondent, applicable state policy directives provide that special education students may receive reading instruction in remedial reading classes taught by a teacher certified in special education (See New York State Department of Education, VESID Policy Document No. 99-01). Since the student’s IEP did not require that the student receive assistance in reading by a certified reading teacher, it was not improper for a certified special education teacher to provide reading instruction to the student in a 10G remedial reading class.
During the fall of 1998, petitioners had concerns about the provision of books on tape to their son and the size of his English and reading classes. The record shows that respondent’s staff was responsive to petitioners’ concerns. They nevertheless assert that they formally rejected their son’s IEP in a November 5, 1998 letter (Joint Exhibit 1) and that respondent failed to schedule an impartial hearing. However, their letter indicated that they would request a hearing if a CSE meeting was not scheduled within two weeks after the letter. The CSE met on November 23, 1998.
As noted above, the CSE reconvened once in February 1999 and twice in March 1999 to address petitioners’ concerns. Petitioners assert that respondent failed to schedule a hearing after receipt of their February 3, 1999 letter expressing dissatisfaction with their son’s program (Joint Exhibit 1). However, they did not ask for a hearing in that letter. The record shows that respondent appointed a hearing officer when petitioners expressly requested a hearing in a letter dated March 31, 1999 (Joint Exhibit 1). I have considered petitioners’ assertions about a delay in scheduling the commencement of the hearing and a delay in concluding the hearing, but I have no reason to doubt the hearing officer’s explanation for the delay in concluding the hearing. I also note that the hearing officer apparently had difficulty contacting petitioners to arrange for a mutually convenient time for the hearing (Exhibit B to Petition).
I will now consider petitioners’ substantive objections to their son’s educational program in respondent’s high school. A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 ). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 ). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). I will consider the IEPs for the two school years in question together because they are similar in content.
Petitioners contend that there is no evidence that their son’s reading and writing deficits have been properly evaluated by the CSE. I disagree, and find that the student has been appropriately evaluated. His IEPs reflect those evaluations and indicate that he has attention and processing deficits that are manifested by weaknesses in reading decoding and word recognition, spelling, and the mechanics of writing. The extent of those weaknesses was documented on the WJ-R administered in March 1998, and reported on the student’s IEP for the 1998-99 school year. The WJ-R was re-administered in June 1999, and the results were reported on the student’s IEP for the 1999-2000 school year. Although the two private evaluations that petitioners obtained in the fall of 1999 (Petitioners’ Exhibits 22 and 24) provide more detail about the student’s disabilities, they do not, in my opinion, provide substantially different useful information than was previously available to the CSE.
Petitioners challenge the appropriateness and specificity of their son’s IEP goals and objectives, as well as the criteria for determining whether the student has mastered them. The hearing officer agreed with them that the IEP objectives were written in such a way as to hinder parental understanding of their son’s academic advances. Since petitioners are not aggrieved by that finding, I do not review it. However, I will note for the benefit of the parties that a CSE may develop short-term objectives that generally break the skills described in the annual goals down into discrete components, or may develop benchmarks that describe the amount of progress the student is expected to make within specified segments of the year. Whether objectives, benchmarks, or a combination of the two are used depends on the nature of the goals and the needs of the student (34 C.F.R. Part 300 Appendix A). I further note the goals and objectives in this student’s IEP improved in quality and specificity as the IEP was amended during the 1998-99 school year (Joint Exhibit 5).
Petitioners contend that their son’s IEP should have included goals for the consultant teacher who assisted the student in some of his regular education classes. I do not agree with their contention. The focus of goals in an IEP is on the student’s needs resulting from his/her disability. In this instance, the student’s identified needs were in reading, reading decoding, reading comprehension, and written language (including such things as spelling, grammar, sentence structure, paragraph writing, capitalization and punctuation). A review of the student’s IEPs indicates that they contain goals directed to the student’s regular course work (including social studies and English) and focusing on spelling, grammatical errors, word processor accuracy, developing written essay outlines, proofreading, revising, editing, and rewriting written assignments, and elaboration on assigned written themes through the use of original sentences and paragraphs. I find that the 1999-2000 IEP does contain relevant subject matter goals for the student’s consultant teachers.
I find, as did the hearing officer, that the student’s IEPs for the 1998-1999 and 1999-2000 school years should have been more precisely drafted with respect to their goals and objectives. The hearing officer further found that the student’s IEPs did not adequately address his transition from high school, and that the student should become more involved in the planning process. In addition, he found that there were certain shortcomings in respondent’s delivery of services to petitioners’ son. The question that remains is what is the appropriate remedy for these deficiencies.
Petitioners contend that the hearing officer erred by not ordering respondent to place their son in the Landmark School. They assert that he ignored the testimony by their two expert witnesses that their son had made minimal progress since his return to respondent’s schools in the fall of 1998, and that the student required placement in a facility specializing in educating dyslexic students.
A finding that respondent did not comply with all of the requirements of the applicable state and federal IDEA regulations does not, however, require a finding that the prospective private, out-of-state residential placement requested by the petitioners is the appropriate educational program for the student. A board of education may be required to provide a private residential placement to a child with a disability only if that placement "…is necessary to provide special education and related services to…" the child (34 C.F.R. § 300.302 [emphasis added]; Walczak v. Florida Union Free School Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Mrs. B. v. Milford Board of Educ., 103 F.3d 1114, 1122 [2d Cir. 1997]).
The issue is whether the educational program under review and challenged by the petitioners is one that is "reasonably calculated to enable (the student) to receive educational benefits" (Rowley, 458 U.S. at 206-07; Walczak, 142 F.3d at 129; Pascoe v. Washingtonville Central School Dist., No. 96-4926 [S.D.N.Y. September 29, 1998] [1998 WL 684583]; Application of a Child with a Handicapping Condition, Appeal No. 92-27; Applications of Board of Educ., 30 Ed Dept Rep 129 ; Accord, Kerkam v. Superintendent of the District of Columbia Public Schools, 931 F.2d 84 [D.C. Cir. 1991]; Burke County Board of Educ. v. Denton, 895 F.2d 973 [4th Cir. 1990]; Abramson v. Hershman, 701 F.2d 223 [1st Cir. 1980]). Importantly, the educational benefits provided to the disabled child must be "meaningful" "in light of the limitations imposed by the student’s disability" (Mrs. B, 103 F.3d at 1120, citing Rowley, 458 U.S. at 192, 202) and not "trivial" (Id.).
Answering this question requires that an assessment of the student’s educational performance or progress, including objective evidence such as the student’s test scores, grades in mainstream classes, and advancement from grade to grade (Rowley, 458 U.S. at 203-04; Walczak, 142 F.3d at 130; Mrs. B, 103 F.3d at 1121; Pascoe, 1998 WL 684583 at 6; Application of the Board of Educ, Appeal No. 99-95; Application of a Child with a Disability, Appeal No. 99-86; Application of a Child with a Disability, Appeal No. 95-33).
I conclude that notwithstanding the IEP deficiencies and other omissions noted above that there is no basis for requiring the school district to place this student in an out-of-state residential school. The student has made meaningful educational progress in light of his disability in his educational program. In particular, and as pointed out above, during the 1998-99 school year, the student passed each of his final examinations and mainstream courses. This includes a passing score on the tenth grade math Regents examination and a passing score on the New York State Regents Competency Test in social studies. During the same school year, the student also received an 89 in his remedial reading class. A comparison of the student’s performance on the WJ-R from March 1998, prior to his entry in respondent’s program, to June 1999, after he had participated in the mainstream regular high school program for a year also shows meaningful progress given his disability. More specifically, the student’s broad reading test scores increased from a 6.4 grade equivalent to a 7.4 grade equivalent and his broad written language scores increased from a 3.9 grade equivalent to a 4.5 grade equivalent. During the same period, an analysis of the student’s (WJ-R) subtest scores showed an increase of 5.5 grade equivalents in the writing sample subtest and a 2.5 grade equivalent increase in the letter word identification subtest. The student showed continued progress in his second year in his mainstream program. During the 1999-2000 school year, the student achieved midyear passing grades in every one of his mainstream subjects as well as in his remedial reading class.
The evidence of record regarding the student’s progress in his mainstream and remedial reading classes is not refuted by petitioners’ witnesses. They testified that the student had significant and long standing deficits in the areas of reading, language, writing, and spelling, and that they thought the Landmark School would be better for him. However, neither witness presented any evidence that the student had not made real academic progress during the two years that he had been in respondent’s mainstreamed high school program, that he had regressed because of that educational program, that respondent had not provided him with meaningful educational benefits, or that the Landmark School program was a necessary predicate for him to obtain meaningful educational benefits.
At the impartial hearing, petitioners argued that respondent should provide the student with a placement at Landmark School as a form of compensatory education. A school district may be obligated to provide a student with compensatory education under the IDEA when a child is no longer eligible because of age to receive special education services because the child has been excluded from school or denied appropriate services for an extended period of time (Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1980]; Lester H. v. Gill, 916 F.2d 865 [3d Cir. 1990]; Miner v. Missouri, 800 F. 2d 749 [8th Cir. 1986]). Since the student does not meet these criteria, I find that he is not entitled to compensatory education. I have considered petitioners’ other arguments, which I find to be without merit.
THE APPEAL IS DISMISSED.