Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of Glens Falls
Bartlett, Pontiff, Stewart & Rhodes, P.C., attorneys for respondent, Martin Auffredou, Esq., of counsel
The petitioners are the child’s parents and grandparents. For the purposes of this decision, they will be referred to collectively as the petitioners. Petitioners appeal from an impartial hearing officer’s decision that denied their request for reimbursement for the cost of having the child privately instructed in two specialized language programs, Fast ForWord and the Lindamood Phoneme Sequencing program (LiPS) during the 1999-2000 school year. The Board of Education cross-appeals from the hearing officer’s determination that it failed to provide the child with an appropriate education in the 1998-99 and 1999-2000 school years, and that it should have provided occupational and physical therapy to the student during the summer of 1998. The appeal must be dismissed. The cross-appeal must be sustained.
Preliminarily, I will address several procedural issues. Respondent asserts that the appeal is untimely because the petition was not served within 40 days after its receipt of the hearing officer’s decision as required by 8 NYCRR 279.2(b). The hearing officer’s decision was signed June 20, 2000, and respondent asserts that it received the decision on June 21, 2000. The petition was served upon the Board of Education on August 4, 2000, which was four days beyond the requisite 40-day period. However, petitioners had initially served the petition by mail upon respondent’s attorney on July 31, 2000. When advised by the Office of Counsel that such service was not proper, they promptly served respondent. Under the circumstances, I will excuse their brief delay.
Respondent also requests that petitioners’ reply and answer to its cross-appeal be rejected as untimely. I note that respondent’s answer and cross-appeal was served by mail on August 14, 2000. Petitioners’ reply was served on August 25, 2000. Their answer to the cross-appeal was reportedly served on September 5, 2000. The Regulations of the Commissioner of Education provide that an answer must be served within ten days of the cross-appeal and a reply must be served within three days of service of the answer (8 NYCRR 279.5 & 279.6). Although petitioners’ reply and answer to the cross-appeal were not served within the prescribed time periods, I note that there is no evidence of prejudice to respondent by the brief delays, and I will accept both documents.
Petitioners ask that I find that respondent retaliated against them for exercising their due process rights by reporting them to the NYS Office of Child and Family Services for educational neglect. This claim arises from petitioners’ removal of the child from the classroom for part of the school day to participate in the Fast ForWord and LiPS programs. I note that a parent of a child with a disability has the right to initiate an impartial hearing only on matters relating to the identification, evaluation, or educational placement of the child or provision of a free appropriate public education (FAPE) (34 CFR §300.504[a]&; 300.506[a]). Accordingly, I find that petitioners’ claim is not a matter that is properly asserted in a proceeding of this nature.
There is one other issue about the scope of this appeal. Petitioners object to the fact that the hearing officer declined to rule upon the claims they had asserted pursuant to Section 504 of the Rehabilitation Act of 1973. However, they appear to recognize that the State Review Officer does not review Section 504 claims because the New York State Education Law makes no provision for State-level administrative review of hearing officer decisions in Section 504 hearings (Application of a Child with a Disability, Appeal No. 99-10).
When the hearing began, on January 10, 2000, the child was seven years old and was repeating the first grade in respondent’s Jackson Heights School. She had attended that school for kindergarten during the 1997-98 school year and first grade during the 1998-99 school year. During November and December 1999 and part of January 2000, petitioners removed the child from school for approximately four hours per day so that she could receive the specialized language instruction that they had arranged for her. Fast ForWord is a computerized reading program that was provided to the child at a speech therapist’s office. Upon completion of that program, the therapist recommended the LiPS, which is a speech/language program. That program was provided to the child at home by a tutor and by her grandmother.
The child was initially screened in April 1997, prior to her enrollment in kindergarten for the 1997-98 school year. The screening revealed some age appropriate speech articulation errors, but nothing to suggest that she would be in need of special education (Transcript pp. 1891-92). A preschool screening form completed by the parents did not indicate any cause for concern (Transcript pp. 224, 229; Exhibits SD-16 & 17). The child’s kindergarten teacher noticed her slight articulation problems (Transcript p. 246). The child was evaluated, with her mother’s consent, by respondent’s speech/language therapist, who noted that while the child had some areas of weakness, she would not have met the criteria for classification as a child with a disability (Transcript p. 1899; Exhibits SD-102, 103, 104). Nevertheless, the therapist began to supply speech improvement services (8 NYCRR 100.1[p]) to the child twice a week (Transcript pp. 1896 & 1901; Exhibits 103 & 104).
On October 14, 1997, respondent’s child study team recommended that an occupational therapy (OT) screening be done because the child was tripping, falling, and having difficulty sitting in her chair, and also having problems with cutting and other fine motor skills (Transcript p. 767; Exhibits SD-19 & 20). Informal OT evaluations were done in November 1997 and January 1998 (Transcript p. 342). A formal evaluation done on February 24, 1998 showed that the child had significant delays in fine motor skills. The evaluator recommended the child undergo a physical therapy (PT) evaluation as well (Exhibits SD-22, 32, 34). A referral for that evaluation was made on March 10, 1998.
Upon review of the OT evaluation report in March 1998, the child study team referred the child to the Committee on Special Education (CSE) (Transcript pp. 382 & 2240; Exhibit P-F). On March 16, 1998, the child’s mother consented to having the CSE evaluate her child (Transcript p. 2244; Exhibit SD-117). The next day, the child’s parents sent their own referral to the CSE, along with a letter from the child’s pediatrician recommending the child be evaluated by a pediatric neurologist (Exhibits SD-116 & 118).
The child was evaluated by a school psychologist on March 27, 1998. She achieved a verbal IQ score of 105, a performance IQ score of 82, and a full scale IQ score of 93 on the Wechsler Preschool and Primary Scale of Intelligence (WPPSI) (Exhibit SD-43). The psychologist attributed the disparity between the child’s verbal and performance scores to the difficulty she had manipulating items (Transcript p. 562). The child was also tested by respondent’s speech/language therapist in March 1998. The therapist reported that the child continued to make speech articulation errors, and that test results indicated that she might have deficits in her expressive language skills. She recommended that the student be classified by the CSE as speech impaired (Exhibit P-RRRR). The student’s speech improvement services were increased from twice to three times a week (Transcript p. 1929).
In April 1998, respondent’s physical therapist evaluated the child, and reported that she had significant delays in the development of her gross motor skills (Transcript pp. 768, 770-71; Exhibits SD-55 & 56). A neurologist who had evaluated the child in March 1998 indicated the child had fine and gross motor delays. The neurologist recommended hydrotherapy sessions for the child, and prescribed a one-month trial of Ritalin because the child had a short attention span (Exhibit SD-124). In an addendum based on a follow-up appointment, the doctor reported that the child’s cognitive level was in the three and one half to four-year age range, and recommended a smaller classroom setting with a teacher and an aide (Exhibit SD-123).
After arranging for independent PT and OT evaluations, petitioners began taking the child out of school twice a week for hydrotherapy and OT services provided by the Glens Falls Hospital during May and June 1998. The child continued to receive those services during July and the first few days of August 1998 (Transcript pp. 794-95, 2528-29; Exhibits SD–23, 24, 28, 58, P-6-B, P-Q, P-5V, P-6A). Petitioners asked respondent for an assistive technology (AT) evaluation.
Respondent’s CSE met on June 8, 1998 to consider the results of the child’s evaluations, a classroom observation, and social history, as well as a letter from the child’s pediatrician (Exhibit SD-44). The child’s kindergarten teacher reported that the child had made normal progress during kindergarten, and that she had no reservations about recommending her for advancement to first grade (Transcript pp. 280, 297). She noted that the child did not have an attention problem in her classroom, but that she was slightly immature for her age (Transcript p. 294). The CSE recommended that the child be classified as multiply disabled because of her motor delays and speech problems.
Since the child had done well in kindergarten, the CSE recommended that she be enrolled in a regular first grade classroom, with speech/language therapy four times in a six-day cycle, OT twice in a cycle, and PT twice in a cycle. It further recommended that a part-time one-to-one aide be assigned to the child to address any attention deficit she might have, and that she receive preferential seating in class (Transcript p. 1940; Exhibit SD-47). Neither the occupational therapist nor the physical therapist, who were in attendance, recommended summer services for the child (Transcript p. 1950), and the CSE did not recommend an extended school year program. I note that the CSE appears to have made its recommendations within 60 school days after receipt of consent to evaluate the child (see 8 NYCRR 200.4[c]). The child’s father consented in writing to the special education services on June 8, 1998 (Exhibit SD-126). The Board of Education approved the student’s individualized education program (IEP) on July 6, 1998 (Exhibit SD-128).
In late June 1998, respondent’s occupational and physical therapists conducted an AT assessment, which revealed the child was able to use a computer successfully and did not need individualized computer services (Exhibits SD-35 & 82). Indeed, her computer skills were reported to be above the norm for her age. Petitioners disagreed with the assessment and requested another AT evaluation. A second assessment performed by the BOCES indicated that the child had average skill with the computer, and did not need any special devices (Transcript p. 1956; Exhibit SD-39). Petitioners requested that the child be permitted to attend computer camp over the summer, and respondent made arrangements for the child do so (Transcript p. 2442; Exhibits P-BB & P-DD). However, petitioners were not satisfied with the first session of the program (Transcript pp. 2642, 2645-46). The child did not want to go back to computer camp that summer, after her mother became ill (Transcript pp. 628, 2500, 2650, 1961).
Despite his earlier consent to the CSE’s recommendations, the child’s father informed respondent by letter dated July 9, 1998 that he was unable to "sign off" on the child’s IEP because it was not "fleshed out" (Exhibit SD-130). He requested another CSE meeting and a statement of how the child would be taught to write and how her distractibility would be addressed. On August 10, 1998, the grandmother requested another meeting with the CSE (Exhibit SD-133). On September 2, 1998, she met with the CSE chairperson to review CSE records (Exhibit SD-136).
Respondent began to offer PT services and OT services to the child in first grade (Transcript pp. 632, 799, 801, 809; Exhibits SD-49 & 57). Although the child had scored in the average range on a September 1998 first grade reading assessment, her teacher recommended supplementing her reading instruction by placing her in a remedial reading program for 24 weeks. The program, called "reading recovery," is an intensive one-to-one tutorial that fosters accelerated learning (Transcript pp. 958, 2548-50, 2776; Exhibit SD-74). Later, the child participated with three or four students in an "early literacy" program in which she made good progress, as well as in a reading workshop and reading anthology program (Transcript pp. 958-60, 1040, 1077, 1089; Exhibit SD-79).
Petitioners requested that the CSE review the initial report by a second pediatric neurologist, Dr. Mannheim, and meet again when the full report was available (Exhibit P-QQ). The CSE convened on December 14, 1998, three days after it received the Mannheim report. The report indicated that the child showed signs of right hemisphere dysfunction, but that a progressive neurological disorder could not be ruled out. It suggested the child’s behaviors might be indicative of bipolar illness. The doctor recommended a mood stabilizer, an EEG, a brain MRI and a Central Auditory Processing (CAP) evaluation, and suggested that the use of Fast ForWord be considered (Exhibit P-J). He recommended the child receive more PT, OT, and speech therapy, and suggested help with social skills in a "small, structured classroom with as close to one-to-one teaching as possible." In addition to that report, the CSE had the report of a private psychiatric evaluation dated November 18, 1998. The psychiatrist indicated that the child was depressed and was experiencing stress due to her mother’s illness. The psychiatrist also reported that the child had a diagnosis of Anxiety Disorder, NOS, with "features of" attention deficit hyperactivity disorder (ADHD) (Exhibit P-SS). The psychiatrist recommended a smaller, self-contained classroom, and a full time aide for the child.
At the December 14, 1998 meeting, the CSE developed an IEP that implemented the recommendations contained in the Mannheim report for increased services in OT, PT, and speech therapy (Exhibit P-V). According to the notes of the meeting, a CAP would be done when the child was closer to age seven (Exhibit SD-147). The CSE decided the social skills program provided in the classroom was sufficient to meet the child’s socialization needs (Exhibit SD-147). The CSE considered a self-contained special education classroom, but rejected the idea, since the child was performing much higher academically than the children in that classroom and was making progress in the regular education classroom with her one-to-one aide (Transcript p. 1995). The child’s teacher reported consistent improvement in the child’s writing, and notable improvement in her ability to remain attentive since a recent increase in her medication (Transcript pp. 973 & 969). The child was not a behavior problem in her class of 22 children (Transcript pp. 125 & 995). The grandparents agreed to the CSE recommendations (Transcript p. 1995; Exhibit SD-147). The Board of Education approved the IEP on January 11, 1999 (Exhibit SD-147).
On January 21, 1999, the child’s grandmother asserted that the IEP she received in the mail did not reflect what petitioners thought had been discussed and agreed to (Exhibit SD-148). She testified at the hearing that after observing the child in the reading recovery class, she believed the child needed more help in reading (Transcript p. 2550). The grandmother requested that a CSE meeting be held in February. However, petitioners asked to reschedule the meeting for March 12, 1999 because of a family illness (Exhibit SD-149). The school district requested that petitioners bring all physician reports with them to the meeting (Exhibit SD-150). On the day before the CSE meeting, the child’s grandmother met with the first grade teacher to discuss the child’s performance. They agreed the child was immature, and they discussed the possibility of the child repeating first grade (Transcript p. 2552).
The March 12, 1999 meeting of the CSE was scheduled to be a program review and the first part of the annual review, since more medical information would be forthcoming (Transcript pp. 2008-09). An IEP was produced which was intended to govern the child’s education until a review could be scheduled on May 1, 1999 (Exhibit SD-2). The child remained classified as multiply disabled, and was to continue in regular education with the related services of OT, PT, light technology support, instructional modifications and a part-time one-to-one paraprofessional. Speech/language therapy was discontinued due to the child’s excellent progress (Transcript pp. 2010 & 2552). The possibility of retaining the child in first grade was discussed (Transcript p. 2018). An extended school year was recommended for OT and PT services only. It was agreed that the child would participate in a social skills group two times a month with the school psychologist (Exhibit SD-45).
At the meeting, petitioners requested additional evaluations, including a literacy assessment by the Stern Center in Vermont to further evaluate the child’s reading skills (Transcript pp. 2553-54). The CSE initially disagreed, but ultimately reimbursed the parents approximately $850.00 for the Stern Center evaluation. (Transcript p. 2284; Exhibits P-JJ & 174). The CSE chairperson testified that petitioners had no objection at the end of the meeting (Transcript p. 2021). The Board of Education approved the IEP on May 10, 1999 (Exhibit SD-161).
Once again, petitioners informed respondent more than a month after the meeting that they were not in agreement with the IEP. By letter dated May 20, 1999, they requested that respondent send the form to request an impartial due process hearing to them. Petitioners did not return the form until after the end of that school year (Exhibit SD-165) because they were waiting for the Stern Center evaluation, which did not arrive until July 1999 (Exhibit SD-182).
In April 1999, the Woodcock Reading Mastery Test-revised (WRMT-R) was administered to the child, who displayed some weakness in both basic reading skills and reading comprehension, both of which were at an early first grade level (Exhibit D-86). In May and June 1999, respondent administered the Test of Phonological Awareness (TOPA) to the child. On the TOPA, which was administered twice, the child evidenced a phonological delay. The evaluator cautioned that the delay was unlikely to be the sole cause of the child’s reading difficulties (Exhibit SD 99). The Slingerland Screening Tests for Identifying Children with Specific Language Disability (Slingerland) was also administered. Although the child obtained a low score, the evaluator noted that the results had been affected by the child’s poor motor control and poor attention to task (Exhibit SD 46).
A CSE subcommittee met with petitioners on June 17, 1999 to prepare for the second part of the child’s annual review (Exhibit SD-172). A possible placement in a 15:1+1 "blended classroom", i.e. a regular education class and a special education class, taught together in a double room by two teachers and an aide at respondent’s Sanford Street School, was discussed. When it met again on June 22, 1999, the CSE subcommittee reviewed a medical report from the psychiatrist who had been treating the child since September 1998 for ADHD and anxiety disorder (Exhibit SD-173). The subcommittee recommended that the child receive 30 minutes of OT three times per cycle and 30 minutes of PT twice per cycle during the summer. For the 1999-2000 school year, the subcommittee again discussed the blended class with petitioners, but no recommendation was made because the report from the Stern Center was unavailable (Transcript pp. 668-69, 828, 848; Exhibits P-X & SD-53). The CSE planned to reincorporate speech/language into the child’s IEP in order to provide additional assistance in phonological awareness (Transcript p. 2050). The child’s father consented to the summer services on June 22, 1999 (Exhibit SD-89).
A report of the Stern Center Literacy Assessment that had been performed on June 5, 1999 was received by respondent in late July 1999 (Transcript p. 2062; Exhibit SD-12). The Stern evaluator did not report actual test scores which the child achieved, but nevertheless opined that the child had phonological weaknesses and deficits in orthographic memory, in addition to ADHD, that affected her ability to read. The evaluator further opined that respondent’s reading recovery program was not sufficient to meet the child’s needs, and recommended that the child be placed in a smaller class and receive increased OT and PT. She also recommended the use of the Lindamood Phoneme Sequencing Program (LiPS).
The child’s grandmother met with respondent’s staff, including the teacher who would teach the blended class, for a planning meeting on August 9, 1999 at the Sanford Street School (Transcript p. 2061; Exhibit SD-80). The participants discussed the Stern Center’s recommendations, including the possibility of offering the LiPS program at the Sanford Street School through a speech/language therapist (Transcript pp. 2064-65). Respondent’s staff explained how the Stern Center’s other recommendations could be implemented in the blended class. The special education teacher and the child’s service coordinator both testified that the child’s grandmother seemed to leave with a positive feeling toward the blended program and approved of the recommendations (Transcript pp. 1205, 1564, 1573). However, the grandmother testified that she left the meeting with serious doubts about whether the child’s needs could be met in the blended classroom due to its size (Transcript pp. 2562-65).
Hours before the next scheduled CSE meeting on August 27, 1999, the school district received a letter from the child’s grandmother, stating that petitioners were not in agreement with respondent’s proposal to place the child in the blended class (Exhibit SD-179). The CSE met on August 27, 1999, with the child’s psychiatrist in attendance (Transcript p. 2067; Exhibits SD-92, 177, 178). The CSE chairperson testified that a new IEP was not completed during the long and difficult meeting (Transcript pp. 2073-74). Petitioners requested that the child be retained in the first grade at the Jackson Heights School with a different teacher, and that the March 1999 IEP serve as the child’s pendency IEP (Transcript pp. 2486-2490). The day after the meeting, the CSE chairperson contacted BOCES to learn whether the child could be placed in its self-contained classroom. However, the BOCES determined that the child’s needs were not severe enough to warrant placement in its special education classroom (Transcript pp. 2085-86, 2089; Exhibit SD-184).
In a letter dated September 4, 1999, petitioners requested an impartial hearing to resolve disagreements about the child’s IEP (Exhibit SD-182). Respondent attempted to arrange another CSE meeting before the start of the school year on September 8, 1999, in order to address the child’s reading needs and complete the IEP. However, meetings scheduled for September 7th, the day before school began, and other dates in September had to be cancelled (Transcript pp. 2080, 2088, 2094; Exhibits SD-140, 185, 190). In response to one of the invitations, the child’s father reportedly informed respondent he did not want to meet due to the pending impartial hearing (Transcript p. 1585).
At a mediation meeting on October 8, 1999, the parties reached agreement on a number of issues. They agreed that the child would continue to use a computer for writing, but that an assistive technology device called Intellikeys was not necessary. They also agreed that OT and PT staff would be present at CSE meetings, that the names and titles of all individuals expected to attend would be included on notifications, and that a functional behavioral assessment and a CAP would be done (Exhibit P-A). Petitioners raised for the first time the issue of reimbursement for the cost of Fast ForWord instruction with a private provider (Transcript pp. 2098-99). The CSE agreed to review information on Fast ForWord. The parties agreed that the March 12, 1999 IEP would be implemented.
On October 15, 1999, the CSE met with the child’s grandmother to work on a draft IEP (Exhibit SD-96). The parties reportedly spent two and one-half hours on the wording of the IEP, but did not reach the issue of reading goals and objectives. The CSE recommended a secondary classification as other health impaired (OHI). The CSE discussed the possibility of offering a program similar to Fast ForWord, called Earobics, which petitioners agreed to consider (Transcript pp. 2103 & 2573). At the hearing, the CSE chairperson testified that respondent was prepared to offer the LiPS program (Transcript p. 2107). On October 18, 1999, respondent approved the draft IEP to the extent it was completed (Transcript pp. 2196, 2214; Exhibit SD-205).
On October 25, 1999, a CAP was administered to the child. The evaluator reported that the child had difficulty performing some tasks such as auditory-language comprehension based problems, but noted that some of the child’s difficulties were due to her ADHD. He recommended the use of either Earobics or LiPS. (Exhibit P-E). However, petitioners rejected the Earobics program, and unilaterally enrolled the child in Fast ForWord, a computerized program that involves 100 consecutive minutes of work each day (Transcript p. 2573; Exhibit SD-6). The child traveled to the private provider’s site in Schenectady for eight weeks, with travel time of three hours round trip (Exhibit SD-195 & 196; Transcript p. 1443). Consequently, the child was absent from school for about four hours each day for two months.
Petitioners met briefly with the CSE on November 19, 1999, but left the meeting because they felt that the school attorney’s presence created an adversarial climate (Transcript p. 2389; Exhibit P5-H). The CSE completed the IEP in petitioners’ absence (Transcript p. 2111). The revised IEP for the 1999-2000 school year indicates that the CSE had classified the child as multiply disabled and other health impaired (Exhibit SD-14). The IEP provided for instruction in a regular education classroom, with one hour of resource room services per day. The child was to receive 30 minutes of individual OT as a push-in service once per cycle and 30 minutes of OT in a group as a pull-out service twice per cycle. She was also to receive 30 minutes of pull-out PT twice per cycle, and 30 minutes of speech/language therapy in a group twice per cycle. The CSE recommended that she also have the services of a one-to-one paraprofessional, as well as skilled nursing services. On the IEP, the CSE indicated that although the child did not meet the eligibility criteria for an extended school year instruction, it would recommend that related services be provided to her in the summer of 2000 at a future CSE meeting. The child’s IEP included annual goals for reading, language arts, reading/language and speech/language. Respondent approved the IEP in or about December 1999 (Transcript pp. 2197-98). Petitioners declined an invitation to review the completed IEP, and had not agreed to the IEP by the time the hearing began on January 10, 2000.
Petitioners had a speech/language evaluation of the child done at the Sunnyview Hospital and Rehabilitation Center in Schenectady on December 20, 1999 (Exhibit P-RR). The evaluator reported that the child had deficits in her reading and writing skills. Among other things, the evaluator recommended use of the LiPS program to improve the child’s language skills and incorporation of phonological awareness training into the child’s reading program.
On January 14, 2000, the child’s grandmother informed respondent that the child had begun one-hour daily sessions at home with the LiPS program, and asked respondent to pay the provider directly and to permit the tutor to come to the school for sessions (Exhibit P-5J). Petitioners also reportedly asked respondent to purchase a computer for their home (Transcript p. 2352).
The hearing began on January 10, 2000. In essence, petitioners contended that respondent had failed to identify their child’s disability promptly, had inadequately and tardily evaluated her, and had failed to provide an appropriate educational program for her. Petitioners asked the hearing officer to find that the Fast ForWord and LiPS programs were appropriate for the child, and to require respondent to reimburse them for providing those programs to the child. After 17 days of hearings, the proceeding concluded on April 4, 2000.
The hearing officer rendered her decision on June 20, 2000. She found that respondent had not violated the child find provisions of the Individuals with Disabilities Education Act in not identifying the child as a child with a disability at the beginning of the 1997-98 school year. She faulted respondent for not completing the OT and PT evaluations earlier in the child’s kindergarten year, but ruled that its failure to do so did not violate the law. She did find that respondent should have provided extended school year (ESY) services in OT and PT during the summer after the child’s kindergarten year. She ordered respondent to reimburse petitioners for the costs they incurred for OT and PT services at Glens Falls Hospital in the spring and summer of 1998.
The hearing officer further found that respondent had failed to provide an appropriate educational program in the 1998-1999 school year. Specifically, she felt that respondent should have taken a more comprehensive look at the child’s disabilities, and provided more intensive services earlier. While noting that the district had indeed recognized the child’s needs by providing reading recovery and social skills classes, she ruled that respondent should have initiated a full range of evaluations in those areas. She found that the 1998-99 IEP should have included goals and objectives for social skills, reading, and writing.
With respect to the 1999-2000 school year, the hearing officer concluded that respondent had failed to provide an appropriate educational program to the child because the child’s IEP for that school year did not address the child’s distractibility in a meaningful way. In her opinion, the child’s failure to pay attention prevented her from making gains in reading and writing. She ordered respondent’s CSE to design a program and select a placement that met the child’s unique needs, with special attention given to reading, writing and her distractibility. She also found that the CSE was not properly constituted at its meeting on August 27, 1999 because neither the child’s teacher for the 1998-99 school year nor her proposed teacher for the 1999-2000 school year attended the meeting, and because other members of the CSE were not personally familiar with the child. However, the hearing officer found that this defect did not amount to a denial of a FAPE because the IEP from that meeting was never approved by respondent. The hearing officer dismissed petitioners’ assertions that they had not been treated as equal participants in planning for the child’s educational program, and they had not received adequate notice of various actions taken by respondent or its CSE.
The hearing officer denied petitioners’ request for reimbursement for the Fast ForWord and LiPS programs because the programs did not meet the least restrictive environment (LRE) requirement, since the child was removed from the classroom for extended periods of time and missed her academic classes and other special education services.
Petitioners make various assertions with respect to the actions taken by respondent during the 1997-98 school year, when the child was in kindergarten. I find that those assertions are not properly before me because petitioners failed to challenge the appropriateness of the educational program for that year in a timely manner (Matter of Northeast CSD v. Sobol, 79 NY 2d 598 ). They did not request a due process hearing in connection with that year’s educational program (Transcript pp. 251-52). Moreover, the parties did not include the 1997-98 school year, or the summer of 1998 in the list of issues to be decided by the Hearing Officer, at the November 1, 1999 pre-hearing conference (Exhibit I.H. 2). When the Hearing Officer stated on the record that the issues to be determined were limited to the 1998-99 and 1999-2000 school years, the parties did not disagree (Transcript p. 1154). Since the appropriateness of the child’s educational program during that school year or the subsequent summer was not an issue to be determined by the hearing officer, I find that she exceeded her jurisdiction in ordering respondent to reimburse petitioners for the cost of private OT and PT services incurred in spring and summer 1998.
I further find that petitioners failed to timely challenge the child’s 1998-99 IEP, when they chose not to return the hearing request form to respondent before the end of the 1998-99 school year. However, I will address the adequacy of the educational program in that year since the parties and the hearing officer agreed on the record that the 1998-99 IEP was at issue. I do not agree with the hearing officer’s finding that the CSE failed to take a comprehensive look at the child’s disabilities, or the intensity of her needs in the first grade. The IEP for the 1998-99 school year was developed at the June 8, 1998 CSE meeting. At that time, the child’s possible neurological problems were not yet known. I note that the first pediatrician and the first neurologist to examine the child failed to diagnose right brain dysfunction. It was not until Dr. Mannheim’s report, received in December 1998, halfway through the school year, that respondent learned the child was suspected of having such a problem. Three days after it learned this new information, respondent convened a meeting at which it implemented many of the report’s recommendations. After learning in January that petitioners were dissatisfied with the December 1998 IEP, and trying to schedule a meeting for February that petitioners cancelled, respondent’s CSE duly reconvened in March. At that meeting, many of the report’s recommendations were implemented.
The CSE also did not have the psychiatrist’s report, which noted the child had depression and features of ADHD, until the December meeting. Moreover, the child’s teachers consistently maintained that her behavior was not a problem. While petitioners’ concern for the child is commendable, I do not see how respondent could have identified needs that were not yet discovered by the medical community (Transcript p. 2554). I find that respondent made every effort to convene the CSE or a subcommittee for discussion of each new issue raised by petitioners throughout the school year or summer (Exhibits 167 & 169).
I further find, based on the record before me, that respondent was not aware of any reading deficiencies that would have warranted providing special education services to the child during the 1998-99 school year. The child’s kindergarten teacher had found no weaknesses in reading or letter identification. Her first grade teacher testified that the child scored in the average range on assessments in September 1998, and January and May 1999, and her performance in content area subjects was average (Transcript pp. 943, 955, 974). The reading teacher testified that the child did not even score in the range that would qualify for "Title 1" (Chapter 1 of the Education Consolidation and Improvement Act) remedial services. The child participated in the reading recovery and early literacy programs, which were remediation services, rather than special education. Her participation in those programs was consistent with the federal and state requirement that each child with a disability be educated in the least restrictive environment. It was not until the Woodcock Reading Mastery Test was administered in April 1999, toward the end of first grade, that school staff had reason to believe that the student’s reading needs were not being met by the remedial instruction programs. Since respondent’s staff had no compelling evidence that the child needed to receive primary special education instruction in reading during most of the 1998-99 school year, there was no reason for the CSE to include reading goals and objectives on her IEP for the 1998-99 school year. Having reviewed the child’s June 8, 1998, December 14, 1998, and March 12, 1999 IEPs, I find that they accurately described the child’s needs, provided appropriate annual goals, and prescribed appropriate special education services for her. Accordingly, I find that respondent offered the child a FAPE during the 1998-99 school year.
As noted above, the hearing officer found that the CSE that met on August 27, 1999 to prepare the IEP for the 1999-2000 school year was not properly composed, in that the regular education teacher and school psychologist members were not familiar with the child. I must point out that there is no legal requirement that each member of the CSE be personally familiar with the child being considered by the CSE. However, the hearing officer correctly found that either the child’s current teacher or her proposed teacher must attend the CSE meeting at which the child’s IEP is prepared. Nevertheless, the August 27 IEP was not sent to respondent for approval, and a new IEP was prepared on November 19, 1999. Despite the delay, for which petitioners must share some responsibility, the child was not deprived of services.
Having reviewed the November 19, 1999 IEP, I find that it accurately identified the child’s special education needs, and it included appropriate annual goals and short-term objectives to address those needs. The remaining question is whether the CSE recommended appropriate services to afford the child a reasonable opportunity of meeting her annual goals. The hearing officer found that respondent failed to offer a FAPE during the 1999-2000 school year because of an alleged failure to address the issue of the child’s distractibility. While acknowledging that the CSE had addressed the issue in part by providing for an individual aide and preferential seating, the hearing officer found that the child needed to learn strategies to improve her attentiveness. She also observed that "[P]erhaps this aspect of her program didn’t need goals and objectives, per se, but it needed more explicit attention."
Upon review of the record, I must note that the child’s distractibility appears to have been more of an issue for the evaluators than for the school staff who worked with the child on a daily basis. The child’s first grade teacher during the 1998-99 school year testified that the child was not a behavior problem in her classroom, and that her behavior was less impulsive as the year progressed (Transcript pp. 125 & 973). Her first grade teacher during the 1999-2000 school year testified that the child was not disruptive, and that any attention problems were adequately handled by the one-on-one aide who was available for the child whenever the child was in the classroom (Transcript pp. 47, 61, 192, 195). In addition, I note that there was evidence the child was taking medication to address her attention deficits. The child’s IEP of October 15, 1999 indicated that her "…right brain disfunction [sic] and ADHD cause her to be inattentive, disorganized…which all impact the development of grade level reading, progress in the general education curriculum….". I find these statements adequately describe the impact of the child’s distractibility, and I agree with the hearing officer that specific goals and objectives for distractibility were not necessary. The hearing officer did not explain how the child was to learn strategies to improve her attentiveness. Perhaps she was referring to a behavioral intervention plan. In any event, I cannot agree with her that respondent failed to offer a FAPE for that reason.
I find that respondent met its burden of proving the blended classroom it proposed for the 1999-2000 school year would have met the child’s educational needs, and in particular, her distractibility. Respondent planned to structure the child’s school day, as it had in first grade, by providing the child with a one-to-one instructional aide, who would be present in addition to the paraprofessional aide assigned to the blended classroom as a whole. The CSE chairperson testified that the blended classroom would have been an excellent choice for the child (Transcript p. 2443). She explained that it was a concept the district had spent many years developing, through visits to other schools and a special course at Harvard, in order to provide special education opportunities in the least restrictive environment (Transcript pp. 2427-28). Placement in a small structured integrated setting accurately addressed the child’s needs for individual attention and a structured environment, while also providing appropriate role models and socialization opportunities in a regular education setting. Having found that respondent has met its burden of proving that it had offered to provide an appropriate educational program, I must also find that petitioners are not entitled to reimbursement for the cost of the Fast ForWord and LiPS training they obtained for the child.
I have considered all of petitioners’ remaining claims, including their objections to the hearing officer’s procedural determinations, and find them to be without merit.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS SUSTAINED.
IT IS ORDERED that the hearing officer’s decision is hereby annulled to the extent that it found that respondent should have provided ESY services to the child during the summer of 1998 and required respondent to reimburse petitioners for the cost of the OT and PT which they obtained for the child during the spring and summer of that year.