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 Arlington Central School District
Family Advocates, Inc., attorney for petitioners, RosaLee Charpentier, Esq., of counsel
Raymond G. Kuntz, P.C., attorney for respondent, Wendy Klarfeld Brandenburg, Esq., of counsel
Petitioners appeal from an impartial hearing officer’s decision which determined that respondent’s Committee on Special Education (CSE) had recommended an appropriate program for their son for the 1999-2000 school year. The appeal must be dismissed.
Petitioners’ son was a 15-year-old ninth grade student at Arlington High School when the hearing began in March 2000. He has been classified as learning disabled since the 1991-92 school year, when he was in the first grade in the City School District of the City of Mount Vernon (Exhibit 13). The student remained in the Mount Vernon schools through the completion of third grade in June 1994.
While in third grade, the student was evaluated at the Children's Evaluation and Rehabilitation Clinic at the Rose F. Kennedy Center at the Albert Einstein College of Medicine (Exhibit 13). A psychological evaluation revealed that the student had a very significant language processing difficulty involving short-term and long-term memory deficits, serious word retrieval problems, language organization deficits, and expressive language dysfunction. The boy’s psychoeducational evaluation revealed that he had language processing weaknesses in the areas of auditory discrimination, visual reasoning, expressive language, and visual discrimination of letter form and order.
The student transferred to the Arlington Central School District for the fourth grade during the 1994-95 school year (Exhibit 3). Respondent's CSE recommended that the student continue to be classified as learning disabled. Over the next several years, the student was enrolled in a variety of programs, with various revisions to his individualized education program (IEP) (Exhibits 22, 23, 26, 28, 34, 38, and 46).
The CSE began evaluating the student for its annual and triennial review during the spring of 1998, when he was thirteen years old and in the seventh grade. A psychoeducational evaluation was conducted on various dates in March and April 1998. The student achieved a verbal IQ score of 80, a performance IQ score of 113, and a full-scale IQ score of 95 on the Weschler Intelligence Scale for Children-III (WISC-III), placing him in the average range of intellectual functioning (Exhibit 52). The evaluating psychologist noted that the 33-point discrepancy between the student’s verbal and performance IQ score was significant. On the Wechsler Individual Achievement Test (WIAT), the student achieved standard scores of 72 (3rd percentile) for basic reading (decoding) and 80 (9th percentile) for reading comprehension. His reading composite score was 71 (3rd percentile), and his composite score for writing was 64 (1st percentile). The school psychologist reported that the student’s major academic weaknesses were in reading, spelling and written expression, and she recommended that he be encouraged to use context clues to compensate for his difficulty with identifying and decoding words. She noted that self-esteem continued to be an area of concern, especially regarding academic achievement. The psychologist recommended that annual goals to improve self-esteem be included on the student’s IEP for the 1998-99 school year.
An April 1998 triennial evaluation report (Exhibit 58) indicated that the student had an 85.75 academic average during the third quarter of the 1997-98 school year. Most of his teachers indicated that he was cooperative and showed good effort. The school psychologist reported that the student had adjusted well to school, but that his parent reported that his self-confidence was low. She further indicated that the student’s hypersensitivity to failure adversely affected his motivation at times.
In April 1998, respondent’s reading specialist noted that the student had progressed from a first to a fourth grade level on one test assessing his reading comprehension, and had progressed to a sixth grade level on another measure of comprehension. The reading specialist commented that while the student was not yet on grade level, he had "definitely made progress". She opined that with the appropriate instruction, his reading level would continue to increase (Exhibits 47 and 57).
At a program review on April 29, 1998, the CSE recommended that a speech/language evaluation be performed, after which the CSE would reconvene to discuss programming for the 1998-99 school year (Exhibit 60). The speech/language evaluation was conducted on May 29, 1998. At the time of the evaluation, the student was not receiving any speech/language services. Results of standardized testing showed that the student’s receptive and expressive language abilities were within the average range, and the evaluator indicated that speech/language therapy was not warranted (Exhibit 61).
On June 15, 1998, the CSE conducted its triennial review of the student and recommended his educational program for the eighth grade (Exhibit 63). The CSE recommended that the student be placed in a special education class with a 15:1 student-teacher ratio for English and study skills. It further recommended "integrated" special education instruction for math, science and social studies, for which the student would participate in regular education classes with assistance on a regular basis from a special education teacher or teaching assistant. Additionally, the CSE recommended that the student continue receiving resource room services one period daily to assist him with planning, organizing and managing his homework, as well as work on individual skills. To address the student’s weakness in reading, the CSE recommended that he participate in a remedial reading class scheduled on alternate days. The CSE determined that any weakness in speech/language skills that the student might have could be addressed in his special education program, and did not recommend any speech/language therapy for him. The CSE also recommended that the student receive three hours per week of special education itinerant services for reading during the summer of 1998 to prevent regression, and established goals and objectives for his summer reading program (Exhibit 64).
A neuropsychologist who privately evaluated the student at St. Francis Hospital on various days in July, August and September 1998 noted that the student was under the care of a psychiatrist for depression, and was taking Wellbutrin. On the WISC-III, the student achieved a verbal IQ score of 81, a performance IQ score of 121, and a full scale IQ score of 99, with the 40-point discrepancy between his verbal and performance scores described as significant. The neuropsychologist reported that the results of his examination were consistent with those of the student’s previous evaluations. He opined that the student appeared to have an auditory-linguistic deficit that inhibited his ability to integrate symbols with sounds and develop proper letter-sound relationships. He noted that the student had difficulty deciphering words and producing words on his own, which resulted in a profound reading disability. The neuropsychologist reported that the student manifested some degree of affective instability or dysthymia, and he opined that academic frustration and familial stress contributed to the student’s depression. He recommended that the student receive specialized instruction for sight vocabulary and phonics, and small special programming in other subject areas. He further recommended that the student participate in regular education programs for the nonacademic curriculum to counter his sense of separateness from his classmates. The neuropsychologist suggested that the student continue to receive counseling to improve self-esteem (Exhibit 61).
The student attended the Arlington Middle School for eighth grade during the 1998-99 school year. On December 15, 1998, the CSE met at petitioners’ request to review their son’s program (Exhibits 68 and 70). Upon review of the St. Francis evaluation, the CSE determined that the student would benefit from a more intensive reading program to address his decoding, recognition and comprehension skills. It recommended that the student be placed in a special class for reading one period daily, in place of his remedial reading class.
At its annual review on June 15, 1999, the CSE recommended that the student continue to be classified as learning disabled and be placed in a 15:1 special class for English, math, global history, and study skills while in the ninth grade of the Arlington High School during the 1999-2000 school year (Exhibit 77). It further recommended that the student participate in a daily intensive reading program with a reading specialist. The CSE meeting minutes indicate that the student’s special education teacher and his reading teacher were to work collaboratively on improving his reading and writing skills. It also recommended that the student participate in a regular education science class, the size of which had been reduced to 15 students. A special education teaching assistant was to be assigned to the science class. Additionally, the CSE recommended that the student receive 40 minutes of counseling twice per month. Various testing modifications were recommended, as was an occupational therapy consultation.
The occupational therapy consultation was conducted on June 18, 1999. The therapist noted that the student’s teacher had reported that the boy printed legibly, but did not use script. Upon review of the student’s notes, she reported that his handwriting ranged from nearly illegible to very small, neat printing. The therapist also reported that the student’s handwriting speed was functional for his grade level. The student had difficulty with some lower case cursive letters and did not remember the upper case letters due to lack of use. A keyboarding assessment revealed that the student’s keyboarding skills were slow, but that he responded well to a computer program that provided the opportunity for keyboarding practice. The therapist recommended that the student practice writing his signature and explore the use of touch-typing, but indicated that occupational therapy was not warranted (Exhibit 78).
The student’s final grades for the eighth grade included 80 for resource room, 86 for study skills, 66 for English, 71 for social studies, 70 for mathematics and 69 for science. A number of his teachers commented that he needed to apply more effort to his work (Exhibit 79).
On June 15, 1999, petitioners requested an impartial hearing because they believed that respondent’s instructional program was not meeting their son’s needs (Exhibit A). On July 7, 1999, respondent appointed a hearing officer who advised the parties by letter dated July 15, 1999 that he had scheduled the hearing to commence on August 12, 1999. The parents contacted the hearing officer on July 19, 1999 to request that the hearing be postponed to enable them to retain an attorney. The hearing officer granted that request. After several attempts to find a hearing date agreeable to the parties, the hearing officer scheduled the hearing to begin on December 1, 1999. Both parties agreed to extend the 45-day period within which the hearing officer was required by regulation to render his decision.
In the fall of 1999, the student attended Arlington High School for ninth grade. In October 1999, a teacher who administered the McCarthy Individualized Diagnostic Reading Inventory – Revised to the student reported that the student’s independent reading level was at the third grade, his instructional level was at the fourth grade and his frustration level was at the fifth grade (Exhibit 119). His comprehension levels were slightly higher. The teacher noted that the student was reluctant to engage in the reading process.
A first quarter interim progress report in October 1999 indicated that the student’s average was 70-74 for English, 80-84 for foundations of reading and writing, 70-74 for global history, 90-94 for mathematics, and 80-84 for biology (Exhibit 99). His study skills class teachers reported that the student showed steady and continual growth and was conscientious and hard working, but needed to improve his study habits. Other teachers commented that the student’s behavior and conduct were very good, and that his skill level was improving through good effort. At the end of the first quarter, the student received grades of 84 for English, 72 for global history, 88 for mathematics and 82 for biology. His foundations of reading and writing teacher reported that the student’s average was 80-84, and that he showed steady growth (Exhibit 84). On the Woodcock Reading Mastery Tests - Revised administered on November 29, 1999, the student achieved a grade equivalent score of 3.5 for total reading.
On December 1, 1999 when the impartial hearing was scheduled to begin, the parties engaged in an informal mediation session with the assistance of the hearing officer to attempt to resolve the matter (December 1, 1999 Transcript p. 8). The parties agreed to an adjournment to January 12, 2000. At the parties’ request, the hearing officer again agreed to extend the 45-day period to render a decision (December 1, 1999 Transcript pp. 9 and 10). Prior to agreeing to participate in the mediation session, the hearing officer advised the parties that if the mediation was unsuccessful, he would withdraw as impartial hearing officer upon the request of either party (Exhibit C). On December 31, 1999, respondent requested that the hearing officer recuse himself (Exhibit B). On January 3, 2000 the hearing officer recused himself, and a second hearing officer was appointed on January 24, 2000 (Exhibits C and D).
A second quarter interim progress report showed that at the end of December 1999, the student’s average was 80-84 for foundations of reading and writing, 70-74 for global history, 90-94 for mathematics, and 70-74 for biology (Exhibit 100). The student was absent seven days between November 16 and December 21, 1999, and his English teacher commented that his absences limited his class progress. For the second quarter which ended on February 1, 2000, the student received grades of 78 for English, 67 for global history, 66 for mathematics, and 73 for biology (Exhibit 94). His foundations of reading and writing teacher reported that his average was 80-84. The student had a total of 11 absences during that quarter. A report on the student’s progress towards achieving his IEP goals and objectives during the second quarter showed that the student had made some progress on most of his objectives (Exhibit 98).
In January and February of 2000, the student was privately evaluated at the Riverside Educational Center (Exhibit F). The evaluator, whose report was dated May 19, 2000, opined on the basis of the student’s performance on the Woodcock Reading Mastery Tests – R (NU), that his reading skills were significantly delayed. On the Slingerland Screening Test, the student had the most difficulty with a subtest measuring his ability to recognize vowel sounds correctly, a skill crucial for spelling. The evaluator concluded that the student was dyslexic, and she opined that he required a language arts program geared to an understanding of his individual needs and specifically trained professionals to implement those needs. She recommended that the student be placed in a private school specifically dealing with dyslexic students where he could learn the structure of the English language in a precise, explicit sequential manner.
The student’s third quarter interim period progress report showed that at the beginning of March 2000, his academic average was 80-84 for foundations of reading and writing, 70-74 for global history, 85-90 for mathematics, and 70-74 for biology (Exhibit 101). His study skills class teachers reported that the student needed to improve accuracy and care in his work, organizational skills and study habits. For the third quarter that ended on April 4, 2000, the student received grades of 70 for English, 57 for global history, 86 for mathematics, and 70 for biology (Exhibit 102). His foundations of reading and writing teacher reported that the student’s average was 75-79. The student had a total of 5 absences during that quarter, for a total of 19 through the third marking period. A fourth quarter interim progress report showed that in mid-May 2000, the student’s average was 70-74 for English, 80-84 for foundations of reading and writing, 45-49 for global history, 70-74 for mathematics, and 65-69 for biology (Exhibit 109). The English teacher commented that the quality of the student’s work had improved.
The impartial hearing began on March 1, 2000, and was held on various dates ending on July 7, 2000. Petitioners indicated that they requested a hearing to obtain an order requiring respondent to place their son at the Pine Ridge School (Pine Ridge), a private, residential school in Vermont approved by the New York State Education Department to provide instruction to children with disabilities (Transcript p. 17).
By letter dated March 10, 2000, the school district sought petitioners’ consent to administer standardized testing to their son in preparation for the student’s annual review (Exhibit 107). In response, the student’s father advised the school district to refer the request to its attorney for the purpose of contacting petitioners’ attorney, in view of the pending hearing (Exhibit 106). The school district sent a second notice dated May 17, 2000 requesting parental consent to administer standardized testing in preparation for the student’s annual review (Exhibit 108).
For the fourth quarter of the 1999-2000 school year, the student received grades of 68 for English, 43 for global history, 67 for mathematics, and 70 for biology (Exhibit 117). The student had 11 absences during the fourth quarter, for a total of 30 absences for the year. He scored below 50 on his final exams in English, global history and biology, and was therefore ineligible to receive credit for those courses. He received final grades of 67 for English, 56 for global history, 72 for mathematics, and 65 for biology.
The hearing concluded on July 7, 2000. The hearing officer rendered her decision on August 21, 2000. She noted that the student had been making satisfactory progress in his academic courses and was moving towards achieving a Regents diploma until his performance declined late in the 1999-2000 school year. The hearing officer found that respondent’s program had provided the student with appropriate specialized services to enable him to make reasonable progress toward his IEP goals in the least restrictive environment. Accordingly, she found that respondent had met its burden of proving that it had provided an appropriate program to the student during the 1999-2000 school year. Although that finding was dispositive of the matter, the hearing officer went on to find that there was insufficient information about Pine Ridge in the record for her to conclude that it would have been an appropriate placement for the student. Petitioners had also asked the hearing officer to order a summer placement for their son as compensatory education. The hearing officer found that the student was not entitled to a summer program because there was no evidence of academic regression during the summer, and that he did not meet the criteria for an award of compensatory education. Finally, the hearing officer ordered that a tutor be assigned to the student for two or three days per week to assist him with homework during the 2000-2001 school year.
As a preliminary matter, I note that respondent developed, reviewed, and revised the student’s 1999-2000 IEP on June 15, 1999, which was after July 1, 1998, the effective date of the federal regulations governing IEPs, but prior to January 6, 2000, the effective date of the state regulations which were promulgated to conform to the 1997 amendments to the Individuals with Disabilities Education Act (20 U.S.C. § 1400 et seq., hereinafter referred to as IDEA 1997). Therefore, in determining this appeal, I will apply the federal regulations governing IEPs effective July 1, 1998, and will denote references to the then applicable state regulations by the use of the phrase "previously found at".
Petitioners appeal from the hearing officer’s decision on a number of grounds. Initially, they argue that they were not offered the opportunity for a hearing until August 12, 1999, more than 45 days after their June 15, 1999 request for a hearing. Federal and state regulations require hearing officers to render their decisions within 45 days after the request for a hearing has been received by a board of education (34 C.F.R. § 300.511[a]; 8 NYCRR 200.5[i], previously found at 8 NYCRR 200.5[c]). However, a hearing officer may extend the 45-day period for a specific period of time at the request of either party (34 C.F.R. § 300.511[c]). The record shows that by letter dated July 15, 1999, the first hearing officer scheduled the hearing to commence on August 12, 1999. The record further shows that on July 19, 1999, the parents contacted the hearing officer requesting that the hearing be postponed to enable them to retain an attorney. The hearing officer granted that request. I recognize that the hearing was scheduled to begin more than 45 days after the hearing request was received by the Board of Education and urge respondent to ensure that hearings are scheduled in a more timely manner. However, I find petitioners’ claim that they were denied the opportunity for a timely hearing is without merit. As noted above, petitioners requested that the hearing be postponed from a date that was already beyond the 45-day requirement, suggesting that they had consented to, and in fact were seeking, a further extension of that time frame as permitted by 34 C.F.R. § 300.511(c). Moreover, I note that as part of the first hearing officer’s efforts to schedule the hearing, he granted requests from both parties to extend the 45-day period. I further note that the scheduling of the hearing dates and times, as well as the briefing schedule were agreed to by the parties. Under the circumstances, I find that petitioners’ due process rights were not violated.
Petitioners’ assertion that the IEPs prepared for the 1998-99 and 1999-2000 school years are inappropriate raises a question about the scope of this appeal. The record shows that petitioners requested a hearing at the June 15, 1999 CSE meeting during which the IEP for the 1999-2000 school year was developed. Though the hearing request is not limited to a specific year, the timing of the request clearly suggests that petitioners were challenging the IEP for the 1999-2000 school year. In fact, the student’s mother testified that she always brought a letter requesting a hearing to CSE meetings in the event she was not satisfied with the outcome of the meeting (Transcript p. 1011). She indicated that because her request for a tutor for her son was denied at the June 15 meeting, she submitted her letter requesting a hearing. However, no such request was made after the CSE recommended a program for the 1998-99 school year. I note that several times during the course of the hearing, respondent’s attorney set forth her understanding that the hearing was limited to the appropriateness of the IEP for the 1999-2000 school year. Petitioners did not attempt to clarify the record, or otherwise indicate that they also were challenging the 1998-99 IEP. In fact, their attorney acknowledged that the hearing was limited to the appropriateness of the 1999-2000 school year (Transcript p. 1066). The hearing officer limited her decision to the 1999-2000 IEP, as will I. I do not review issues which were not raised at the impartial hearing (Application of a Child with a Disability, Appeal No. 99-60).
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 ). 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).
Petitioners claim that the IEP statement of their son’s current levels of functioning was inadequate. However, they fail to identify a basis for their claim. I have nevertheless reviewed the IEP, and find that it does accurately identify the student’s present level of performance. Federal regulation requires that an IEP include a statement of the student’s present levels of educational performance (34 C.F.R. § 300.347). In assessing children with disabilities, school districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests or any combination thereof (Appendix A to Part 300 Notice of Interpretation, Section I, Question 1). The student’s IEP includes his scores in reading and mathematics from group and individual standardized achievement tests administered in April and May 1999, as well as a standardized intelligence test administered in March 1998. It also contains results of other tests assessing the student’s written language skills, and a diagnostic test assessing his speech/language skills from tests administered in May 1998 and May 1999 respectively. I note that the June 15, 1999 CSE minutes are annexed to the student’s IEP (Exhibit 77). The minutes provide additional information regarding the student’s performance on the assessment tools. I find that the IEP properly identifies the student’s present levels of performance.
Petitioners also claim that their son’s annual goals and short-term objectives were not properly assessed, that the short-term objectives listed on the student’s IEP were to be measured annually and were not reasonably planned to accurately measure progress. Federal regulations require that an IEP must include a statement of measurable annual goals, including benchmarks or short-term objectives related to meeting the child’s needs that result from his disability to enable him to be involved in and progress in the general curriculum, and meeting the child’s other educational needs that result from his disability (34 C.F.R. § 300.347).
The student’s IEP includes annual goals in reading, written language, including spelling, English, and study skills, as well as social/emotional goals. I find that the annual goals relate to the student’s needs resulting from his disability. Additionally, each annual goal must include either short-term objectives that generally break the skills described in the annual goal down into discrete components, or benchmarks, establishing expected performance levels that allow for regular checks of progress toward achieving annual goals (Appendix A to Part 300—Notice of Interpretation, Section I, Question 1). There are three written language goals with two to three short-term objectives supporting each goal; two reading goals, one with six supporting short-term objectives and one with three; one goal for study skills with five supporting short-term objectives; and one English goal with seven supporting short-term objectives.
As petitioners assert, each short-term objective has an evaluation date of June 15. However, the record shows that annual goal progress reports are completed on a quarterly basis (Exhibits 98, N and O). One of the student’s special education teachers testified that the quarterly reports indicated how much of the goal the student had accomplished in that quarter (Transcript p. 541). He explained that "good progress" meant that the student was making good progress toward achieving the percent set forth in the goal by the end of the school year (Transcript p. 542). The purpose of including short-term objectives or benchmarks is to enable a child’s teachers, parents and others involved in the process to gauge at intermediate times during the year how well the student is progressing toward achievement of the annual goal, and, if appropriate, to revise the IEP consistent with the student’s instructional needs (Appendix A to Part 300—Notice of Interpretation, Section I, Question 1). I find that respondent complied with the intent of the regulation by preparing annual goal progress reports on a quarterly basis. I note that additional information about the student’s performance was provided through interim reports for each quarter. While I urge respondent to be more mindful about including incremental dates on its IEP, I am not persuaded that the entire IEP should be found to be inadequate because of that omission. I note that a purpose of IDEA 1997 is to improve the IDEA through provisions that place emphasis on what is best educationally for children with disabilities, rather than on paper work for paper work’s sake (H. R. REP No. 95, 105th Cong., 1st Sess. ).
I am not persuaded by petitioners’ contention that the IEP was deficient because its annual goals were not established to accurately measure progress. The short-term objectives described the specific skills to be worked upon, the expected rate of success, and the evaluation procedures, e.g., teacher observation, teacher devised tests and student productivity.
Petitioners also claim that respondent’s program was inappropriate because their son requires a significantly greater level of intensity in services specifically addressing his disability. They contend that he has not benefited from the programs provided by the school district. 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 chairperson of the CSE testified that the IEP was carefully constructed to give the student the reasonable likelihood of being successful in his areas of deficits, such as reading and writing, and to provide support to him for the content areas. She stated that the student’s study skills and social/emotional goals also addressed his needs. She further testified that small classes were specifically chosen in order to maximize the student’s chance to learn the individual subjects, and provide him with the assistance he required with written material and reading and writing (Transcript pp. 259-60). I note that the program recommended for the 1999-2000 school year differs from the program initially recommended for the 1998-99 school year in that it replaces the integrated classes with special classes in social studies and mathematics, thereby providing a more intensive level of assistance. For science the student was placed in a class with 15 students with a special education teaching assistant. Counseling was also added.
To address the student’s reading and writing needs, the CSE recommended that the student be placed in a daily intensive reading program. The CSE directed the student’s special education English teacher and his reading teacher to work collaboratively. The reading teacher indicated that he used a multisensory approach that took into consideration the individual strengths and weaknesses of each student in the class. He further indicated that he worked with the student in a directed approach every day focusing on sound-symbol relationships and phonics generalizations, reading comprehension, and the interaction between reading and writing (Transcript pp. 404-5). He described the process as going from seeing to hearing to saying to writing to applying (Transcript p. 411). The teacher noted that he needed to make sure that he kept the student focused and directed to the activity at hand.
The teacher of the study skills class testified that the class had fifteen students and three faculty members. He indicated that the students worked on activities related to their individual deficit areas. The teacher worked with small groups of students on assignments to reinforce material. He testified that such an approach provided a good work environment in which the students had an opportunity to complete their assignments and prepare for exams (Transcript pp. 511-16). The witness also taught the student’s global history class. He testified that he read with his student, explained what had been read, and presented information in a variety of modalities (Transcript pp. 516-17). He also testified that copies of class notes were available to the students, and that he modified the curriculum by breaking down assignments into manageable tasks and reducing the amount of information presented at one time (Transcript pp. 530, 534-35).
The student’s English teacher testified that there were 15 students in her class, and that she was helped by a teaching assistant. Although she used ninth grade textbooks, the teacher modified the instructions for her students, who were reading on a fifth to sixth grade level. She indicated that she reinforced information by providing review, highlighting, teaching note taking, and providing class notes (Transcript pp. 616, 619). The English teacher collaborated with the student’s reading and study skills teachers by working on assignments together and discussing the student’s progress (Transcript p. 628).
Based upon the information before me, I find that the student received special education instruction that addressed the needs caused by his disability. The instruction that his teachers provided to him was consistent with the recommendations made by the individuals who had evaluated him.
Petitioners assert that the student has not benefited from the recommended program. I disagree. I find that the record demonstrates that the student has made progress while in respondent’s schools. The record shows that the student improved his grade equivalent score from 2.2 for total reading on the CTBS in April 1998 to 3.2 in April 1999. Additionally, the student’s total reading score on the WIAT improved from the third percentile (3.7 grade equivalent) to the fifth percentile (5.1 grade equivalent) during that time frame. In the absence of parental consent in the spring of 2000 for the administration of the WIAT and other tests, there are no standardized test results in the record to assess the student’s progress during the 1999-2000 school year. Therefore, I must base my review on teacher observations.
The student’s teachers during the 1999-2000 school year reported that petitioners’ son had made fairly good progress, notwithstanding his inconsistent performance. The teacher of fundamentals of reading and writing testified that he had noticed inconsistencies in the student’s work ethic and behavior (Transcript p. 434). He estimated that the student’s independent reading level was at fourth or fifth grade, and his instructional level was at fifth or sixth grade, with a frustration level at seventh grade. This shows an improvement of approximately one year from formal testing conducted in October. His English teacher testified that the quality of the student’s work had improved since the beginning of the year (Transcript p. 618). She reviewed the student’s IEP goals in reading and writing and identified the areas where progress was made (Transcript pp. 626-27). The global history teacher testified that the student’s progress had been inconsistent throughout the year, and had waned since January (Transcript pp. 510, 513). The science teacher testified that the student was absent four of the last five days of school, and missed review for the final exam (Transcript p. 911). She indicated that he was successful in her class, but his absenteeism had affected his ability to pass the course (Transcript pp. 915-16).
While the record shows that the student’s report card grades declined over the course of the year, it also shows that his motivation and effort declined during the same period. The student was absent for a total of 30 days during the year, 11 of which occurred during the fourth quarter. In effect, the student was absent from school for approximately one-sixth of the 1999-2000 school year, which clearly had an effect upon his performance in school. With consistent attendance and motivation, the student demonstrated that he could make progress and benefit from his educational program, as evidenced by his improvement between 1998 and 1999 on the WIAT, the improvement in his reading level as assessed by his fundamentals of reading and writing teacher, and his grades for the first quarter of 1999-2000. I find that his advancement has been more than merely "trivial" (Mrs. B. v. Milford Bd. of Educ., 103 F. 3d 1114 [2d Cir., 1997]), and that his available standardized test scores as well as his report card grades provide ample evidence of the appropriateness of respondent’s program (Walzac v. Florida UFSD, 142 F.3d 119 [2d Cir., 1998]). Accordingly, I find, as did the hearing officer, that respondent has met its burden of proving that it provided an appropriate educational program to petitioners’ son during the 1999-2000 school year.
I have considered petitioners’ other claims which I find to be without merit.
THE APPEAL IS DISMISSED.