01-062

      Petitioners appeal from the decision of an impartial hearing officer which denied their request for reimbursement of their son’s tuition at the Maplebrook School during the 2000-01 school year, based on a finding that respondent offered to provide a free appropriate public education (FAPE) to their son. The appeal must be dismissed.

        This is the second appeal involving petitioners’ son. In the first appeal, Application of a Child with a Disability, Appeal No. 00-084, I found that respondent did not have a valid individualized education program (IEP) in place at the beginning of the 1999-2000 school year, and I ordered respondent to reimburse petitioners for their son’s tuition at Maplebrook during that school year. Maplebrook became the student’s pendency placement for the 2000-01 school year, by virtue of my decision (34 CFR 300.514[c]). However, that fact did not make this proceeding with respect to that school year moot.

        Petitioners’ son was 18 years old and attending Maplebrook as a day student when the hearing in this case was held. Maplebrook, which is located in Amenia, New York, is a school for learning disabled youth with IQs between 70 and 90. It has not been approved by the New York State Education Department to provide instruction to children with disabilities (Transcript p. 517).

        The student’s medical and educational history and prior evaluations are described in detail in the earlier decision. As an infant, he was diagnosed with hydrocephaly, and underwent surgery for the insertion of a shunt to relieve pressure on his brain. He received speech/language therapy (S/LT), occupational therapy (OT) and physical therapy (PT) in a preschool program, prior to attending a self-contained special education kindergarten. He entered that class after respondent’s Committee on Special Education (CSE) had recommended that he be classified as learning disabled. The student remained in respondent’s special education and inclusion classes throughout elementary school (Exhibit P-G; Transcript pp. 417-18). He attended respondent’s middle school for sixth and part of seventh grade, before being removed for home schooling by his mother because of academic and social/emotional difficulties.

        The student returned to respondent’s middle school, where he was enrolled in self-contained classes for academic subjects in the eighth grade. One teacher noted at the end of the year that the student was having emotional difficulty and recommended a psychiatric evaluation (Exhibit P-G). However, no evaluation was apparently performed. In ninth grade, during the 1997-98 school year, petitioners’ son was placed in self-contained classes for academic subjects, but during the year he entered a regular education global studies class, which he failed (Transcript p. 423; Exhibit SD-15). In February 1998, the Board of Cooperative Educational Services for Dutchess County (BOCES) conducted an extensive vocational evaluation and recommended that he participate in its School-to-Work Transition program.

        For tenth grade during the 1998-99 school year, the student was placed in a 12:1:1 special education inclusion class with five hours a week of career exploration, and he received 40 minutes of counseling per month (Exhibit P-B). He reportedly worked at different jobs, in which he had expressed an interest, but the record indicates that he did not like the work program, nor did his parents (Transcript p. 429; Exhibit P-H). His mother testified that she thought the work was too difficult physically but not challenging enough intellectually for him (Transcript p. 430). At a pre-planning meeting with school staff toward the end of his tenth grade year, his parents discussed the possibility of his participating in a more academic program (Transcript p. 434).

        The CSE initially met on May 3, 1999 to develop the student’s IEP for the 1999-2000 school year when the student would be in 11th grade. However, it did not complete the IEP on that date. Petitioners advised respondent in July 1999 of their intention to place their son in Maplebrook’s extended day program for the 1999-2000 school year and to seek reimbursement for the cost of his tuition in that program. The CSE reconvened on September 2, 1999, but it could not complete its work on the student’s IEP for the 1999-2000 school year because the CSE did not have its parent member. It ultimately completed the IEP, which provided for special education class instruction in all academic subjects except Regents biology, on October 26, 1999. The IEP also provided for 40 minutes of group counseling once per month.

        Petitioners enrolled their son at Maplebrook in September 1999. In a letter that the CSE chairperson received on October 20, 1999, petitioners requested a due process hearing to obtain tuition reimbursement and four years of compensatory education for their son. On September 20, 2000, the hearing officer found that the student had been appropriately classified as learning disabled and that respondent had offered to provide a FAPE to him for the 1999-2000. She denied petitioners’ request for an award of tuition reimbursement, as well as their request for compensatory education for their son. On November 21, 2001, I sustained petitioners’ appeal from the hearing officer’s decision denying them tuition reimbursement, upon findings that respondent had not had an IEP in place for the student by the beginning of the 1999-2000 school year, that the student’s special education needs had been met by Maplebrook, and that equitable considerations supported petitioners’ claim for an award of tuition reimbursement. However, I further found that the student was not entitled to receive compensatory education.

        On December 13, 1999, the parents took their son to a neurologist, who reported that the student told him that he had been having symptoms of insomnia, fatigue, auditory hallucinations, sadness and suicidal ideation in the weeks before the appointment. The student also reportedly mentioned that he used marijuana for depression. The neurologist noted that the student was emotionally involved in a stressful relationship with a girl in his self-contained class at respondent’s district. The doctor suspected the student had a mood disorder and a possible "thought disorder." He ruled out seizures, but recommended psychiatric evaluation and care so that psychiatric issues would not hamper the student’s academic potential. He opined that Maplebrook was a good placement for the student because it freed him from the distraction of other students (Exhibit SD-13).

        The student was also privately evaluated by a psychologist at the end of December 1999. The psychologist reported that the student had achieved a verbal IQ score of 89, a performance IQ score of 66, and a full scale IQ score of 78, indicating that his overall intellectual functioning was in the high end of the borderline range. The psychologist noted that the significant discrepancy between the student’s verbal and performance IQ scores was consistent with previous test results. He also noted that the student’s verbal comprehension and reasoning appeared to be affected by word finding difficulties and/or circuitous associative thinking. The student displayed deficits in perceptual-motor and perceptual-organization functions, motor planning and processing speed, and exhibited delayed recall of various types of information. The student achieved standard scores of 95 for broad reading, 81 for broad math, and 90 for broad written language on the Woodcock-Johnson Tests of Achievement - Revised, a standardized achievement test. The psychologist reported that the student tended to neglect or narrowly scan his environment, particularly when he perceived it to be complex, and that attention and emotional factors became more pronounced when he was pushed beyond his capacity to assimilate information. He offered various suggestions for instructing the student. The psychologist noted that the student had been intermittently involved in psychotherapy since 1989, and had received psychiatric treatment with Risperdal within the previous year (Exhibit SD-10).

        The CSE arranged for certain testing to be done prior to its annual review of the student. The Wechsler Individual Achievement Test (WIAT) was administered by a special education teacher at Maplebrook on May 15, 2000. The student achieved standard scores of 76 for reading composite, 69 for math composite, 82 for writing composite, and 81 for listening comprehension (Exhibits SD-8 & 9). At the parents’ request, the CSE conducted two additional evaluations, one in physical therapy and the other in occupational therapy (Exhibit SD-10). The PT evaluation, done in June 2000, noted that the student had some limitations, particularly in motor planning, but found they were not significant enough to limit the student’s ability to attend school or to require ongoing therapy (Exhibit SD-5). The June 21, 2000 OT evaluation revealed some difficulty in motor planning for new tasks, but not enough to warrant ongoing therapy (Exhibit SD-4). The evaluator recommended OT consultation when the need arose to address a specific motor planning task.

        The CSE’s annual review was scheduled to occur on June 15, 2000, but the parties were unable to meet on that date (Exhibit SD-6). On July 11, 2000, the parents wrote to request dates for a CSE meeting, as well as copies of the PT and OT reports and other test results (Exhibit P-I). Respondent sent the OT and PT reports on August 22, 2000 and announced a meeting would be scheduled for August 31, 2000 (Exhibit P-J). On August 29, 2000, the parents asked again for test results (Exhibit P-K).

        The CSE met for its annual review on August 31, 2000 (Transcript pp. 38-39). The CSE reviewed the results of the student’s last psychological evaluation in December 1998, as well as the private neurological and psychological evaluations in December 1999. It also reviewed the student’s report card from Maplewood, and noted he had passed the Regent’s Competency Test (RCT) in Writing (Exhibits SD-7, SD-11). The CSE developed an IEP that provided for 12:1+1 special classes for English and math, and 15:1 special classes for global studies, and science, as well as one period of resource room per day. After an extensive discussion about the student’s social skills and self-esteem, the CSE recommended individualized counseling twice a month with the school psychologist and ten sessions of small group counseling with a student assistance counselor to strengthen his social skills (Transcript pp. 96-98, 186, 244-46). The student’s program was also to include a community-based work study program with job coaching, and an OT consultation. The CSE chairperson testified at the hearing in this proceeding that the student would have focused principally on academics, rather than vocational training, during the 2000-01 school year (Transcript pp. 103-04).

        The student’s IEP included test modifications, such as extended time and flexible setting, as well as a transition plan (Exhibit SD-2). After reviewing the student’s previous credits and the courses he took at Maplebrook, the CSE determined that he had not earned enough credits to enter the 2000-01 school year as a senior and it identified him as an 11th grader (Transcript pp. 76-77, 219). Respondent’s special education director acknowledged at the hearing that the student would have been in classes commonly taken by ninth and tenth graders, and it would take him approximately three more years to graduate with a high school diploma (Transcript pp. 221-24).

        Petitioners rejected the IEP at the meeting, and informed the CSE they were placing their son at Maplebrook for a second year (Transcript p. 459). A copy of the IEP was hand delivered to the parents on September 5, 2000 by courier, prior to the opening of school on September 6, 2000 (Transcript pp. 122-24; Exhibit SD-1). On October 18, 2000, the parents wrote to respondent reiterating their position regarding the IEP, and requesting class profiles for the recommended classes (Exhibit P-L). On November 6, 2000, the special education director responded that he did not routinely develop class profiles for special education classes (Exhibit P-M). On January 6, 2001, the parents formally requested an impartial hearing (Exhibits IHO-1, P-O).

        In January 2001, the student passed the RCT in Reading with a 79, but failed the RCT in Math with a 55 (Exhibit P-Z). On January 11, 2001, a second neurologist reported he had seen the student as a follow-up for paranoid delusions. The neurologist noted that although the student was taking Depakote for mood stabilization, he reportedly continued to have some paranoid ideation. He prescribed Risperdal, an antipsychotic, for the student. No evidence of a seizure disorder was found. The neurologist believed that the student had an obvious thought disorder characterized by tangential and perseverant thoughts, and a mood disorder and paranoid delusions (Exhibit P-P).

        The parents also obtained an independent educational evaluation on April 14, 2001 (Exhibit P-GG). The evaluator noted that the student appeared to present more as a brain injured than a learning disabled student, based upon his splinter skills and underlying neurological impairment, and suggested that he could be classified as other health impaired. On the WIAT, petitioners’ son achieved standard scores of 90 for total reading, 69 for total math, and 84 for total writing, as well as a standard score of 92 for total reading on the Woodcock Reading Mastery Test (WRMT). The educational evaluator recommended that the student be viewed as a young man with multiple special needs and that he be carefully prepared for post-high school activities. She recommended that he be considered for vocational training, noting that he had relatively strong academic skills. She also recommended that he be placed in a school with a small, structured learning and social environment (Exhibit P-GG).

        The hearing took place on five days between March 7, 2001 and May 8, 2001. The hearing officer rendered her decision on June 27, 2001. She found that the student’s IEP for the 2000-01 school year accurately identified his needs, and established goals and objectives that addressed his learning needs. The hearing officer noted that the CSE had been responsive to the parents’ desire for a more academic program, and she found that its recommendation for Regents classes within the small, supportive special education environment was appropriate for the student. She further found that he would have been appropriately grouped for instructional purposes. She was satisfied that the recommended counseling twice a month, and the group social skills sessions would have met the student’s social/emotional needs. The hearing officer concluded that the Board of Education had met its burden of proving that it had offered to provide a FAPE to the student during the 2000-01 school year, and that petitioners had not met their burden of proving that Maplebrook was meeting the student’s educational needs during the 2000-01 school year. She denied petitioners’ request for an award of tuition reimbursement. Finally, she recommended that respondent work closely with the student and his parents to locate a suitable post-secondary program.

        Petitioners challenge the hearing officer’s finding that respondent had offered to provide a FAPE to their son on procedural and substantive grounds. I will first consider their procedural objections. They assert that respondent unduly delayed in providing them with copies of the reports of the evaluations that were performed in the spring of 2000, although they acknowledge receiving some of the reports before they met with the CSE on August 31, 2000. I note that they did not request certain reports until two days before the meeting. Petitioners also contend that their son’s annual review should have been conducted by the CSE prior to August 31, 2000. In petitioners’ prior appeal involving the 1999-2000 school year, I found that respondent had failed to have an IEP in place at the start of that school year. However, petitioners concede that in this instance they did in fact receive their son’s IEP just prior to the start of the 2000-01 school year. Petitioners further contend that respondent unduly delayed in responding to their request for profiles of the special education classes that the CSE had recommended which hindered their preparation for the impartial hearing. While I agree that respondent should have promptly made such information available to them, I cannot conclude on this record that petitioners’ due process rights were violated.

        Petitioners argue that the IEP that the CSE prepared for their son was inadequate and inappropriate. They contend that the document does not accurately identify each of their son’s special education needs. I first note that petitioners did not expressly challenge the appropriateness of their son’s classification as learning disabled at the hearing, although they now appear to assert that their son’s multiple needs are more extensive than the classification of learning disabled would suggest. Since the issue of classification was not raised below, I do not reach it in this review. I must point out that having a different classification would not necessarily result in a different educational program.

        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 [1983]). 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 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the 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 assert that the IEP failed to address their son’s physical and emotional needs. They contend that their son’s PT and OT evaluations revealed that he had needs that should have been described in the IEP, which should have included appropriate annual goals and short-term objectives, as well as provision for PT and OT. I find that their contention is not supported by the record. The IEP accurately described his physical development. The physical therapist who evaluated the student in June 2000 specifically found that the student’s muscle tone was slightly decreased, but his range of motion and muscle strength were within normal limits. The evaluator concluded that school based physical therapy services were not indicated (Exhibit SD-5). Petitioners have failed to present any competent evidence to the contrary.

        The occupational therapist who evaluated the student in June 2000 reported that he had achieved an overall standard score of 69 for visual motor integration, with perceptual skills being greater than motor coordination. Using the ETCH, a criteria based assessment, the evaluator noted that the student had demonstrated adequate printing legibility. She also noted that his handwriting speed of 18 words per minute was functional. Although fine motor tasks were described as being difficult for the student because of his notable motor planning deficits, the evaluator reasoned that it did not per se afford a basis for providing OT to the student as a related service. Instead, she recommended consultant OT service when needed. The IEP provided that OT consultation would be provided, and the CSE minutes annexed to the IEP indicate that it would be provided for certain purposes, just as the evaluator had recommended.

        The parents also contend that the IEP does not reflect their son’s emotional needs. I note that in my decision involving the student’s IEP for the 1999-2000 school year, I urged respondent to consider the student’s current psychiatric condition when it prepared any future IEP for him. Respondent had not received my decision when its CSE prepared the IEP for the 2000-01 school year. However, the CSE reviewed the December 1999 neuropsychological and neurological examination reports, and the student’s reports from Maplebrook at its August 31, 2000 meeting. On his IEP, the CSE noted that petitioners’ son tends to become overwhelmed when presented with multiple tasks and assignments, and that he needs to be seated close to his teacher in order to maximize his attention. The CSE also noted that the student acted inappropriately at times and needed help improving his social skills. This description is consistent with the requirement that an IEP describe how a child’s disability affects his involvement and progress in the general curriculum (34 C.F.R. § 300.347[a][1][i]).

        Although there are references to more significant emotional problems such as mood swings, delusions and hallucinations in some of the private evaluation reports, I must note that there is no evidence that those problems have manifested themselves when the student is in school. Indeed, the dean of Maplebrook testified that he knew the student quite well, and never observed any of those negative emotional characteristics (Transcript pp. 534-35; see also Exhibit P-EE). I find that the CSE adequately described the student’s social and emotional needs on his IEP for the 2000-01 school year. It determined that his emotional needs could be appropriately met through the counseling goals and objectives, and the support he would receive from intensive special education instruction and the resource room. Upon the record before me, I agree with that determination.

        Petitioners object to their son’s IEP goals and objectives, claiming that they are not individualized, do not contain objective mastery criteria, and lack mastery dates for each objective. I find that the annual goals and objectives are appropriate to the needs of this student, and are not as vague as petitioners appear to believe. Although all mastery dates were listed as June 2001, I note that the IEP also provides for quarterly reviews, which would be the occasions to assess progress and make adjustments in objectives and goals. Petitioners also contend that the IEP should have included annual goals for English, science, and global studies. I note that those subjects were to be taught in special education classes that followed the New York State curriculum. This student’s IEP goals focused specifically upon the deficits and behaviors that precluded him from being successful in the regular education environment, as well as certain basic academic skills. I find that they were appropriate. As for petitioners’ claim that the goals and objectives were the same as those from the previous year’s IEP, I credit the CSE chairperson’s testimony that "…the reason [some] goals are carried forward is they’re key goals for a high school student and they’re applied to the different subjects the student is taking." (Transcript p. 153).

        The next question is whether the CSE recommended appropriate special education services to reasonably afford the student the opportunity to achieve his IEP annual goals. As noted above, the educational program recommended by the CSE was more academically oriented than vocationally oriented. Petitioners contend it was arbitrary for the CSE to change the emphasis of their son’s program without thoroughly evaluating his needs. The student’s mother testified at length about his severe intellectual and physical limitations (Transcript pp. 561-592). However, she also testified that she had objected to the vocational program respondent had provided to her son in previous years, because it was not intellectually challenging enough and placed him with mentally retarded students (Transcript p. 563). At the September 1999 CSE meeting, she discussed her desire that he take a more academic program and defer his vocational training (Transcript p. 435). Though she had concerns about placing her son in respondent’s proposed special education classes because she thought the more savvy students in these classes would take advantage of him, she wanted to have him with peers who were good role models because he models behavior (Transcript pp. 604, 624-25).

        I find that the classes proposed for the student in 2000-01 were appropriate for him. I note that in the most recent OT evaluation, the therapist stated that the student had hit a plateau after eight years of OT and that his printing and typewriting skills were adequate. She indicated that his strengths were verbal skills and visual perception and his greatest weakness was motor planning new tasks. She suggested that he receive shorter written assignments, that new motor tasks be broken down into smaller parts, and that he learn to state to others his need for simple directions. I would also note that his scores on achievement tests indicate an ability to benefit from the proposed special education classes. On the WIAT, he received a 90 in total reading and an 84 in total writing, and he scored a 92 on the WRMT.

        Moreover, the record indicated that he would have been suitably grouped in the proposed classes, which consisted of students who were mostly learning disabled and had average to below average IQs (Exhibits SD-16, 17, 18, 19 & 20). His proposed special education English teacher testified that, based on the student’s test scores and his IEP, which she reviewed, he had needs similar to the other students in her class and that he would have benefited from instruction (Transcript p. 370). His proposed Math 1RA teacher testified that there were three emotionally disturbed and three learning disabled students in the class, and that petitioners’ son would have benefited from instruction in his class (Transcript pp. 393, 406; Exhibit SD-17). Even the parents’ expert, Dr. Smelter, testified the student could be placed with a learning disabled population, as long as it did not include emotionally disturbed children who acted out (Transcript p. 651). There is no indication in the record that this would have been the case, if the student had been enrolled in the proposed classes.

        The parents’ expert did not think the student could be successful in a Regent’s program, based on her opinion that he was not capable of deductive reasoning (Transcript p. 658). Nevertheless, taking the entire record into account, I find that the change to the more academic program was at the parents’ request, and that respondent would have provided the proper support to help the student succeed in the program. The student would have been placed in a small, structured environment with a great deal of support. His proposed resource room teacher explained at the hearing how she would have used the IEP to individualize instruction for petitioners’ son, and she opined that the student would have benefited from the program (Transcript pp. 300-02). The CSE chairperson testified that the student could benefit academically, socially and vocationally from the program, and could develop additional skills and work toward the process of acquiring a diploma (Transcript p. 126).

        I have examined the remainder of petitioners’ claims and find them to be without merit.

THE APPEAL IS DISMISSED.