02-025

          Petitioner, the Board of Education of the Roslyn Union Free School District, appeals from an impartial hearing officer’s decision holding that the educational program its Committee on Special Education (CSE) had recommended for respondents' son during the 2001-02 school year was inappropriate, and awarding respondents tuition reimbursement at the Churchill School and Center (Churchill) in New York City. The appeal must be sustained.

        At the time of the hearing, respondents’ son was 13 years old and enrolled in the eighth grade at Churchill, a private school which has been approved by the New York State Education Department as a school with which school districts may contract to instruct children with disabilities. The student has been classified as learning disabled since 1995, when he was in the second grade (Exhibit SD-7). He has deficits in auditory processing and memory that severely affect his written language and also interfere with his pragmatic language and reading comprehension. His classification is not in dispute.

        During the second, third, fourth, and fifth grades, respondents’ son was in regular education classes and received resource room services at petitioner's Harbor Hill School (Exhibits SD-7, 8, 12, 14). While in the sixth grade at petitioner's Roslyn Middle School during the 1999-2000 school year, the student was in regular education classes for all subjects except social studies and science, for which he was enrolled in a co-teaching class, i.e. a regular education class with one regular education teacher and one special education teacher. He continued to receive resource room services during that school year. Classroom modifications included receiving copies of class notes and study guides, and no penalty for spelling errors (Exhibit SD-16). The student’s mother testified that she tutored her son on a daily basis, and that at some point during the sixth grade she hired a private tutor (Transcript pp. 556-62).

        On April 4, 2000, the CSE convened to review the student's individualized education program (IEP) for the 1999-2000 school year. Although the student’s mother sought a full time special education program for him, the CSE recommended that, for the rest of the 1999-2000 school year, he continue with his current educational program, and also receive two periods per week of instruction in the Lindamood-Bell Learning Processes program (Lindamood-Bell) with a speech/language therapist to address his reading deficits (Exhibit SD-31). The CSE also recommended that respondents’ son be encouraged to use a laptop computer, be monitored for attention difficulties, and receive remedial reading to improve comprehension. The student achieved an overall average of B for the sixth grade during the 1999-2000 school year (Exhibit SD-42).

        On May 2, 2000, the CSE recommended that the student attend a regular education seventh grade program at Roslyn Middle School with a co-teaching class for science and social studies, a co-teaching workshop (skills class) five times per week, a multisensory reading program and the Lindamood-Bell program during the 2000-01 school year (Exhibits SD-35, 36). Respondents did not accept the proposed program because it was not a full time special education program. Instead, they enrolled their son in the Churchill school for the 2000-01 school year, and requested an impartial hearing to obtain tuition reimbursement for that school year (Exhibits SD-44, 46). On June 11, 2001, an impartial hearing officer awarded respondents tuition reimbursement for that school year, after determining that the student's 2000-01 IEP lacked goals and objectives to address his deficits in reading, writing, and spelling, and that Churchill was an appropriate placement for the student (Exhibit SD-61).

        On August 29, 2001, petitioner's CSE met to develop the student's IEP for the 2001-02 school year. It reviewed a psychological evaluation conducted in September 2000 by one of its school psychologists, who reported that administration of the Wechsler Intelligence Scale for Children-III (WISC-III) had yielded a verbal IQ score of 101 (53rd percentile), a performance IQ score of 113 (81st percentile) and a full scale IQ score of 107 (68th percentile). On the Woodcock-Johnson Tests of Achievement-Revised, the student had achieved standard (and percentile) scores of 94 (33) for letter-word identification, 94 (35) for passage comprehension, 93 (32) for word attack, 99 (48) for math calculation, 107 (68) for applied math problems, 75 (5) for dictation and 102 (55) in reading comprehension. On the Test of Written Language-3 (TOWL-3), the student had achieved a standard score of 7 (16) in contextual conventions and contextual language. He had achieved a standard score of 8 (25) in story construction on the Wechsler Individual Achievement Test (WIAT). The psychologist noted that the student's performance on tests of reading and math achievement fell within the average range, but that testing evidenced deficiencies in his written expression including spelling, punctuation, capitalization, grammar, sentence structure, and vocabulary usage (i.e. contextual conventions) (Exhibit SD-49).

        The CSE recommended that respondents’ son attend petitioner's middle school. He was to be placed in co-teaching classes for English, science, and social studies, as well as an every other day English language arts workshop designed to focus on honing reading and writing skills addressed on the New York State examination for English Language Arts. The student was to be enrolled in the district's regular education Math 8A class following the New York State curriculum but proceeding at a slower pace. The CSE also recommended a co-teaching workshop in a 15:1+1 special education class for instruction in strategies for addressing reading comprehension and writing assignments. It also recommended that he receive 40 minutes of individual speech/language therapy twice per week (Exhibit SD-58).

        On August 30, 2001, the student's mother rejected the proposed IEP and requested an impartial hearing (Exhibit SD-57). Respondents unilaterally re-enrolled their son in Churchill for the 2001-02 school year and sought tuition reimbursement. The impartial hearing began on October 3, 2001, and concluded on November 28, 2001. In a decision dated February 4, 2002, the impartial hearing officer held that the proposed IEP for the 2001-02 school year was inappropriate because it failed to provide measurable baseline information about the student's present levels of performance that would enable the CSE to establish measurable IEP goals and objectives. The hearing officer found that the CSE lacked sufficient information about the student because it did not have recent standardized test results. He also found that the student's proposed IEP goals and objectives lacked specificity and were not related to the student’s stated present performance levels, and that the objectives were not sequential or written in measurable terms. Having determined that the Board of Education had failed to establish that it had offered to provide an appropriate program to respondents' son, the hearing officer also found that Churchill was an appropriate placement for the student, and he awarded respondents tuition reimbursement for the 2001-02 school year.

        A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]). 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 of showing that it had offered to provide a free appropriate public education (FAPE) to an individual child, a board of education must show that it complied with the procedural requirements set forth in the Individuals with Disability Education Act (IDEA), and that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [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]).

        Petitioner argues that the hearing officer erroneously concluded that the CSE did not have standardized achievement or diagnostic evaluations from which to ascertain the student's present levels of performance. It asserts that the student's proposed IEP for 2001-02 lists standardized achievement test results, including the September 2000 WISC-III, Woodcock-Johnson Achievement Tests-Revised, and the TOWL-3 scores. Furthermore, it argues that the proposed IEP goals and objectives were directly related to the student’s needs, and that the IEP objectives listed the level of accuracy the student was expected to achieve as well as objective and subjective criteria for measuring his success.

        Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]). 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 to determine a student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section I, Question 1). In addition to the September 2000 standardized test results, petitioner's CSE reviewed the student's June 2001 report card from Churchill (Exhibit SD-53, P-1). An examination of the August 29, 2001 IEP reveals that it does reflect the information provided by the student's report card. The record shows that an end of year speech/language report was read and discussed at the CSE meeting (Transcript p. 254). The student's homeroom teacher at Churchill participated by telephone in the CSE meeting. She reviewed the student's June 2001 report card and described his functioning in academic areas, including his instructional levels (Transcript pp. 107-08, 251). The record does not support the hearing officer's determination that the CSE lacked sufficient information about the student's current levels of performance.

        The next issue to be considered is whether the student's IEP adequately describes his present levels of educational performance. The IEP describes areas of strength, such as performing mathematical computation skills, understanding simple directions, and an ability to generalize and retain information through a multisensory approach. The IEP indicates that the student needs to improve written comprehension and expressive writing skills, reading comprehension skills, and organizational skills. It also indicates that he needs to develop problem solving skills, and needs to have concepts re-taught. It further indicates that he needs to have class notes provided to him. The areas of need that the IEP describes are directly relevant to the student's ability to progress in the general curriculum and are useful in providing instruction to him. The IEP does not, however, include information about the student's present levels of academic achievement as reported by his teacher at Churchill. Although such information should have been included on the IEP (34 C.F.R. § 300.347[a][1]; 8 NYCRR 200.4[d][2][i]), it is clear in this instance that the necessary information was discussed at the August 29, 2001 CSE meeting in which the parent fully participated. The parent and educators were aware of the student's current levels of academic achievement, and the program developed reflects, and is based upon, his present levels of performance (Transcript pp. 579, 588-91; see O’Toole v. Olathe Dist. Sch. Unified Sch. Dist. No. 233, 144 F.3d 692, 703 [10th Cir. 1998]).

        The student's needs are reflected in the student's annual goals, which are categorized by subject areas, including English, language arts, mathematics, reading, and organizational/study skills. Goals are stated in terms of general skills, for which there are behaviorally stated short-term objectives that delineate specific subskills. When combined, these subskills will result in achieving the broader skills stated in the annual goals. In the official interpretation of its regulations, the U.S. Department of Education has indicated that an IEP team must develop measurable annual goals for a student, and may then develop either measurable intermediate steps (short-term objectives) or major milestones (benchmarks) that will enable educators and the student's parents to monitor the student's progress during the year. Short-term objectives generally break the skills described in the student's annual goals into discrete components, while benchmarks establish expected performance levels at regular intervals (34 C.F.R. Part 300, Appendix A, Section I, Question 1).

        The record reveals that the student's greatest area of academic deficit is in written expression. The IEP includes an annual goal to improve the mechanics of written expression. The goal is supported by short-term objectives such as developing proofreading skills to correct errors in spelling, punctuation and grammar, improving ability to express thoughts in writing, making an effective, organized plan to address the writing requirements of a task, beginning to develop research skills, and identifying steps and using a plan to organize information for a research paper. The IEP also sets forth the evaluation procedures to be used to measure progress, including teacher observation, standardized tests, and classroom tests, as appropriate to each objective.

        At the hearing, the student's homeroom teacher at Churchill who participated by telephone in the CSE meeting, testified that "…when we looked at the goals we thought the goals were very good and we thought these are…things [that he] needs to work on." (Transcript pp. 106-11, 541). Although the IEP goals could have been stated with more precision, I find that the goals were substantively appropriate, and that the short-term objectives provided the requisite specificity to enable the student's teachers to understand the CSE's expectations (Application of a Child with a Disability, Appeal No. 95-15).

        The hearing officer also found that the student's IEP was deficient because it did not specify that the student should have the use of a laptop computer to enable him to complete written assignments in the classroom, because he was allegedly unable to write legibly. In addition, he noted that the IEP indicated that the student should have the use of a spell check device, but did not specify what the device should be. The IEP did indicate that the student would not be penalized for his spelling on tests.

        At the hearing, petitioner's psychologist acknowledged that the IEP should have explicitly indicated that the student would use a personal computer for certain tasks (Transcript p. 202). The psychologist testified that the use of a computer could be inferred from some of the testing modifications that appear on the IEP. She explained that the CSE had not recommended a laptop for the student because there was at least one personal computer available in each of the middle school classrooms, and that there were additional computers in three computer labs and in the library, and he did not need to use a computer on a continuous basis (Transcript pp. 158-61). A school psychologist from Roslyn Middle School testified that computers were an integral part of writing lessons for all students in the middle school, and that the fact that the student's IEP did not specify use of a computer would not limit the student in any way to access to a computer (Transcript p. 668). The student's sixth grade English teacher at Roslyn Middle School described spell check procedures used in the middle school classrooms, and noted that spell checking was sometimes done by the classroom teacher instead of with a computer (Transcript p. 341). The student's homeroom teacher at Churchill testified that the student used an Alpha Smart device to take notes in class and organize his thoughts, but he needed other tools to perform those functions, rather than relying solely on that device (Transcript p. 538). In addition, the student’s IEP indicates that class notes would be provided to him (Exhibit SD-58). The record does not support the hearing officer's conclusion that a laptop computer is needed. It does appear, however, that an assistive technology evaluation for this student would be appropriate to determine what, if any, assistive technology is needed (34 C.F.R. § 300.346[a][2][v]).

        I find that the educational program recommended by the CSE would have addressed this student's special education needs in the least restrictive environment. The access to regular education and special education staff in the co-teaching classes offered respondents’ son support and opportunity for repetition, clarification, and review of academic areas, while the recommended speech therapy provided opportunity for support in language pragmatics as well as in specific higher level language skills. The student made progress at grade level in a regular education curriculum while enrolled in petitioner’s school, with the use of supplementary aids and services and program modifications (Exhibit SD-42; Transcript p. 323). The 2001-02 IEP was developed with the opportunity for active and full participation by the parent, who was accompanied to the CSE meeting by her attorney (Transcript p. 269). The IEP was reasonably calculated to provide educational benefits, and would have afforded the student an educational opportunity. The procedural inadequacies here were not of a number or nature that constituted a denial of FAPE. (Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]; see also, J.D. ex rel. J..D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]).

        Since I find that petitioner has met its burden of proof with respect to the student's 2001-02 IEP, it is not necessary for me to address the appropriateness of the services respondents obtained for their son at Churchill during the 2001-02 school year. I will direct petitioner to have an assistive technology evaluation performed to ensure that the parties have adequate information about the student's assistive technology needs.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer's decision is hereby annulled; and

IT IS FURTHER ORDERED that with the parents' consent, and if it has not already done so, the Board of Education shall have an assistive technology evaluation performed within 30 calendar days after the date of this decision, and petitioner's CSE shall convene to review the results of said evaluation within 30 calendar days thereafter, provided that the parties may jointly agree to a different time frame.