02-041

          Petitioners appeal from the determination of a hearing officer that the individualized education programs (IEPs) developed by respondent's Committee on Special Education (CSE) for the 2000-01 and 2001-02 academic years were reasonably calculated to provide educational benefit to their son. The hearing officer also denied their request for reimbursement for Orton-Gillingham (O-G) tutoring services they unilaterally obtained for their son. The appeal must be sustained in part.

        Petitioners' son was 13 years old and about to enter the eighth grade in respondent's middle school when the hearing began on July 18, 2001. He had experienced difficulties with reading and spelling since early elementary school, and respondent's CSE classified him as learning disabled in the third grade (Exhibits 9, 17; Transcript pp. 554-60). His classification is not in dispute. In fourth grade, he was diagnosed with mild Tourette's syndrome characterized by intermittent vocal and motor tics and attentional deficits (Exhibits 109, C, D; Transcript pp. 567, 655). His cognitive ability is in the average range, and he has significant delays in processing and difficulty with memory and organizational skills. His teachers describe him as athletic, sociable and well liked, but they suggest that lack of motivation and fidgety behavior affect his academic performance (Exhibit 100).

        The student received reading assistance in first grade and Title 1 services in second and third grade (Exhibit 13). In addition, his parents hired private tutors to work with him during the summers (Transcript pp. 556-57, 562). In third, fourth and fifth grades, the student received consultant teacher services and speech therapy (Exhibits 17, 23, 30). In April 1998, at the end of his fifth grade year, an educational evaluator administered the Woodcock Reading Mastery Test (WRMT) to the student. He achieved standard (and grade equivalent) scores of 84 (2.5) in word attack, 64 (2.8) in word identification and 69 (2.6) in passage comprehension (Exhibit 66). The CSE recommended self-contained classes for language arts and mathematics for his sixth grade year, and a 12-month program to prevent regression in reading over the summer (Exhibits 38, 39, 53).

        In September 1999, the student's mother requested an independent educational evaluation at public expense, based on her concern about her son's low reading scores the previous spring. However, she agreed to wait for the results of the district's upcoming triennial evaluation of the student (Exhibits 48, 49, 50). She also informed the CSE that they had hired a private reading tutor trained in the O-G method to work with their son two days a week (Exhibits 50, 76; Transcript p. 603).

        The triennial evaluation included administration of the Wechsler Intelligence Scale for Children - III (WISC-III), which yielded a full scale IQ score of 92, which is within the average range of intellectual functioning (Exhibit 54). A speech/language evaluation indicated weaknesses in auditory processing, abstract language functioning, word retrieval and language formulation (Exhibit 57). The student's score on overall writing on the Test of Written Language (TOWL) was in the very poor range (standard score of 42, first percentile), and his overall score on the Test of Reading Comprehension (TORC) also fell within the poor range (Reading Comprehension Quotient of 65, first percentile). His IEP reading goals from the previous summer, however, indicated that he was able to interpret and comprehend fourth grade reading materials (Exhibit 53). The educational evaluator noted that the student was doing well in his classes, and suggested that the CSE review the reports and make recommendations as needed.

        When the CSE convened on October 19, 1999 to review the results of the triennial testing, it recommended an additional daily class of structured language arts (Exhibits 60, 61; Transcript p. 66). The parties agreed to discontinue speech services because the student did not like to be seen receiving the service and his speech therapist thought his needs could be addressed in the classroom (Transcript p. 593). Minutes of the CSE meeting indicate that the student's mother was satisfied with the evaluations (Exhibit 60).

        Seven months later, on May 23, 2000, respondent's CSE met to develop an IEP for the student's seventh grade year. His sixth grade teacher noted that his decoding skills had improved and that he could read fluently from a fifth grade reader (Transcript pp. 74, 81, 83). An IEP progress report dated June 2000 noted that he had met several of his sixth grade IEP goals (Exhibit 68). However, his report card reflected fairly low grades, and noted inconsistent effort and difficulty staying on task (Exhibit 70). The CSE recommended a special class for math and language arts, resource room once a day and numerous testing modifications. As a supplementary service, an aide was assigned to help him with writing activities in his science and social studies classes (Exhibits 65, 66).

        During the first quarter of seventh grade, the student received two grades of D, and his teachers reported poor effort and motivation (Exhibit 75; Transcript pp. 402-04). In a letter to the CSE, his mother expressed concern that her son was failing tests even after she studied with him for two or three hours a night. She requested that the CSE conduct memory testing and offer additional test modifications (Exhibit 71; Transcript pp. 597-98). The school psychologist who conducted the memory testing concluded that the student's global memory skills fell into the "impaired" category, with borderline verbal memory skills and impaired visual memory for complex tasks (Transcript pp. 343-45). He further opined that the student's fidgety, tic behavior might adversely affect his ability to store and retrieve information from memory (Exhibit 74).

        A subcommittee of the CSE met on December 6, 2000 to review the results of the memory testing and information on Tourette's syndrome the student's mother had sent prior to the meeting (Exhibits 73, G). The CSE agreed to additional test modifications and use of a word bank to trigger the student's memory (Transcript p. 621). In addition, his social studies teacher would send home an extra book for his mother to use with him (Transcript pp. 622, 624). The subcommittee recommended counseling one-half hour per week to address the student's lack of motivation and his reported dislike of being seen as a special education student (Exhibits 77, 79, 80, 81; Transcript pp. 348-49). His parents informed the CSE they were going to have their son evaluated independently by a neuropsychologist and indicated they would share the results with the district (Transcript pp. 627, 683-84).

        In a report dated December 2000, the neuropsychologist noted a family history of learning and reading difficulties, epilepsy and autism. She reported that the student was fidgety and distractible during the test situation. Based on her testing, she concluded the student had average cognitive ability with significant processing and attentional deficits. She estimated his reading skills to be at a third grade level and his writing skills to be at a first grade level. She recommended that he receive additional academic support, with intensive, individualized instruction in basic reading and writing starting with the basics and emphasizing "sight recognition and spelling rules rather than phonemic analysis" (Exhibit 76).

        On March 8, 2001, the student's mother requested in writing that the district provide her son with a certified O-G tutor for one hour a day during school hours and continued tutoring during the summer (Exhibit 84). She later submitted a note from her son's pediatric neurologist stating that the student could benefit from three tutoring sessions per week (Exhibit 86). The CSE convened on March 30, 2001 to review the independent evaluation and consider the parents' request for an O-G tutor. The team denied petitioners' request, but recommended an academic intervention class in language arts and an additional organizational period at the end of the day for the student (Exhibit 87; Transcript pp. 94-95, 630). The parents informed the CSE that they had enrolled their son at the Rhinebeck Learning Center for tutoring and requested an application for an impartial hearing (Transcript p. 228).

        In an effort to recommend a language arts program with which the student and his parents would be comfortable, the CSE met two more times and finally offered to provide an additional resource room period each day to address spelling and fluency skills in a structured language arts program (Exhibits 91, 95; Transcript pp. 95, 293-96, 418-19, 633). Petitioners were not satisfied with the proposed class, however, as they wanted their son to be taught by a "certified" O-G instructor with more than 45 hours of training (Transcript pp. 709-11). By letter received by the district on April 6, 2001, petitioners requested an impartial hearing seeking reimbursement for the cost of past and future tutoring and a proper program for their son (Exhibit 90).

        The CSE met on May 18, 2001 for the student's annual review and to develop an IEP for the student's eighth grade year. It recommended a 12:1+1 special class for language arts, two periods of resource room a day, a teacher aide for science and social studies and counseling once a week for 30 minutes (Exhibit 100; Transcript p. 130). The committee also recommended test modifications and access to a computer, spell checker and a calculator. His mother suggested that he required an assistive technology evaluation, but the committee deemed it unnecessary (Exhibit M). The student's third and fourth quarter report cards for seventh grade reflected grades in the C and D range (Exhibits 92, 108). His 2001 Terra Nova test scores, which became available in July, were at a third grade equivalence, in the below average range (Exhibits I, N).

        At the hearing, which took place from July 18, 2001 through October 28, 2001, the parties agreed that the hearing officer would consider only the language arts components of both the 2000-01 and the 2001-02 IEPs (Exhibits 66, 100; Transcript pp. 14, 17). In a February 14, 2002 decision, the hearing officer ruled that the district had established that its IEPs for the 2000-01 and 2001-02 school years were reasonably calculated to provide the student with educational benefit. He also determined that the parents failed to establish the appropriateness of the private tutoring services.

        In their claim for reimbursement for private tutoring services and transportation expenses, petitioners assert that the 2000-01 and 2001-02 IEPs are procedurally defective and inappropriate because they fail to identify or properly address the student's learning disabilities as they relate to language arts. Petitioners assert that the CSE did not have sufficient objective evaluative data when the IEPs were developed from which to ascertain the student's present levels of performance. They further claim that the IEPs did not contain objective measurable criteria for assessing progress and that the goals and objectives were not reasonably calculated to benefit the student.

        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]). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. ex rel. S.S. v. Bd. of Educ., 231 F. 3d 96, 102 [2d Cir. 2000]; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]).

        To meet its burden of showing that it offered to provide a free appropriate public education (FAPE) to a student, a board of education must show that it adequately complied with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA) and that the IEP developed through the IDEA's procedures is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). An IEP must 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]; 8 NYCRR 200.4[d][2][i]). In determining the extent to which the child can be involved in and progress in the general curriculum, 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 (34 C.F.R. Part 300, Appendix A, Section I, Question 1). An IEP must also contain a statement of measurable annual goals and objectives related to a student's areas of need (34 C.F.R. § 300.347[a][2]; 8 NYCRR 200.4[d][2][iii]).

        Although the record reveals that the CSE provided this student with an array of services, I find that both the 2000-01 IEP and 2001-02 IEP were deficient in that they lacked adequate objective data by which to measure the student's present levels of performance in reading and language arts (34 C.F.R. § 300.347[a][1]). The lack of objective data resulted in an inadequate basis upon which to measure his progress in those areas and to develop meaningful, measurable goals and objectives (34 C.F.R. § 300.347[a][2]).

        While the 2000-01 IEP noted the student's academic grades from the first three quarters of the school year and indicated in narrative form that he was reading below grade level, the only objective data related to the student's reading skills were Terra Nova test scores from April 1999 and the results of his triennial testing in the fall of 1999. On the Terra Nova, the student achieved a grade equivalent (and percentile) score of 2.8 (13) in reading and 3.2 (18) in language, but those scores were more than a year old at the time of the CSE meeting. Consequently, the CSE was basing its determination of the student's present levels of performance on information that failed to reflect his current functioning. I also note that the Terra Nova is a general purpose achievement test usually administered in group general education settings and not designed to be administered on an individual basis for diagnostic purposes.

        The October 1999 triennial testing was current at the beginning of the school year, but the CSE did not include in the student's 2000-01 IEP any post-testing at the end of that school year. Thus, when the committee met on May 23, 2000 to develop the student's seventh grade program, it did not have available to it any objective evaluative data to indicate whether or to what extent the student had made progress during the 1999-2000 school year. Without quantified information regarding progress made during the 1999-2000 school year, the CSE lacked an adequate basis upon which to develop appropriate goals and objectives for this student for the 2000-01 school year.

        The 2001-02 IEP's statement of present levels of performance is very similar to the prior year's statement, but it sets forth Terra Nova scores from April 2000. On the April 2000 administration of the test, he scored at a grade equivalent (and percentile) of 4.3 (30) in reading and 4.6 (32) in language (Exhibit 100). In April 2001, the month before the CSE met to recommend a program for the 2001-02 school year, the student's scores on the Terra Nova dropped to 3.4 (15) in reading and 3.2 (14) in language (Exhibits I, N), but those results were not available until after the IEP had been developed. The student's scores fluctuated from year to year on the Terra Nova. Given such fluctuation and the use each year of test results that were over a year old, it does not appear that the CSE had an adequate basis upon which to determine the student's present levels of performance (see, Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F.Supp. 83, 96 [S.D.N.Y. 1996]).

        Respondent argues that the goals and objectives were set by the student's special education teachers and that the student's progress would be measured by teacher observation. The writing objectives of the 2000-01 IEP state that the student will apply concepts and rules of sentence construction and grammar, spelling, paragraph structure, and parts of speech, with 80 percent accuracy, as evaluated by teacher observation at the end of each quarter (Exhibits 66, 100). Although subjective teacher observation provides valuable information, teacher observation, by itself, is not an adequate method of monitoring a student's progress in his areas of academic need, particularly when a baseline has not been established (Evans, supra at 96; see also New York State Education Department's Sample Individualized Education Program (IEP) and Guidance Document, December 2002 pp. 54-61). Moreover, the record reveals that the student's teacher was not certain of the student's levels of functioning or how well he progressed from year to year (Transcript pp. 451-52, 457, 463, 465, 468, 476). I therefore find that the 2000-01 IEP failed to set forth adequately measurable goals and objectives.

        Similarly, the 2001-02 IEP lacked accurate measurable goals and appropriate strategies for evaluating the student's progress (34 C.F.R. §§ 300.347[a][2] and [7]). It included goals that the student would increase his writing skills "to pass the eighth grade assessment" and that he would increase his reading comprehension skills to the 6.5 grade level (Exhibit 100). However, his teacher testified that he was not close to being able to pass the eighth grade writing assessment (Transcript pp. 501, 504-05), and the neuropsychologist had reported in December 2000 that he was reading at only a third grade level and that his writing skills were at a first grade level. Again, the IEP did not include any updated testing in reading and writing to determine the efficacy of the program it provided.

        I must now determine if these procedural violations resulted in a denial of FAPE (see, J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000]; Application of a Child with a Disability, 02-015; Application of the Bd. of Educ., Appeal No. 01-047), i.e., whether the violations resulted in a loss of educational opportunity (see, e.g., Evans, 930 F.Supp. at 93; Application of a Child with a Disability, Appeal No. 01-061; Application of a Child with a Disability, Appeal No. 01-046) or educational benefit (see, e.g., Arlington Cent. Sch. Dist. v. D.K., ___ F.Supp. 2d ___, 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002.]) for the student, or seriously infringed on the parent's participation in the creation or formulation of the IEP (see, e.g., Pascarella, 153 F.Supp.2d at 153; Briere v. Fair Haven Grade Sch. Dist. 948 F.Supp. 1242 [D.Vt. 1996]; Application of a Child with a Disability, Appeal No. 96-31). I conclude that they did. Accurate information concerning the student's present levels of academic performance and the development of measurable goals based on that information are necessary to enable his teachers and parents to measure the progress he is making in his special education program (34 C.F.R. Part 300, Appendix A, Section I, Question 1) and to evaluate and revise that program when necessary. Under the circumstances presented, I conclude that respondent failed to establish the appropriateness of the program it recommended for petitioners' son for the 2000-01 and 2001-02 school years.

        The student's parents bear the burden of proof with regard to the appropriateness of the tutoring services for which they seek reimbursement (Application of a Child with a Disability, Appeal No. 95-57; Application of the Bd. of Educ., Appeal No. 94-34). In order to meet their burden, the parents must show that the services provided met the student's special education needs (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29).

        There is nothing in the record to suggest that the student required 1:1 O-G instruction to address his needs. In her report, the neuropsychologist suggested a reading approach that emphasized "sight recognition and spelling rules rather than a phonemic analysis" (Exhibit 76). The O-G program emphasizes instruction in phonemic analysis (Transcript p. 259; see, Application of a Child with a Disability, Appeal No. 02-038). Moreover, although the bill submitted by the parents contained a fee for pre- and post-testing, there was no evidence of either in the record, and the parents offered no testimony or exhibits to describe the tutoring sessions. Thus, there is no basis in the record for determining whether the tutoring services were appropriate, and petitioners are not entitled to reimbursement for those services (Application of the Bd. of Educ., Appeal No. 97-65; Application of a Child with a Disability, Appeal No. 96-68).

        Petitioners allege that the hearing officer was biased, that he improperly imposed an indefinite extension of the hearing, and that he had insufficient knowledge of special education law. For those reasons, they seek his removal from the state list of certified impartial hearing officers. The State Review Officer does not have the authority to remove an impartial hearing officer from the state approved list; rather such authority rests with the Commissioner of Education (8 NYCRR 200.21[b]; Application of a Child with a Disability, Appeal No. 02-098).

        I have considered petitioners' remaining claims and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's decision be annulled to the extent he determined that the CSE had developed an appropriate IEP for petitioners' son for the 2000-01 and 2001-02 school years.