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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., attorneys 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 that denied their request to be reimbursed for the cost of their son's tuition at the Kildonan School (Kildonan) for the 2001-02 school year. The appeal must be dismissed.

        When the hearing began on November 7, 2001, the student was nine years old and in the equivalent of the fourth grade at Kildonan (Transcript p. 582). Kildonan is a nonpublic school that has not been approved by the Commissioner of Education to contract with school districts for the education of students with disabilities. Diagnostic testing indicates that the student is of average to above average intelligence, but has processing deficits and significant weaknesses in reading, spelling and writing (Exhibits 62, A). His teachers describe him as polite, well mannered and enthusiastic about school (Transcript p. 643). His classification as learning disabled (LD) is not in dispute.

        In the fall of 1994, respondent's Committee on Preschool Special Education (CPSE) classified petitioners' son as a preschool child with a disability, and he was placed in a special class with speech language services to address expressive and receptive language delays (Exhibits 9, 11; Transcript pp. 362-66). He attended a preschool program for children with communication disorders during the 1995-96 and 1996-97 school years (Exhibits 13, 16, 20). In May 1996, a pediatric neurological assessment identified him as being at risk for reading difficulties and attention deficits (Exhibit 18). A May 1996 educational assessment suggested that he had moderate delays in fine motor and gross motor skills and social-emotional delays (Exhibit 19). Occupational therapy (OT) goals were added to his program in the spring of 1997 after an OT evaluation revealed sensory processing deficits and low muscle tone (Exhibits 22, 23).

        In the fall of 1997, respondent's Committee on Special Education (CSE) met and classified the child as speech impaired (SI). For his kindergarten year, it recommended a half-day regular education kindergarten with resource room services for two and a half hours per week. He was also to receive weekly speech therapy for 30 minutes individually and 30 minutes in a group, and weekly OT for 30 minutes individually and 30 minutes in a group (Exhibit 27; Transcript p. 123). Later in the year, the CSE added physical therapy (PT) services to his individualized education program (IEP), with additional goals and objectives (Exhibits 30, 31). The CSE increased the child's resource room services for his first grade year to five hours a week (Exhibits 35, 40). In addition, it added reading and writing goals, and his group OT services were changed to individual sessions (Transcript p. 128; Exhibits 38, 40).

        At the end of first grade, a triennial evaluation was conducted. The student scored in the 50th percentile on the Metropolitan Readiness Test (MRT-6) in reading and literacy development, but scored only at the 1.0 grade equivalent (GE) (12th percentile) on the Weschler Individual Achievement Test (WIAT) in reading. His teacher noted that he required continued support in math and language arts (Exhibit 43). His occupational therapist noted that he was distractible in class and had difficulty attending (Exhibit 41). For the student's second grade program, the CSE recommended that he continue to receive five hours of resource room services a week. In addition, the CSE added a 15:1+1 special class for two and a half hours a week to address his reading deficits in an environment with a lower student to teacher ratio (Exhibit 44; Transcript p. 129). He continued to receive speech-language services and OT, but no longer required PT (Exhibit 45). That summer, the student met with a special education itinerant teacher (SEIT) reading specialist three hours a week for one-on-one instruction (Exhibit 48; Transcript p. 647).

        For the 2000-01 school year, when the student was in third grade, the CSE changed his classification from SI to LD, and increased his time in the self-contained class to three hours a day to address language arts, reading, math and study skills (Transcript pp. 131, 644). His IEP also provided for an OT consultation and a speech-language consultation. He was mainstreamed in science, social studies and specials. On March 12, 2001, he scored in the 5th percentile in basic reading, 9th percentile in spelling, 5th percentile in written expression, and 4th percentile in reading comprehension on the WIAT. His reading composite score was in the 2nd percentile (1.5 GE) (Exhibit 51). According to the child's mother, he began to show frustration with homework and often came home from school upset, claiming he was being teased by students in the regular education classroom (Transcript pp. 652-53).

        When the CSE met on April 26, 2001 to develop an IEP for the student's fourth grade year, his parents expressed concern about his reading deficit, and the CSE discussed recent academic testing and classroom progress (Exhibit 55; Transcript p. 787). The CSE recommended SEIT services for the summer; however, his parents rejected the services, testifying at the hearing that summer tutoring never helped him in the past (Exhibits 55, 56; Transcript pp. 133, 629, 642, 667). The CSE approved the parents' request that it obtain an independent neuropsychological evaluation before making a final recommendation (Transcript pp. 661-62). The CSE also discussed goals and objectives and the need for OT (Transcript p. 797). Although the minutes of the meeting suggested that the CSE would have to reconvene to finalize a program, an IEP was generated and reviewed by the board of education (Exhibits 55, 57).

        The district conducted its own educational evaluation on June 18, 2001. On the Woodcock Reading Mastery Test (WRMT), the child's scores were in the 11th percentile (1.9 GE) in basic skills, in the 17th percentile (2.3 GE) in reading comprehension, and in the 14th percentile (2.1 GE) in total reading. The child scored in the below average range on every subtest except letter identification (Exhibit 64). The student's mother testified at the hearing that she was not aware of the district's evaluation and did not consent to it (Transcript p. 672). However, the record indicates that at the April 26, 2001 meeting the parties discussed the possibility of his teacher performing the WRMT (Transcript pp. 183, 789).

        On the independent neuropsychological evaluation, the result of which the parents received in July 2001, the child obtained a verbal IQ score of 108, a performance IQ score of 103, and a full scale IQ score of 106 on the Weschler Intelligence Scale for Children (WISC-III), placing him within the average range of intelligence. His scores on four different diagnostic reading tests showed global deficits in most areas. On the Wisconsin Card Sorting Test (WCST), a test of executive functioning, he scored below average, and the evaluator noted the student's inability to learn or alter his problem solving strategies based on feedback. He also noted that test results suggested the student had a mixed dyslexia, meaning that he had difficulties with processing visual information as well as with phonetics. He recommended a program of phonological awareness, including a multisensory Orton-Gillingham (O-G) based program that would integrate language arts and reading, a program such as Great Leaps to develop fluency, and use of the neurological impress method (Exhibit 62). He also suggested repetition of material and teaching in smaller segments.

        The psychologist found that the student had no attention deficit disorder. The Behavioral Assessment System for Children - Self Report of Personality (BASC-SRP) showed that he was at risk for maladjustment to school and problems with peers. He had poor memory for faces, which the evaluator noted was connected with social awareness. The evaluator recommended assertiveness training to help the child interact with peers, and the possibility of counseling.

        The record indicates that by letter dated May 30, 2001, petitioners' son was accepted for admission into Kildonan, and that by letter dated June 7, 2001, receipt of a $1000 deposit was acknowledged by that school (Exhibits 72, 73). By letter dated June 25, 2001, however, the parents informed Kildonan that they were waiting for the CSE meeting to determine whether they would enroll him there or not (Exhibit 74).

        When the CSE met again on August 2, 2001, it reviewed the neuropsychological report, the WIAT test results from March 2001, the WRMT scores from June 2001, and the student's classroom progress reports (Exhibit 65; Transcript pp. 161, 189-90). The IEP developed at that meeting noted that he required a multisensory reading program in a class with a smaller teacher-pupil ratio. The CSE recommended a 12:1+1 special class for one hour a day for reading and writing, and an additional three periods a week of remedial reading (Exhibit 1; Transcript pp. 136, 164-65, 797). The CSE also recommended the related services of OT and speech-language therapy. During the remainder of his school day, the student would be in regular education classes. His IEP contained goals for reading, writing, fine motor skills, and self-concept. His parents rejected the CSE's suggestion that he be provided counseling to address his relationships with peers (Transcript pp. 176, 845).

        On August 8, 2001, the parents requested a class profile, which was eventually provided at the hearing, and a copy of the IEP (Exhibit 69). By letter dated August 19, 2001, the parents advised the CSE that they were placing their son at Kildonan and requested an impartial hearing. In their request, they claimed that he required an O-G program, with individual instruction or small group instruction in which the other students have the same disability, so that he would not be teased. They also objected to the fact that they did not receive a copy of the IEP when they requested it (Exhibit 4). They received the IEP on September 1, 2001 (Transcript p. 677).

        Petitioners had another neuropsychologist evaluate their son in November 2001, after he had been attending Kildonan for a few months. She noted that he was easily distractible and had trouble making eye contact. His responses to her questions were impulsive, and a mood inventory indicated he had anxiety, problems with organization and difficulty maintaining focus. He received very poor scores on all reading subtests, including scoring in the 2nd percentile in decoding. The student's writing sample was scored at a 1.2 GE (Exhibit A). According to the evaluator, he expressed frustration with reading and spelling, stating that he hated the subjects, could not do them and was sick of trying. She recommended a specialized educational program, focused on reading and writing and using a multisensory format, in a very small group setting with children with similar intellectual capacity and learning styles. She further opined that he needed a behavior modification approach to increase his attention and motivation. She recommended the program provide immediate, frequent and positive feedback, with much repetition and curriculum materials in all subjects at the student's reading level.

        The hearing took place from November 7, 2001 through April 15, 2002. In her June 5, 2002 decision, the hearing officer denied the parents' request for tuition reimbursement, finding that respondent had offered to provide an appropriate program to the student. She found that his needs were adequately described, based on recent evaluations, and that the IEP contained annual goals and objectives related to his needs. She found the small special class setting for language arts and the remedial reading services to be adequate to address the student's weaknesses in reading.

        Petitioners claim that the 2001-02 IEP was not reasonably calculated to provide their son with educational benefit. They maintain that the IEP was similar to previous IEPs under which their son had made no progress in reading, that the IEP provided inadequate time in special education classes, that his teachers were not well-trained in the O-G method, that the class profile indicated he would have been grouped with other students whose needs were dissimilar, and that there were no goals and objectives for remedial reading. Petitioners also claim that respondent violated the procedural requirements of the Individuals with Disabilities Education Act (IDEA) by failing to discuss goals and objectives at the CSE meeting, by failing to develop a program for the 2001-02 school year at its August 2, 2001 meeting, and by providing them with a copy of the IEP in an untimely manner. They further maintain that respondent failed to provide notice of or obtain consent for the educational evaluation done in June 2001, and that they did not receive a class profile in a timely manner.

        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 (Sch. Comm. of Burlington 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. v. Bd. of Educ., 231 F. 3d 96, 102 [2d Cir. 2000], cert. denied, 632 U.S. 942 [2001]; Walczak v. Bd. of Educ., 142 F. 3d 119, 122 [2d Cir. 1988]; Application of a Child with a Disability, Appeal No. 02-029).

        To meet its burden of showing that it offered to provide a free appropriate public education (FAPE) to a student, the board of education must show (a) that it complied with the procedural requirements set forth in IDEA, and (b) that the IEP that its CSE developed for the student through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

        An appropriate educational program begins with an IEP that 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 Bd. of Educ., Appeal No. 02-024; Application of a Child with a Disability, Appeal No. 01-019). An IEP must contain, at a minimum, a statement of the student's present levels of performance, measurable annual goals and objectives related to the student's needs, and a statement of the special education and related services to be provided (34 C.F.R. § 300.347[a][1], [2], [3]).

        Applying these criteria, the hearing officer correctly determined that respondent met its burden of proving that the program it offered for the 2001-02 school year was appropriate and calculated to enable this student to receive educational benefit. The 2001-02 IEP reflected the results of testing and identified the student's needs. It stated that the student required multisensory instruction for reading and writing, in an environment with a low student-to-teacher ratio in order to address his deficits. Specifically, it noted that his needs included learning additional word attack strategies, writing complete sentences, applying spelling rules, developing assertiveness/confidence, and improving fine motor planning (Exhibit 1).

        In addition, the IEP included goals related to decoding; developing comprehension, fine motor, visual-motor, visual perceptual, handwriting and written language skills; and developing self-concept and socially acceptable behavior. The goals appear to be reasonably related to the child's needs. The special education teacher who wrote the goals testified that she knew how the child functioned academically and socially, as he had been enrolled in her class for the 2000-01 school year (Transcript pp. 203, 230-31). Her explanation of the recommended goals for the 2001-02 school year was logical and appropriate to the student's needs. She explained that she increased the mastery percentages for some of his goals, modified others, and carried over the same goals in areas that were difficult for him (Transcript pp. 226, 230-31).

        The program proposed by the CSE was appropriate to meet the student's needs. Petitioners' assertion that one hour per day of special education class and additional remedial reading assistance was inadequate is not borne out by the record. First, the special education teacher who would have taught him language arts testified that she had been trained in the O-G method during her previous employment at Kildonan, and that she was knowledgeable in O-G theory and in implementing its principles as part of a child's academic program (Transcript pp. 201-02, 208-12, 304, 307). More important, she testified that for the one hour per day he would have been in her special class, the group she worked with would have consisted of only two or three students (Transcript pp. 277-280, 301, 303).

        The remedial reading teacher who would have taught the student testified that she was experienced and familiar with the multisensory approach recommended by both of the neuropsychologists who evaluated the student in 2001 (Exhibits A, 62; Transcript pp. 433, 459, 529). She testified that she had experience as both a reading teacher and primary teacher, and that she was familiar with the type of goals and objectives that were on the child's IEP (Transcript p. 459). She explained that she would have consulted with the special education teacher to help petitioners' son meet his goals, thus providing an individualized, coordinated program for the student (Transcript pp. 434-36, 469-70, 475, 487-89, 491).

        Petitioners' son's occupational therapist and speech-language therapist also collaborated with the special education teacher in the classroom setting (Transcript pp. 211-12). The speech-language therapist testified that they worked together to develop a language and literacy program for the student for his special education class and in his regular education classes (Transcript pp. 367-70, 378, 399, 497), and that she met with the remedial reading teacher as well (Transcript p. 456). The child's occupational therapist testified that she worked as a team with the special education teacher during the OT consultation, in addition to her individual work with the student, and would have continued to do so (Transcript pp. 334, 349-53).

        The student would also have received a modified spelling program and test modifications, such as extended time (1.5), flexible setting, and questions read when cued by the student (Exhibit 1). His regular education teacher testified that the student had been thriving in his regular education classes and that he was a great listener, retained vocabulary, was able to participate, and had made great gains, especially in social studies (Transcript pp. 408, 410). I must therefore conclude that the CSE's recommendation that he be placed in regular education classes for the remainder of his subjects was appropriate. I conclude also that the student's placement recommended by the CSE addressed his special education needs in the LRE.

        Petitioners assert that because their son failed to master his goals and objectives from the prior year, a similar program would not be appropriate (Transcript pp. 153-63). Contrary to petitioners' contention that the child did not make progress in his third grade placement, his progress report indicates that by the end of the year he had made at least some progress on the majority of his goals and objectives, including some of his reading goals (Exhibit 63). The student's third grade special education teacher and his occupational therapist testified that, based on observation and portfolio materials, he had made academic progress in third grade (Transcript pp. 217-18, 341-46). Thus, I cannot conclude the student made no progress.

        Petitioners claim that in the recommended program their son would have been inappropriately grouped with students with dissimilar needs. State regulations require that in special classes students must be suitably grouped for instructional purposes with other students having similar individual needs (8 NYCRR 200.6[a][3], 200.1[ww][3][i], 200.6[g][2]; Application of a Child with a Disability, Appeal No. 01-084). The similarity of abilities and needs may be demonstrated through the use of a proposed class profile or by the testimony of a witness who is familiar with the children in the proposed class (Application of a Child with a Disability, Appeal No 02-028; Application of a Child with a Disability, Appeal No. 94-7). Although the class profile admitted into evidence listed some students with management needs and others with IQ scores that were lower than this student's (Exhibit H), his special education teacher testified that the student would have been removed from the larger class to a separate location with only two other students for his language arts class, and that those two other students would have had similar needs (Transcript pp. 233-35).

        Petitioners contend that they were unaware that the CSE was going to administer the WRMT in June 2001, and that respondent violated their procedural rights under the IDEA when it failed to notify them of the evaluation and failed to obtain their consent. The regulations require that when a school district proposes to evaluate a child, it must give written notice to the child's parents. The notice must describe the proposed evaluation and why it is being proposed, and must advise the parents of the means by which a description of the procedural safeguards may be obtained (8 NYCRR 200.5[a]). The regulations require that the parents' consent be obtained except for a standardized test administered to all students (8 NYCRR 200.5[b][1][i]). The special education teacher testified that she decided to administer the WRMT because of discussion at the April 19, 2001 CSE meeting in which it became clear that the parents wanted more documentation of his reading progress and a further evaluation of his reading deficits (Transcript pp. 309-11). I find that respondent's failure to comply with the written notice and consent requirements is a procedural error, but, under the circumstances presented, does not constitute a sufficient basis for setting aside the IEP, since it did not result in a loss of educational opportunity for the student or seriously infringe on the parents' participation in the formulation of the IEP (Application of a Child with a Disability, Appeal No. 02-015). Here the parents not only fully participated in the CSE meeting, but had requested additional testing (Transcript p. 171).

        Petitioners suggest that no placement resulted from the August 2, 2001 meeting and that the CSE failed to discuss goals and objectives at the meeting. However, I note that IEPs were generated from both the April 19, 2001 meeting (Exhibit 55) and the August 2, 2001 meeting (Exhibit 1). Moreover, the CSE chairperson testified that the CSE discussed the proposed services for language arts and the proposed remedial reading class at the August 2, 2001 meeting, and the parents did not appear to disagree with the recommendations (Transcript pp. 164, 169). While petitioners were hoping to receive a copy of the IEP earlier, in order to make a decision whether to send their son to Kildonan (Exhibit 69), respondent met its obligation to have the IEP in place at the beginning of the school year (20 U.S.C. § 1414[d][2]), as the parents received it on September 1, 2001. As for the goals and objectives, the CSE chairperson testified that the special education teacher reviewed draft goals and objectives for the coming year, though she was not sure whether the parents received a copy of them in advance (Transcript pp. 162-63). Additionally, I find that the procedural inadequacies alleged here were not of a number or nature that would constitute 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 alsoJ.D. ex rel. J..D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]).

        In sum, I find that respondent had offered to provide an appropriate program to petitioners' son during the 2001-02 school year. In response to the student's previous slow progress in reading, the CSE gradually increased his services, from resource room, to increased resource room, to part-time special classroom to more intensive special class services. Finally, for the 2001-02 school year, it proposed to add remedial reading, with his language arts program to be taught in a small group by teachers trained in multisensory sequential methods of teaching phonological awareness, and in conjunction with several other related service providers who would have collaborated closely with the teachers in enhancing his literacy skills.

        In light of my disposition of this matter, it is unnecessary to reach the other issues raised by petitioners.