02-116

         Petitioners appeal from the decision of an impartial hearing officer denying their request for tuition reimbursement for the unilateral placement of their daughter at the Kildonan School (Kildonan) for the 2000-01 and 2001-02 school years. The appeal must be dismissed.

        At the commencement of the hearing in this matter on March 21, 2002, the student was 11 years old and in the fifth grade at Kildonan, a private school for children with language-based learning disabilities. Kildonan has not been approved by the Commissioner of Education as a private school with which public school districts may contract to educate children with disabilities. The educational history of the student is set forth in an earlier decision, Appeal of a Child with a Disability, Appeal No. 01-077, in which a State Review Officer (SRO) upheld a hearing officer's denial of tuition reimbursement for the student's attendance at Kildonan during the 1999-2000 school year on the grounds that the individualized education program (IEP) prepared by respondent's Committee on Special Education (CSE) was appropriate. The student's classification as learning disabled is not in dispute.

        The student has a verbal IQ of 85, a performance IQ of 98, and a full scale IQ of 92, placing her within the average range of intelligence (Exhibit 34). She was found to have an auditory processing disorder, partially due to having small ear canals and the buildup of wax in her ears when she was younger (Exhibit 37; Transcript pp. 507-08, 589). She was also found to have weaknesses in language retrieval and memory (Exhibits 33, 52; Transcript pp. 510-13, 565). However, a July 10, 2000 psychoeducational consultation by a reading expert indicated that the student was not reading significantly below grade level and was "not a seriously disabled reader" (Transcript p. 1230; Exhibit 34). Her scores on a June 11, 2002 administration of the Woodcock Reading Master Test (WRMT) further indicate that she does not have any significant reading disability (Parent Exhibit 3; Transcript pp. 195-96, 234, 242-46).

        When the CSE met on August 28, 2000 for a triennial review and to develop an IEP for the student's fourth grade year, it recommended that she be placed for 120 minutes a day in a 12:1+1 inclusion class called the Individual Learning Center (ILC), which was essentially the same program recommended by the CSE for the 1999-2000 school year, as upheld by the SRO in Appeal No. 01-077 (Exhibit 28). The parents were not at the August 28, 2000 meeting, apparently because the student's mother became ill at the last minute and did not want to adjourn the meeting (Exhibit 27; Transcript pp. 348-50, 951).

        As described in the earlier appeal, the ILC class consisted of up to 12 classified children and other non-disabled students taught by a regular education teacher, a special education teacher and an aide. The student would have been taught language arts, writing, and reading by her special education teacher, and would have received instruction in the general education classroom for the remainder of her classes (Exhibit 27; Transcript pp. 1145-46). Her special education teacher would provide direct consultant teacher services in the general education classroom for 30 minutes 4 times a week and would provide indirect consultant services by meeting with her other teachers and providers one hour per week (Exhibits 28, 29). The student would also work with a reading specialist 45 minutes per day, and with a speech therapist 30 minutes a week individually and for 30 minutes twice a week in a group, and would be provided counseling once a week for 30 minutes (Exhibit 28).

        The student's mother testified that she received the IEP around the time of the August 29, 2000 letter (Exhibit 27; Transcript pp. 951-52). On September 11, 2000, the parents sent a handwritten note to the district stating that they disagreed with the IEP, intended to place their daughter at Kildonan, and were exercising their right to due process and tuition reimbursement (Exhibit 2). The district sought to consolidate the claim involving the 2000-01 school year into the earlier hearing on the 1999-2000 IEP, but the parents objected because they wanted to wait until the earlier case had been decided (Exhibits 17, 19; Transcript pp. 13, 1127-29).

        In November 2000, an audiological evaluation conducted at Kean University in New Jersey indicated that the student had weak short-term memory and sequencing skills and difficulty decoding a conversation, with weaknesses predominantly in her left ear. She had particular difficulty following speech signals when there was auditory competition (Exhibit 37). The audiologist opined that this interfered with her ability to comprehend long phrases and sentences. He recommended she be instructed in a small, quiet environment with information presented in a multi-sensory program, and he mentioned Kildonan as an example of such a program (Exhibit 37).

        The CSE met on July 30, 2001 to develop an IEP for the 2001-02 school year, the student's fifth grade year. The CSE reviewed a June 4, 2001 educational evaluation (Exhibit 32) and a June 5, 2001 speech language evaluation that revealed continued delays in receptive and expressive language, processing skills, word-finding skills and auditory discrimination (Exhibit 33). The speech evaluation recommended therapy twice a week individually and three times a week in a group, and the use of an FM trainer. The CSE recommended again that the student be placed in the ILC class, but increased the direct consultant teacher services to 70 minutes five times a week, and individual speech therapy to three times a week. Once again, it proposed formal consultation between the teachers and providers one hour a week. The student was also afforded test modifications, such as extending the time allotted by 50 percent. The IEP suggested that the student have a bimonthly examination of both ears by the school nurse.

        The student's mother objected to the proposed class profile, because, as she explained at the hearing, she did not want her daughter in a self-contained classroom with students who were classified as mentally retarded (MR) or emotionally disturbed (ED) (Transcript pp. 937, 954, 967). Further, she did not believe that her daughter's deficits could be adequately addressed by meeting 45 minutes a day with the district's reading specialist (Transcript pp. 962-63). She did not disagree with the IEP's goals and objectives (Transcript pp. 967-68). By handwritten note dated August 20, 2001, the student's parents requested a hearing, stating that they believed the proposed class profile was inappropriate, and that their daughter needed to be instructed in the O-G method for a full day (Exhibit 1).

        On March 21, 2002, the first hearing day, the parties agreed to consolidate the 2000-01 hearing request with the 2001-02 request (Transcript pp. 11-14). After the SRO rendered his April 26, 2002 decision upholding the CSE's recommendation for the 1999-2000 school year, the hearing officer issued an interim ruling that the student's pendency placement was the public school. After six more days of hearing, the hearing officer rendered a final decision on November 15, 2002 denying the parents' request for tuition reimbursement for 2000-01 and 2001-02. The hearing officer noted that the parents contended the two IEPs at issue had not been changed in any significant manner from the 1999-200 program, and he found that there was no significant new evidence presented by the parents in the hearing. He therefore concluded that since the SRO had found the 1999-2000 IEP appropriate, the 2000-01 and 2001-02 IEPs were similarly appropriate.

        Petitioners claim that the 2000-01 and 2001-02 IEPs are inappropriate because respondent developed the program without information from the student's teachers at Kildonan, and lacked test scores to describe her current levels of functioning. They also claim that the 2000-01 IEP failed to include instruction in math, and that there were no goals related to the consultant teacher assisting the student in regular education classes. They claim that the 2001-02 IEP failed to include goals for counseling, that the reading and speech goals overlapped, and that neither IEP contained schedules for completion of objectives. They further assert that the 2000-01 IEP should be held invalid because it was not provided to the parents until September 6, 2000. They assert that their daughter's program was inadequate both years because respondent's reading specialist was not adequately trained in the O-G approach, and because the ILC program is confusing, and is not a small enough class size. They also object to the proposed class profile as an unsuitable instructional grouping for their daughter.

        A board of education may be required to pay for educational services obtained for a student by her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parent's claim (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]). The parent's failure to select a program 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 (Walczak v. Florida Union Free Sch. Dist., 142 F. 3d 119, 122 [2d Cir. 1998]; Application of a Child Suspected of Having a Disability, Appeal No. 02-092). 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: (a) that it complied with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §1414[d]); and, (b) that the IEP recommended by its CSE is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [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 IEP must accurately reflect the results of evaluations to identify the student's needs and must include a statement of the student's present levels of educational performance, and how her disability affects her progress in the general curriculum (34 C.F.R. § 300.346[a][1]& 300.347[a][1]; 8 NYCRR 200.4[d][2][i][a]; (Application of a Child with a Disability, Appeal No. 02-014). Minutes from the August 28, 2000 CSE meeting indicate that in developing the 2000-01 IEP, the CSE based its recommendation on a variety of sources (Exhibit 49). It reviewed a psychoeducational evaluation dated July 10, 2000 (Exhibit 34), an oral report by the school psychologist, an updated social history (Exhibit 31) and a written progress report from Kildonan dated January 2000 (Transcript pp. 331-32). In developing the 2001-02 IEP, the CSE reviewed a June 5, 2001 speech language evaluation and an educational evaluation (Exhibits 33, 32).

        Moreover, each IEP contains a detailed description of the child's present levels of performance (Exhibits 28, 23). The 2000-01 IEP states that the student "requires special education support in the academic areas which involve reading, spelling, writing and language arts…." (Exhibit 28). It further notes that she would need an auditory trainer for all areas of learning, preferential seating, and frequent review and repetition, with instruction provided in small units. It incorporates standardized test scores and subjective reports of her abilities contained in the record. The 2001-02 IEP list the student's scores on recent achievement testing, and breaks down those scores into the various reading and language skills. It describes her writing ability and spelling scores. It lists her abilities, including her strengths, then reports her management needs, social development and physical needs (Exhibit 23). The IEP notes that "accommodations are needed to address her unique learning style" and then lists the individual modifications she requires. Based on a careful review of the IEPs, I find the present levels of performance set forth in each adequately describe how the student's disability affects her involvement and progress in the general curriculum.

        Petitioners claim that the 2000-01 IEP was developed without information from the child's current educators and object to the fact that there was no representative from Kildonan in attendance to report on her progress there. However, I note that it was not necessary to have a teacher from Kildonan present, so long as the teacher serving as a member of the CSE would have been responsible for implementing the IEP and could participate in discussion about how best to teach the child (34 CFR Part 300 Appendix A, Question 26; Application of a Child with a Disability, Appeal No. 00-031; Application of the Bd. of Educ. of the Hyde Park Cent. Sch. Dist., Appeal No. 02-056).

        In this case, qualified members from respondent's staff were present at the CSE meeting on August 28, 2000. The student's proposed special education teacher, speech teacher and regular education teacher were present, each of whom would have been responsible for implementing the student's IEP. (Exhibit 40). Further, I note that respondent's notice for the August 28, 2000 meeting indicates that the headmaster of Kildonan would be attending the meeting, although it is unclear why he did not attend (Exhibit 40). In addition, the IEP notes that it contains information based on reports from Kildonan (Exhibit 28).

        Petitioners claim that none of the student's educators were present at the July 30, 2001 CSE meeting either and claim "there is no evidence anyone was ever invited to participate," implying that the CSE should have included a teacher from Kildonan. I note that the CSE chairperson not only invited the headmaster of Kildonan to attend the July 30, 2001 meeting, but asked the parents to encourage the headmaster's attendance and to forward any of the student's records from Kildonan (Exhibit 38). The CSE sent two letters to Kildonan requesting information about the student's performance. Again, the record is unclear as to why the headmaster did not attend the meetings, and why the information was not sent. However, present at the meeting were the student's proposed special education teacher, the speech therapist and the reading specialist, who was "qualified to provide regular education in the type of program in which the student may be placed" (8 NYCRR 200.1 [pp][1]; Exhibit 24). Given the presence of those teachers, each of whom would have been likely to implement the student's IEP, and respondent's attempts to obtain information from Kildonan, I cannot find a reason to invalidate the program based on CSE composition.

        Petitioners assert that the reading and speech goals are inadequate because they overlap and also claim that there are no dates for completion of the goals on the IEPs. They further maintain that there are no consultant teacher goals or counseling goals. An IEP must include measurable annual goals related to the student's special needs, must describe how the student's progress will be measured, and the manner in which parents will be informed of the progress (34 C.F.R. § 300.347[a][2]&[a][7]; 8 NYCRR 200-4[d][2][iii]&[x]). However, a finding that respondent has violated a procedural requirement of the IDEA in developing an IEP does not automatically mean the student was denied a FAPE, unless the procedural inadequacies resulted in a loss of educational opportunity or lack of parental involvement (J.D. v. Pawlett Sch. Dist., 224 F. 3d 60, 69-70 [2d Cir. 2000]).

        I find that both IEPs contained measurable goals and objectives related to the identified areas of need. The IEPs state that the student "requires special education support in the academic areas which involve reading, spelling, writing and language arts…" (Exhibits 23, 28). Each IEP contained goals for reading and for speech therapy, including goals related to improving the student's auditory processing deficit (Transcript pp. 532-34; 540-41). For example, the 2001-02 IEP lists as a goal that she will learn skills to decode words introduced through the fifth grade curriculum. The related short-term objectives include mastering syllabication rules for bi- and multi-syllable words, as measured by teacher made tests by months 1-3, and add additional measurable short-term objectives.

        Both IEPs are written so that the objectives are assigned to a certain part of the school year; e.g. months 1-3, months 3-5 and months 6-10. The IEP states that mastery will be evaluated by teacher observation and running records. I find such a system was adequate to meet the statutory requirements related to measurable goals. I find no authority to support petitioners' assertion that goals may not overlap. Even the parents' witness, their daughter's teacher from Kildonan, acknowledged that the IEPs' goals were appropriate (Transcript p. 834).

        Petitioners also assert that there are no goals on the IEPs related to the direct consultant teacher services, and they point out there were no counseling goals on the IEPs. Direct consultant teacher services are special education services (8 NYCRR 200.6 [d]; Application of a Child with a Disability, Appeal No. 98-24; Application of the Bd. of Educ. of the City Sch. Dist. of the City of Buffalo, Appeal No. 97-66), and this student was to receive direct consultant teacher services for 30 minutes four times a week in 2000-01 and for 70 minutes 5 times a week in 2001-02. The CSE chairperson explained that the student's special education teacher would act as the consultant teacher by assisting the student in her general education classes with content area goals (Transcript pp. 429-430). He further explained that the IEP does not reflect non-deficit content area goals, and that the consultant teacher "would be expected to cover the other areas of deficit, such as reading, spelling, writing, as they apply to content are materials in the regular classroom" (Transcript p. 430).

        I therefore conclude that several of the goals in the IEP would be addressed by the consultant teacher who, as the student's special education teacher, was familiar with her language needs and other deficits. For example, the seventh goal of each IEP states that "[the student] will develop and use compensatory strategies in the classroom to improve organizational and study skills." In light of the testimony, this would clearly be a goal that would be addressed by the consultant teacher. The consultant, working in conjunction with the regular education teacher, would be able to modify the content area material to address the student's needs, and assist the student with the use of her auditory trainer, a goal that was addressed as the fifth in a series of language goals on the 2001-02 IEP (Exhibit 23). Under the circumstances of this case, I must conclude that the absence of specific goals for consultant teacher services did not procedurally or substantively constitute a denial of FAPE.

        With respect to the one-half hour of counseling per week, the IEP suggests that the recommended counseling was only a means by which to help the student transition from her private school to the public school, not an essential part of the student's special education program (Exhibits 28, 23). The record contains no evidence that the student has any psychological problems, and the IEPs state that she is socially well adjusted and has no difficulty relating to peers or adults (Exhibits 28, 23). Thus, the absence of counseling goals does not provide sufficient reason to invalidate the IEPs.

        As petitioners point out, the proposed schedule sent to the parents by the CSE chairman on August 29, 2000 omitted mention of a math class (Exhibit 27). However, the director of student services implied that the omission was an oversight, and explained that the student would have definitely taken a math class, because it was a required subject (Transcript pp. 1153-54). The next year, the 2001-02 IEP and proposed schedule did include a fifth grade math class (Exhibit 26). Further, since math was not an area of deficit for the student (Exhibit 32), and since it was not part of her special education program (Transcript pp. 400, 1153), the math program did not need to appear on the child's IEP (OSEP opinion at 18 IDELR 1234; Application of a Child with a Disability, Appeal No. 98-47; 34 C.F.R. Part 300 Appendix A, Question 4).

        Petitioners also assert that the 2000-01 IEP was not provided to them in a timely manner. By definition, the IEP must be in effect at the beginning of each school year (20 U.S.C. §1414[d][2]; 34 CFR § 300.342). The student's mother testified at the hearing that she was not sure when she received the 2000-01 IEP for the first time, but thought it was attached to a letter dated August 29, 2000 (Transcript pp. 951-52). Later, petitioners claimed in their petition that they did not receive the 2000-01 IEP until September 6, 2000 and the 2001-02 IEP until September 1, 2001. According to a school calendar for 2000-01, the first day of school was September 6, 2000, and the first day of school in 2001-02 was after September 1, 2001 (Exhibit 50). I therefore find that respondent met its obligation to have the IEPs in place at the beginning of the school year (Application of a Child with a Disability, Appeal No. 00-007).

        I cannot agree with petitioners' claims that their daughter would not have been suitably grouped for instructional purposes with children having similar needs if she had been placed in the ILC classroom. The CSE chairman, who was also the school psychologist, was familiar with the students in the proposed class and testified that petitioners' daughter would have been suitably placed with the students included in the proposed class profile (Transcript pp. 377-78, 381-82). The director of special education testified that the classified students in the ILC class were largely the same youngsters from the 1999-2000 proposed class, which had run smoothly in 1999-2000, and was found by the SRO to be suitable that year (Transcript pp. 1147-50; Application of a Child with a Disability, Appeal No. 01-077). Upon reviewing the class profiles for the 2000-01 and 2001-02 school years, I find no reason to conclude the student would not have been suitably grouped (Exhibit 23B).

        I agree with the hearing officer that the program offered by respondent's CSE for the 2000-01 and 2001-02 school years would have met this student's special educational needs. The psychoeducational evaluation of July 10, 2000 (Exhibit 34) recommended that the student receive language therapy and a well rounded balanced reading program that included but was not limited to phonics instruction, both of which were linchpins of respondent's proposed program. Respondent's school psychologist testified that the proposed ILC program would have met the student's needs (Transcript p. 382). Indeed, the independent evaluator and the speech therapist each opined that the student could be successful in regular education program with the proper supports (Exhibit 34; Transcript p. 673).

        I credit the testimony of respondent's speech therapist that the student required speech therapy to address her principal weaknesses in auditory processing and word retrieval and that her skills would have improved more had she continued to receive therapy (Transcript pp. 573-75). Although the student's classes might have been somewhat larger than the classes at a private school, the therapist testified that the student would have had an auditory trainer and that all of the student's teachers would have coordinated their services in order to make sure that the student was meeting her speech-language and other goals (Transcript pp. 524; 698-99). I find that respondent has met is obligation of proving that the IEPs were likely to produce educational progress and not regression (Grim v. Rhinebeck, 346 F.3d 377 [2d Cir. 2003] 22092349 [2d Cir. 2003]; Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002]; Application of the Bd. of Educ. of the City Sch. Dist. of the City of Poughkeepsie, Appeal No. 03-058). The IEPs were 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]).

        Although the SRO rejected their argument in Appeal No. 01-077, petitioners insist that respondent's reading specialist does not have enough training in O-G to provide effective instruction. This is despite evidence that the reading specialist has received additional training in O-G, and that the founder of Kildonan, who has been training teachers at respondent's district for many years, would have been available as a consultant to the reading specialist (Transcript pp. 1160-62). It is significant that the reading specialist was trained to utilize many different strategies of teaching reading in addition to O-G (Transcript p. 387). I am satisfied with the documentation in the record regarding the qualifications of the reading specialist, and I find no reason to conclude that she required additional training.

        Finally, the record indicates that the educational programs recommended in the 2000-01 and 2001-02 IEPs were substantially similar to the 1999-2000 IEP (Transcript p. 1159). Petitioners do not dispute the fact that the educational program offered in the IEPs and their daughter's needs were essentially the same for all three years (Transcript pp. 94, 106, 119). The hearing officer based his opinion largely on the fact that the programs were similar and the lack of evidence that the student's needs had changed. For the reasons set forth in Appeal No. 01-077 and for the additional reasons set forth in this decision, I find that respondent has met its burden of proving that it had offered to provide a FAPE to the student for the 2000-01 and 2001-02 school years.

THE APPEAL IS DISMISSED.