03-041

          Petitioners appeal from an impartial hearing officer's decision denying their request to be reimbursed for the cost of their daughter's tuition at the Landmark School (Landmark) for the 2002-03 school year. The appeal must be dismissed.

        At the time of the hearing, petitioners' daughter was 17 years old, and was in the 11th grade at Landmark. Psychological evaluations indicate that the student's cognitive abilities are in the average range (Exhibit 11).¹ The student has been classified as learning disabled by respondent's Committee on Special Education (CSE). The student's learning disability affects her memory and reading comprehension as well as her ability to focus, organize and complete assignments. Specific areas of weakness include poor immediate verbal memory and processing, impulse control, distractibility, inconsistency, poor attention/arousal regulation, poor delayed recall of verbal information, poor organization, and difficulty processing large blocks of information (Exhibit 16). She was previously described as dyslexic and subsequent to participation in a private school program to address her reading deficits, has been described as a "remediated dyslexic" (Exhibit 11). In 2001, the student was identified as having an attention deficit disorder (ADD) for which she reportedly took medication at one time, but she was apparently not taking medication at the time of the hearing (Exhibit 16; Transcript pp. 333, 2173). The student also reportedly required medication for low blood pressure, but the precise condition and the medication were not identified in the record (Exhibit E p. 74).

        The student's annual review was held June 14, 2002. At that meeting, the student's individualized education program (IEP) for the 2002-03 school year was created (Exhibit 33A). The CSE recommended that the student be enrolled in a regular education classroom at Pawling High School with modifications and support in skill development. In addition, the CSE recommended that she receive 40 minutes of resource room instruction and 40 minutes of special class reading, each five times per week and each with a student to staff ratio of 5:1 (Exhibits 33A, JJ). The CSE also recommended study guides, class notes, an additional set of textbooks, testing modifications, and preferential seating away from social peers. The testing modifications required the student to repeat directions in order to confirm her comprehension, a special testing location and extended time (Exhibits 33A, JJ).

        Petitioners did not accept the CSE's recommended educational program. By letter dated August 19, 2002, they informed respondent's CSE chairperson that the student would be enrolled in Landmark for the 2002-03 school year, and requested an impartial hearing for the purpose of obtaining an award of tuition reimbursement, legal fees, expenses, associated costs, transportation and reimbursement for an independent educational evaluation (IEE) (Exhibit 32A). The hearing commenced on September 18, 2002 and concluded on March 7, 2003. In a decision dated March 28, 2003, the hearing officer found that respondent had met its burden of proving that it had offered the student an appropriate program and placement in the least restrictive environment (LRE) for the 2002-03 school year. The hearing officer denied petitioners' request for tuition reimbursement and related expenses and also denied petitioners' request for reimbursement for an IEE.

        Petitioners contend that the hearing officer erred by denying their request for tuition reimbursement and related expenses for the 2002-03 school year. Since petitioners do not appeal from that part of the hearing officer's decision which denied their request for reimbursement for an IEE, that part of the decision is final and not subject to review (34 C.F.R. § 300.510[a]).

        Petitioners assert that the educational program recommended by respondent's CSE did not satisfy the procedural requirements of federal and state law because they were "denied notice of evaluations, programming, and goals and objectives" which resulted in a denial of their right to participate in the development of their daughter's IEP (Pet. ¶ 38). Petitioners further contend that they were denied access to information about the proposed placement prior to the start of the school year and that they were also confused about the recommended goals and objectives (id.). Petitioners further assert that the student's IEP for the 2002-03 school year was inappropriate and failed to adequately address her needs.

        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]). 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]). The 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, 532 U.S. 942 [2001]; Walczak v. Bd. of Educ., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-092).

        To meet its burden of showing that it had offered to a 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 the Individuals with Disabilities Education Act (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, 206, 207 [1982]). The student's recommended program must also be provided in the LRE (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

        Both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 U.S. at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]). Moreover, "adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 U.S. at 206; M.S., 231 F.3d at 102). The initial procedural inquiry is no mere formality (Walczak, 142 F.3d at 129). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump; rather, the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93). Procedural flaws do not automatically require a finding of a denial of FAPE, but procedural inadequacies that individually or cumulatively result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP, clearly constitute a denial of FAPE (W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D. Conn. 2001]; see, Arlington Cent. Sch. Dist. v. D.K., ___ F.Supp.2d ___, 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; Evans, 930 F.Supp at 93; see also, 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]; Application of a Child with a Disability, Appeal No. 02-041; Application of a Child with a Disability, Appeal No. 02-015).

        Petitioners' contentions that their procedural rights were violated, resulting in their exclusion from the IEP development process, are not supported by the record. Petitioners were significantly involved in the development process, beginning in January 2001, when the student first returned to respondent's Pawling High School (Exhibits 1-4, 12-13, 15, 19-24, 26-35; Transcript pp. 226, 248, 307, 311). By letter dated May 7, 2002, petitioners were given notice of and invited to attend the student's annual review to be held June 14, 2002 (Exhibit 23 p. 3). The notice substantially conformed with the requirements of § 300.345(a),(b) and 8 NYCRR 200.5(c),(d).² An IEP planning meeting was held on May 17, 2002, prior to the student's annual review. Petitioners were notified of and invited to attend the planning meeting by letter dated April 5, 2002 (Exhibit 23 p. 1). The transcript of the planning meeting reflects that the student's mother, the CSE chairperson, two teachers and the student's guidance counselor were in attendance (Exhibit E). The Transcript of the planning meeting further reflects that the student's mother actively participated in the meeting and was made aware of her daughter's progress toward her 2001-02 IEP goals, her current needs and the concerns of her daughter's teachers (Exhibit E pp. 7-8, 11-13, 20-22, 25, 30-38, 45-47, 49-50, 52, 57, 60-61). The transcript of the June 14, 2002 annual review also reflects the participation of petitioners, and consideration of their concerns, in the formulation of the student's IEP (Exhibit F pp. 10-11, 24, 26-28, 33, 35-37, 39). Therefore, I find petitioners' participation in the development of their daughter's IEP to be consistent with the requirements of the IDEA (34 C.F.R. Part 300, Appendix A, Question 5).

        An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-109; Application of a Child with a Disability, 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). 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]). 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 the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).

        The record reveals that at the June 14, 2002 annual review, the CSE considered current information pertaining to the student's performance as required by 8 NYCRR 200.4(f)(1). The 2002-03 IEP reflected the use of assessment techniques such as a social history dated April 24, 2001, a psychological evaluation dated June 21, 2001, a classroom observation dated April 19, 2001, an educational evaluation dated May 13, 2002, a physical exam dated January 1, 2001, a neuropsychological evaluation dated August 9, 2001, the Test of Written Language (TOWL) dated March 2, 1999 (Exhibits 33A, JJ). In developing the IEP, the CSE also relied upon verbal descriptions of current functioning and needs presented by the members of the CSE, including the director of special education, the student's special education teacher, the school psychologist, the student's reading teacher, the student's guidance counselor, and the student's regular education teacher (Exhibit F pp. 2-5, 7-9, 18-22, 29, 31-32).

        Petitioners allege that respondent failed to consider their daughter's progress toward her 2001-02 goals and objectives and therefore had no basis for adopting new goals and objectives (Pet. ¶ 22). The student's performance to date was reviewed by her teachers at the annual review (Exhibit F). The student's special education teacher and school psychologist both gave reviews of her progress in areas of need (Exhibit F pp. 20-23). Their comments were sufficient for a discussion of goal development. Petitioners allege that respondent's CSE did not consider their daughter's report card at her annual review (Pet. ¶ 21). The record reflects that the student's grades were reported by the student's guidance counselor at the annual review on June 14, 2002 (Exhibit F pp. 2-4). In addition, the student's grades were also reviewed and discussed at the IEP planning meeting held May 17, 2002 (Exhibit E pp. 19-20). The student's writing lab teacher also attended the annual review and gave a description of petitioners' daughter's performance in his class, identifying her strengths and needs (Exhibit F pp. 4-5). The student achieved passing grades through conscientious homework completion and class participation (Exhibit E p. 38). Respondent's staff acknowledged that, although the student was able to achieve passing grades (Exhibit 36), her performance on Regents exams was a concern, and planning included efforts to address that concern (Exhibit E pp. 32, 41-42, 55-59; Transcript p. 335). Assistance was available to petitioners' daughter through regular education labs as well as special education tutorials, and the record indicates that she benefited from these services when she did attend them (Transcript p. 1149). The record further indicates, however, that the student's attendance at sessions designed to provide extra assistance was sporadic despite respondent's efforts to accommodate student and parent preferences while addressing the student's needs (Transcript p. 1149).

        An IEP must include measurable annual goals which have benchmarks or short-term objectives related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a][2]; 8 NYCRR 200.4[d][2]). The record reveals that a discussion of current performance levels also took place at the May 17, 2002 IEP planning meeting, prior to the development of draft goals and objectives by the student's special education teacher (Exhibit E pp. 34-38, 45-47). Petitioners were encouraged to participate in the identification of needs for goal development at the IEP planning meeting (Exhibit E pp 9-10, 24-28, 39, 62, 70, 72-73). The transcript of the annual review also reveals that the student's parent was given a copy of draft goals and objectives at the meeting (Exhibit F pp. 39-40).

        Petitioners contend the following areas of need were unaddressed by their daughter's IEP: reading and comprehending all materials presented in her regular high school classes; reviewing and repeating academic exercises; development of study skills; drafting study guides and graphs; addressing increasing stress over academics; development of strategies to focus attention on tasks at hand; receiving assistance for high rate of absenteeism; practicing reading at her functional grade level; practicing and reviewing basic writing skills at her functional grade level (fourth grade); taking tests and other assessments; preparation for Regents exams; and completing all daily classroom assignments (Pet. ¶ 33).

        Petitioners' contentions are unpersuasive. The student's IEP included a reading goal specifically addressing the development of skills necessary to read content area textbooks and other source materials for information and understanding. This goal was supported by objectives of: identifying, defining and usingrelating to the use of new vocabulary words derived from content area textbooks; using new words in classroom discussions and writing assignments; the extraction of information from newspapers, maps, and brochures; and the identification of key concepts and supporting information from written texts (Exhibit 33A).

        The IEP also included goals relating to the development of study skills to enable the student to attain passing grades in content area courses and to develop organizational and time management skills necessary to complete assignments in a timely manner and prepare for tests in all content area courses (Exhibit 33A). The CSE recommended study skills objectives relating to the identification of key concepts and new vocabulary words in content area textbooks; the use of key concepts as study guides for test preparation; the use of class notes in each content area class to extract key concepts from lectures; the weekly review of class notes and outlines of content area courses to identify with her resource room teacher areas in which she is experiencing difficulty; and the use of organizational planners to plan daily and long term assignments and test preparation (Exhibit 33A).

        Before I address the goals and objectives recommended for petitioners' daughter in the area of writing, it is necessary to discuss the assertion that their daughter is currently functioning at the fourth grade level in writing (Pet. ¶ 30). The record indicates that this may not be an accurate depiction of the severity of this area of need. An April 2001 TOWL yielded a standard score of 101 for overall written language, suggesting that the student's performance in this area was on grade level at that time (Exhibit 6). One year later, on an April 2002 administration of the Wechsler Individual Achievement Test (WIAT), the student's standard score of 77 on the subtest measuring written expression resulted in a grade equivalent score of 4.8. At the June 14, 2002 annual review, the student's regular education writing lab teacher stated he had not observed a weakness in the student's written work for content area assignments (Exhibit F p. 5). The reading teacher who administered the April 2002 WIAT concurred with the writing lab teacher, stating that, although the student's writing samples were simplistic and used limited vocabulary, the student used good sentence structure and presented ideas in a sequential manner (Exhibit F p. 8). This observation was supported by a readministration of the WIAT in June 2002 by the parents' independent evaluator. On this second administration of the WIAT, the student's standard score of 108 for written expression was above the 70th percentile, with a grade equivalent of >12.9 (Exhibit DD).

        The CSE chairperson testified that the student needed to improve her organization and formulation of paragraphs for 11th grade writing assignments (Transcript p. 339). To address this need, the CSE recommended a writing goal for completion of 11th grade writing assignments in content areas. The objectives for this goal included identifying and outlining of thesis statements for essays, including supporting details for each subtopic in an outline, using information in the outline to draft an essay, and reviewing and rewriting the draft (Exhibit 33A). The CSE also included a writing goal relating to critical analysis of and literary response to assigned reading selections. The objectives developed in support of this goal involved the identification of the main idea of assigned reading selections; identification of theme, plot, subplots, sequence of events, function of setting and characters in assigned reading selections; the identification and discussion of who, what, where, when, why and how questions derived from classroom reading assignments; the use of critical thinking skills to interpret the meaning of reading assignments and draw appropriate inferences; and the identification and explanation of figurative language (Exhibit 33A).

        In addition, an IEP must describe how the student's progress towards the annual goals will be measured and how the student's parents will be regularly informed of such progress (34 C.F.R. § 300.347[a][7]; 8 NYCRR 200.4[d][2][iii],[x]). The student's IEP (Exhibit 33A) conforms to these standards. Each objective is accompanied by an appropriate method of evaluation and anticipated completion date. Measures of progress are specifically stated for each objective, with percentage of mastery adjusted to reflect the objective's level of difficulty and reasonable expectations of progress within the school year. For example, mastery of a study skills objective for weekly review of class notes and identification of areas in which the student lacks understanding and needs teacher assistance is set at 75 percent with no more than two reminders at the end of the first marking period and at 100 percent with no reminders at the end of the fourth marking period. Methods of measuring progress include a variety of assessment techniques such as teacher and student checklists, test scores, teacher review of assignment sheets, teacher made tests and graded outlines, and are individualized to be appropriate to each objective. Considered together, the objectives for each goal provide logical steps toward the completion of the goal. Finally, it is noted in the IEP that progress will be reported four times during the school year.

        An IEP must also include a statement of the special education and related services and supplementary aids and services to be provided to or on behalf of the student, as well as a statement of the program modifications or supports for school personnel that will be provided to the student (34 C.F.R. § 300.347[a][3]; 8 NYCRR 200.4[d][2][iv]). Such education, services and aids must be sufficient to allow the student to advance appropriately toward attaining his or her annual goals (34 C.F.R. § 300.347[a][3][i]; 8 NYCRR 200.4[d][2][iv][a]). Respondent's CSE recommended an appropriate program and placement for the student (Exhibits 33A, JJ). The 2002-03 IEP is both adequate and appropriate, and includes a thorough description of the student's needs, with services, accommodations, goals, and objectives to address those needs. It is clear from the document that the CSE gave consideration to evaluation reports, particularly the psychological evaluation dated June 21, 2001, and the neuropsychological evaluation dated August 9, 2001, which was conducted at the parents' request (Exhibits 11, 16). These evaluations were supplemented and updated through reports from teachers who were working directly with the student at the time the IEP was developed (Exhibits 33A, E, F).

        The neuropsychological evaluation indicated that petitioners' daughter had "difficulty processing verbal communication" and recommended that this need be addressed by having the student repeat directions that she heard or otherwise demonstrate an appropriate response to directions (Exhibit 16). This need and recommendation were both included in the student's IEP (Exhibits 33A, JJ). The neuropsychological evaluation also recommended the following: preferential seating away from social peers and environmental distractions to address her attention deficits; provision of class notes, study guides and a tape recorder to address her processing difficulties; testing in a separate location with "time-and-a-half as well as a reader" to address her reading and attention difficulties; and waiver of the foreign language requirement, ongoing instruction in reading for information, strategies to break down information into smaller pieces, repetition, direct instruction in learning strategies, cognitive remediation and in-school tutoring to address her dyslexia, difficulty processing large pieces of information, difficulty processing written information and reading comprehension difficulties (Exhibit 16). These needs and recommendations were also incorporated into the student's IEP (Exhibits 33A, JJ).

        The psychological evaluation made the following recommendations: reduce reading load or redistribute assignments; prepare ahead for all subject area assignments; ask questions to clarify, ask teacher to write important facts on the board, use study guides, and outline chapters prior to starting them; review notes daily; develop study discipline; list unfamiliar vocabulary (Exhibit 11). These recommendations were incorporated into the student's IEP to be used as strategies to address the student's needs (Exhibit 33A).

        In sum, I conclude that respondent satisfied its obligation to comply with the procedures required by the IDEA in developing an IEP for petitioners' daughter.

        As noted above, "adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 U.S. at 206; M.S., 231 F.3d at 102). The United States Court of Appeals for the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]; see, Walczak, 142 F.3d at 130).

        The respondent has, by a prepondence of the evidence, met its burden of showing that the substantive program developed was calculated to provide educational benefits. Indeed, the record reflects indicators of progress as that term is used in Rowley and Walczak. I note that the evidence indicates that notwithstanding the fact that significant portions of the student's 2001-02 IEP had not been fully implemented due to her failure to attend sessions made available to her and notwithstanding program and schedule disruptions occasioned by efforts to accommodate requests by petitioners (Transcript pp. 107, 119-21, 138-40, 157-58, 273-74, 945), there is evidence in the record that the student made progress that year (Transcript p. 1149). Progress reports and teacher testimony indicate that the professional staff responsible for development and implementation of the student's program had an understanding of the student's needs and were equipped to address them (Transcript pp. 313, 332, 335, 338-40, 810-23, 1140, 1144, 1150, 1193, 1227). The resource room teacher testified that despite sporadic attendance, the student made progress on her 2001-02 IEP goals and objectives when she attended tutoring sessions (Transcript p. 1149). The teacher's knowledge of the student's strengths, needs and learning styles, particularly when combined with progress reports from other teachers and formal evaluation reports (Transcript pp. 337, 1140, 1144, 1150, 1193), provided a sufficient basis for the development of an IEP reasonably calculated to enable petitioners' daughter to progress educationally.

        The 2002-03 IEP provides for small group instruction two periods per day (Exhibits 33A, JJ). Both sessions are designed to support content area subjects, and would have provided skills training as well as support and instruction in compensatory strategies (Exhibits 33A, JJ; Transcript pp. 339-42). Evaluators reported significant difficulty with maintaining attention and difficulty understanding directions (Exhibits 11, 16). The IEP program modifications and management needs sections address this thoroughly and provide specific instructions for accommodation. Program modifications included preferential seating away from social peers, periodic refocusing, reteaching, review of directions and assignments, and checking for understanding by having the student explain directions to the teacher. Management needs specify provision of a learning environment with minimal distractions, subtle refocusing when necessary, preview and review of new concepts and periodic checking by the teacher to confirm understanding. Respondent's evaluators also reported reading comprehension seriously discrepant with grade expectations. The IEP goals and objectives address reading of content area textbooks for information and understanding and development of study skills for content area courses. Program and test modifications such as use of study guides and a tape recorder provide accommodations for reading deficits.

        Petitioners assert that their daughter experienced stress over academics, and emotional and social difficulties. They also argue that the CSE failed to address her high rate of absenteeism and inappropriately discontinued her counseling services. The record indicates that the student's reported anxiety and emotional distress were not observed in school (Transcript pp. 610, 845-46, 1817) and that petitioners did not advise respondent that their daughter was receiving counseling for anxiety or depression (Transcript pp. 611, 1764-65, 1769, 1844). It also appears that petitioners provided written excuses for their daughter's absences indicating illness or visits to her pediatrician, rather than school avoidance, as the reasons for such absences (Exhibit V); under the circumstances presented, I find that the CSE acted appropriately by noting on her IEP that her attendance would be monitored (Exhibits 33A, JJ; Transcript p. 608). With respect to the discontinuation of the student's counseling services, such counseling was being provided to address her organizational and cognitive deficits rather than social and emotional concerns (Exhibits B, F pp. 20-22; Transcript pp. 752-53, 757, 759-61). In sum, the record before me does not support petitioners' claim that respondent acted improperly with respect to their daughter's social and emotional needs.

        Based on my review of the record, I conclude that respondent has sustained its burden of demonstrating that the IEP it offered was reasonably calculated to deliver educational benefits to this student.

        I have considered petitioners' remaining claims and find them to be without merit. Having determined that respondent has met its burden of proving that it had offered to provide a FAPE to the student during the 2002-03 school year, I do not determine whether petitioner has met the other criteria for an award of tuition reimbursement.

THE APPEAL IS DISMISSED.