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Application of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF POUGHKEEPSIE for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability


Shaw & Perelson, LLP, attorneys for petitioner, Lisa S. Rusk, Esq., of counsel

Westchester/Putnam Legal Services, attorneys for respondents, Daniel J. Schneider, Esq, of counsel


         Petitioner, the Board of Education of the City School District of the City of Poughkeepsie (district), appeals from an impartial hearing officer's decision which found that petitioner failed to offer respondents' daughter an appropriate educational program for the 2003-04 school year, and ordered petitioner to prospectively pay respondents' daughter's tuition for the upcoming 2003-04 school year at a private school where respondents had previously placed the child. The appeal must be sustained.

        At the time of the hearing, in May 2003, respondents' daughter was ten years old and in the fourth grade at the Kildonan School (Kildonan) (Transcript p. 344; Exhibit 11), a private school for children with language-based learning disabilities which has not been approved by the Commissioner of Education as a school with which school districts may contract to educate children with disabilities. Respondents' daughter attended petitioner's public schools from kindergarten through third grade (Transcript pp. 344-45). In kindergarten, the teacher noticed that respondents' daughter needed additional help, as a result petitioner began providing resource room services to the child (Transcript p. 346). Testing completed while the child was in first grade yielded a verbal I.Q. score of 92, a performance I.Q. score of 87, and a full scale I.Q. score of 89 on the Wechsler Intelligence Scale for Children-III (WISC-III), indicating cognitive ability in the low average range (Exhibit 6; Transcript p. 46). Upon entering third grade in September 2000, respondents' daughter was referred to petitioner's Committee on Special Education (CSE), which classified her as learning disabled, and developed an individualized education program (IEP) for her which set out specific annual goals and objectives, allowed for various testing modifications, and specified resource room services for 40 minutes, five times per week (Exhibit O; Transcript pp. 345-47).

        At the end of her third grade year, the CSE met and determined that respondents' daughter's educational needs could not be met within the district and recommended she attend Kildonan for the 2001-02 school year (Transcript pp. 355-56, 384-85; see also Exhibit D, E, F, G). By letter dated June 3, 2001, respondents notified petitioner that they found the district's schools inadequate to meet their child's needs and that they were enrolling their daughter at Kildonan for the 2001-02 school year (Exhibit C; Transcript p. 356). In the letter petitioners requested tuition reimbursement. The record suggests that an impartial hearing was initiated (see Exhibit 23, Transcript p. 401), and that, as a result of a stipulation of settlement between the parties, the district apparently agreed to finance the child's tuition at Kildonan for the 2001-02 school year (see Transcript pp. 356, 401).

        In May 2002, petitioner's CSE met and recommended the child's placement remain at Kildonan for the 2002-03 school year (Exhibit B); however, on August 28, 2002 the CSE apparently reconvened without the parents (Exhibit 23; Transcript pp. 367, 131, 135-36, 379-80) and ultimately proposed recommending that respondents' daughter return to petitioner's school in regular education courses with resource room services (Exhibit 23). Respondents rejected the CSE's proposed recommendation, continued to enroll their daughter at Kildonan for the 2002-03 school year, and requested an impartial hearing on tuition reimbursement (see Pet. Exhibit A; Exhibit 23). The parties reached a written settlement agreement for the 2002-03 school year (Pet. Exhibit A), in which the district maintained that they offered an appropriate program, but agreed to pay the child's tuition at Kildonan for the 2002-03 school year in exchange for respondents' withdrawal of their hearing request. The agreement specified that at the end of the 2002-03 school year the CSE would meet again to develop an appropriate placement for the child for the 2003-04 school year (id.).

        Beginning in March 2003, the CSE chair and the school psychologist began their evaluation of the child by observing respondents' daughter in classes at Kildonan on two separate days (Transcript pp. 40, 142; see Exhibit 3). By letter dated March 13, 2003, respondents maintained that the district still could not provide their daughter with an appropriate educational program, and they requested an impartial hearing seeking tuition reimbursement at Kildonan for the upcoming 2003-04 school year (Exhibit 1; Transcript pp. 426, 35). The CSE continued to evaluate the child. On March 10 and 20, 2003, the school psychologist administered various tests to the child, including the Wechsler Individual Achievement Test – Second Edition (WIAT-II) and the Woodcock – Johnson III Tests of Achievement (WJ-III) (Transcript pp. 37, 140-41; Exhibit 2). On March 24, the CSE met and reviewed the classroom observation reports, reports from Kildonan teachers, standardized test results and writing samples from Kildonan, and part of the results of the evaluation conducted by the district's psychologist (Transcript pp. 56-58, 62, 64-67, 149-50). Based upon the child's writing sample and the parents' concerns, the CSE recommended an additional occupational therapy (OT) evaluation before any final recommendations were made (Transcript p. 71).

        The CSE reconvened one week later, on March 31, with the school's occupational therapist in attendance, to review the results of the OT evaluation (Exhibit 17), as well as the results of the school psychologist's educational report (Transcript pp. 73, 150-51), and to draft an IEP for the child for the 2003-04 school year (Transcript pp. 74-75, 428; see Exhibit 18). The occupational therapist reviewed his evaluation of the child with the CSE and concluded that she did not require OT, based upon his finding that most of her abilities on the assessment were age appropriate (Transcript p. 74; Exhibit 17). The school psychologist's report revealed that the child's strengths were in oral language and reading, with relatively low scores in the areas of written language and expression, areas in which she required assistance (Exhibit 2; Transcript pp. 141, 146, 152, 86-87).

        After a review of all available information, the CSE developed an IEP which continued to classify the child as learning disabled, finding her areas of weakness based on her test scores to be written expression and spelling (Transcript pp. 76, 86), as well as reading comprehension, organizational and study skills, and homework completion (Exhibit 18). The IEP indicated that her management needs included the need for redirection and additional time to complete assignments (id.). The CSE recommended placing her in a general education fifth grade class at petitioner's elementary school in an integrated classroom of approximately 25 students, with a regular education teacher, a special education teacher, and a teaching assistant (Transcript pp. 78, 238-39; Exhibit 18, pp. 1, 3). The CSE also recommended resource room services five times per week for 40 minutes, and counseling services once a week for 30 minutes to address concerns regarding her transition from Kildonan (Exhibit 18; see also Transcript pp. 78-80, 82-83). The CSE included various program and test modifications and assistive technology in the IEP to address the child's writing difficulties, including affording her additional time to take tests, use of a word processor, graphic organizer, assistance with refocusing and redirection, modified homework assignments, a waiver of spelling requirements, and access to assistive software programs (Exhibit 18; Transcript pp. 79, 440). The CSE reviewed the goals and objectives in the child's IEP, and the CSE chair and the school psychologist both found them to be appropriately designed to meet her educational needs and reasonably attainable by the student within the 2003-04 school year (Transcript pp. 77-78, 151-52, 440). The parent did not object to any of the proposed goals and objectives nor suggest any changes (Transcript pp. 214, 439). At the parent's request, the CSE added counseling services and social/emotional goals to the IEP to assist with the child's transition between schools (Transcript pp. 438, 152-53). The CSE decided to meet again in a few weeks to review additional issues relevant to the program, and to arrange for the parent to visit the proposed integrated class (Transcript pp. 91, 93, 403).

        The CSE reconvened again on April 28, 2003 to consider an updated social history of the child (Transcript p. 194) and to review a corrected version of a standardized test conducted in 2002 that had been scored using wrong date of birth (Transcript pp. 93, 162-63, 194; Exhibit 5). The school psychologist reported that only one test from 2002 had used an incorrect date of birth, and she rescored the test using the correct birthdate and determined that "[r]esults are similar to those reported on 4/29/02. There are no significant changes. The results to the composite scales remained the same" (Exhibit 5; see Transcript p. 163). The CSE also considered placing the child in a 12-month program, but found that the child was ineligible due to a lack of evidence of regression during the summer months (Transcript p. 195); however, the CSE did suggest that the child be placed in the district's four week Title 1 summer program which consisted of an integrated classroom that reinforced reading and math skills in small groups (Transcript pp. 195, 223). The CSE also recommended adding books on tape to the child's IEP (Transcript p. 196). The child's mother was present at each of the three CSE meetings (Transcript p. 425; see, e.g., Exhibit 18) and participated in the discussion of the student's goals and objectives (Transcript pp. 438-439, 214). Respondents continued to reject the district's proposed placement, and continued to pursue their objections at an impartial hearing (Transcript pp. 402-03).

        The impartial hearing was held on April 23 and April 30, 2003. On June 9, 2003, the hearing officer rendered his decision finding that the district failed to offer an appropriate program. He ordered the CSE to reconvene within ten days to adjust the goals and objectives in the IEP, and to conduct a functional behavioral assessment (FBA) of the child. He also found that the program at Kildonan was appropriate and ordered the district to provide tuition for the student at Kildonan for the upcoming 2003-04 school year.

        Ten days later, on June 19, 2003, the CSE reconvened, as directed by the hearing officer, and reviewed and revised the child's IEP with the parent (Pet. Exhibit B). The resultant IEP added a 1:1 reading instruction class for 30 minutes, three times per week to address additional reading goals, and added additional goals and objectives in social development, as well as three additional objectives in study skills, and seven additional objectives in written language to further address her specific needs in written expression (Pet. Exhibit B). The CSE also determined, and the parent agreed, that an FBA was not necessary because there were currently no behaviors interfering with the child's learning (Pet. Exhibit B, at p. 3).

        Petitioner appeals from the hearing officer's decision, arguing that the district did offer an appropriate program and placement for the child for the 2003-04 school year, and that the hearing officer erred in finding that the IEP lacked appropriate goals and objectives and in ordering the district to pay prospective tuition at Kildonan for the upcoming 2003-04 school year.

        The purpose of the Individuals with Disabilities Education Act (IDEA), is to ensure that all children with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]). The term "free appropriate public education" means special education and related services that: have been provided at public expense under public supervision and direction, and without charge; meet the standards of the State educational agency; include an appropriate preschool, elementary, or secondary school education in the State involved; and are provided in conformity with the IEP required under 20 U.S.C. § 1414(d) (see 20 U.S.C. § 1401[8]).

        When a school district fails to offer or provide a disabled child a FAPE, the child's parent may remove the child to an appropriate private school and then seek retroactive tuition reimbursement from the state (see Burlington v. Dep't of Educ., 471 U.S. 359, 369-370 [1985]; M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]). 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, 471 U.S. 359). 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., 231 F.3d at 102; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-092). The student's 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]).

        To meet its burden of showing that it had offered to a provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the 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, 206-07 [1982]). Procedural compliance includes formulation of an IEP which conforms to the requirements of 20 U.S.C. § 1414(d) (see Rowley, 458 U.S. at 206, n.27). Substantive compliance requires 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 [internal quotation marks and citations omitted]; see Walczak, 142 F.3d at 130). Procedural flaws do not automatically require a finding of a denial of FAPE; however, procedural inadequacies that result in the loss of educational opportunity clearly result in a denial of FAPE (see Adam J. v. Keller Indp. Sch. Dist., 2003 WL 1894693 [5th Cir. 2003]; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No., 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; see alsoJ.D. v. Pawlett Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000]). Several serious procedural regulations surrounding the development of the child's IEP are undeniably involved here. However, whether or not the IEP could be invalidated on alleged procedural defects alone, the hearing officer supplemented his analysis of the IEP's alleged inadequacies with the finding that the IEP was not reasonably calculated to enable the child to receive educational benefits—the second issue identified by Rowley (IHO decision, p. 16) (M.S.; 231 F.2d at 103; Walczak, 142 F.2d at 130). Therefore, while I am mindful to note any procedural inadequacies, I will consider whether the district supported its burden of demonstrating that the IEP was reasonably calculated to confer educational benefits to the child.

        An IEP is a written statement for a child with a disability that is developed, reviewed, and revised at least annually, with full participation of concerned parties, that includes: (1) the child's present level of educational performance; (2) the annual goals for the child, including short-term instructional objectives; (3) the specific educational services to be provided to the child, and the extent to which the child will be able to participate in regular educational programs; (4) the transition services needed for a child as he or she begins to leave a school setting; (5) the projected initiation date and duration for proposed services; and (6) objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectivesare being achieved (20 U.S.C. § 1414[d]).

        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, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Federal regulations require that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).

        In the instant case, the CSE based its recommendation on a variety of sources (see Exhibit 18), including the most recent teacher reports available from Kildonan, dated one month prior to the March IEP (Exhibit 11); a comprehensive psychoeducational report by the district's psychologist, which included two separate standardized achievement tests (WIAT-II and WJ-III) administered to the child just two weeks prior to the CSE meeting and used to determine the child's present performance levels (Exhibit 2); an OT evaluation ordered and completed one week prior to the drafting of the IEP (Exhibit 17); classroom observations of the child at Kildonan by the CSE chair and the school psychologist done the same month the IEP was developed (Exhibit 3; Transcript pp. 40, 142); Kildonan teacher evaluations of the child from the previous year (Exhibit 12); the child's writing samples (Exhibits 13-15); results of prior educational testing of the child in both 1999 and 2002 (Exhibits 6, 7, 8, 10, 4); the child's health history (Exhibit 9); and information from the parent on the child's needs and social history (Transcript pp. 152-53, 194, 425, 438-39). In meeting twice in March and again in April, the CSE had access to and carefully considered a wide variety of both subjective and objective measures of the child's needs and abilities before determining her present levels of performance. Indeed, the CSE utilized a very thorough and current array of both objective and subjective measures of the child's needs upon which to base an accurate determination of the child's present levels of performance and needs. Based on all of this information, the CSE determined that the child was able to demonstrate age appropriate pragmatic, receptive, and expressive communication skills and a grade level vocabulary, but that she did not demonstrate appropriate organizational and study skills and was functioning below grade level in spelling; such information was included in the March 31 IEP (Exhibit 18, p. 2). The CSE determined that the child needed help in written expression, spelling, reading, and organizational and study skills. I find the CSE's determination of the child's needs and present levels of performance to be consistent with the standardized test scores and subjective parent and teacher reports of the child's abilities contained in the record.

        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 for 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]). In addition, it must be in the LRE (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

        In the instant case, the CSE placed the child in petitioner's elementary school in a regular education fifth grade class with an integrated model, with supplementary resource room services for 40 minutes per day, and counseling services for 30 minutes per week (Exhibit 18, pp. 1, 3). In addition, an array of program modifications, testing accommodations, and assistive technology were provided in the IEP to allow her to advance in the general education curriculum, including additional time to complete assignments/tests, waiver of spelling requirements, use of a graphic organizer, use of a scribe, use of a variety of computer software writing programs and books on tape (Exhibit 18; Pet. Exhibit B). The proposed class of 25 students included approximately ten students with disabilities and was staffed by a regular education teacher, a special education teacher, and a teaching assistant (Transcript p. 239). The regular education fourth grade teacher, who was currently teaching the students expected to be in the proposed class the next year with respondents' daughter, explained that the students with disabilities in this class generally had more intense needs than respondents' daughter (Transcript p. 181), supporting the recommendation for regular education placement with special education support. The record indicates that when the child was in petitioner's public schools in the past, she was not in such an integrated class (Transcript pp. 83, 221; Exhibit O).

        The exposure of students with disabilities to their nondisabled peers is an important aspect of his or her educational and social development (see Oberti v. Bd. of Educ., 995 F.2d 1204, 1216 [3d Cir. 1993]; Daniel RR. v. Bd. of Educ., 874 F.2d 1036, 1049 [5th Cir. 1989]; Mavis v. Sobol, 839 F.Supp. 968, 990 [N.D.N.Y. 1993]). A student with a disability is to be educated with nondisabled students "to the maximum extent appropriate" (34 C.F.R. § 300.550[b][1]; 8 NYCRR 200.6[a][1]), and can only be removed from the regular education environment if the nature or severity of the disability is such that education in regular classes with supplementary aids and services cannot be achieved (34 C.F.R. § 300.550[b][2]). The CSE chair and the school psychologist, who reviewed all of the child's evaluative data, both found that this child had strengths that she needed to be able to use with typical peers (Transcript pp. 81-82, 91, 155) and that while such an opportunity was available in the integrated classroom, such a population was not available at Kildonan (Transcript pp. 90-91, 320). The regular education teacher stated that she had seen students similar in needs to respondents' daughter benefit greatly from exposure to nondisabled students in the integrated class (Transcript pp. 187-88, see also, pp. 263-69). Even the dean at Kildonan testified that respondents' daughter could benefit from exposure to her nondisabled peers (Transcript p. 318). Based on the level of support services available to the child in petitioner's integrated class, along with the additional resource room services to be provided to her, I concur with the hearing officer's finding that petitioner's recommended placement provided this child the opportunity to receive educational benefits with the appropriate level of support in the LRE. I also find the placement and services provided to be sufficient to allow the student to advance appropriately toward attaining her annual goals, as she is provided with access all day to the services of a regular education teacher, a special education teacher, and a teaching assistant in the integrated classroom; plus a daily 40 minute session with a resource room teacher in a 5:1 setting; and additional 1:1 instruction in reading three times per week for 30 minutes with a certified reading teacher (Pet. Exhibit B; Transcript pp. 187, 255).

        An IEP must also include measurable annual goals, including 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][iii]). 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][x]). The hearing officer's finding that the goals and objectives in the March 31 IEP are inadequate, immeasurable, and/or not related to the child's needs is wholly unsupported by the record. I find that not only are the goals and objectives as contained in the March 31 IEP appropriate and specific to the child's needs, but that the goals and objectives as amended in the final IEP produced in June further enhanced the child's proposed program.

        Based on her present performance levels, the March IEP identified five areas of need for the child: study skills, reading, writing, social/emotional/behavioral skills, and motor skills (Exhibit 18). Each area had goals and objectives tailored to the child's individual weaknesses taken directly from current testing and teachers' anecdotal reports. The March IEP contained a total of seven annual goals and 23 short-term objectives. The goals and objectives address both the child's major deficits in writing as well as her moderate deficits in reading comprehension and organization of assignments. Frustration related to academics is addressed in a forthright manner through a strong series of study skills, supplemented by a social/emotional goal for decision-making. Each objective in both the March IEP and the June IEP is directly related to the achievement of a specific goal, and all of the objectives include a schedule for measurement of progress. For example, the goal in the March IEP for spelling, acknowledged as a specific area of need, provides for a learning progression in which the student would recognize spelling errors in her written work with 85 percent mastery by February 1, 2004, identify errors with 90 percent mastery by April 15, 2004, and self-correct spelling errors in her written work with 90 percent mastery by June 15, 2004 (Exhibit 18). Each objective also specifies that these percentages will be determined by "recorded observations" (Exhibit 18; Pet. Exhibit B). By specifying that the observations be recorded, the IEP holds the individuals responsible for determining progress to a form of documentation. This requires use of methods such as checklists and/or anecdotal records to gauge and verify progress. The IEPs go even further by specifying the person responsible for maintaining the recorded observations of each objective (i.e., classroom teacher, special education teacher, psychologist). Benchmarks are also present in the IEP, as each goal includes a target date, the objectives increase in complexity for later dates in the school year, and the objectives are directly related to the goals. The child's former special education teacher in the district was a member of the CSE and testified that he had reviewed the goals and objectives and found them to be appropriate for the student (Transcript pp. 216-19). I concur with the CSE chair, the school psychologist, the regular education teacher, and the special education teacher who all agreed that the goals and objectives contained in the March IEP were appropriately designed to meet the child's educational needs and reasonably attainable by her within the 2003-04 school year (Transcript pp. 77-78, 151-52, 180-81, 440, 219, 251-63).

        Nevertheless, the hearing officer ordered the CSE to reconvene within ten days of his decision to review and revise, where appropriate, the goals and objectives of the IEP. The CSE immediately reconvened with the parent and carefully reviewed each goal and objective, and on June 19, 2003, issued a revised IEP (Pet. Exhibit B). First, the CSE incorporated the suggestions made at the April 28 CSE meeting into the new IEP. Instead of just adding a summer reading course as originally discussed, the June IEP added the additional service of one-to-one instruction in reading throughout the school year three times per week, 30 minutes per session, to be provided by a certified reading teacher. Although this latter service is not a special education service and not required on the IEP, the CSE included this information on the IEP to further increase the likelihood of success for the student in achieving grade level performance. The June IEP also added the April 28 recommendation of books on tape, consistent with the child's recent subtest scores on the WJ-III indicating above average ability in listening comprehension (standard score 102, 56th percentile) and oral comprehension (standard score 107, 68th percentile), as well as a recent report from the child's teacher at Kildonan who indicated that this was a successful learning strategy for the child (Exhibit 11).

        The June IEP added two new goals, one for reading and one for writing, as well as 15 additional objectives, seven of which were for writing, the child's weakest area (Pet. Exhibit B). To address the student's needs in the area of written language, the CSE added a second writing goal for improvement of written language skills necessary for written expression with seven additional objectives. The seven objectives were designed to develop a sequential progression from identifying a topic sentence and correctly writing one by December 15, 2003, to independently writing a paragraph by June 15, 2004. These objectives were consistent with a November 27, 2002 report from the Kildonan language-training tutor, who indicated that, at that time, the student was working on sentence structure and parts of a sentence (Exhibit 12). The CSE also added a second reading goal for word recognition and decoding, an area of moderate weakness for the student, with three new objectives, one of which was an objective for recognition of sight words and for decoding of paragraphs and stories at the fourth grade level, consistent with information provided in the Kildonan language-training tutor's progress report (Exhibit 12). Another reading objective that was added addressed vocabulary to support curriculum content at the fifth grade level, to ensure success in content area courses in the regular education curriculum. In study skills, three additional objectives were added. These objectives addressed the child's abilities to analyze a task into components, to independently identify and complete assignments and to use time effectively for preparing written assignments, consistent with her identified difficulties with the completion of assignments, particularly written work. The CSE also added two new objectives to the student's social/emotional goals. The goal for decision-making was broken down to smaller components, with an objective for discussion of decision-making strategies to be accomplished by December 1, 2003, leading to the next benchmark, that of formulating a plan for responsible decision-making by June 15, 2004. To address anxiety related to her self-esteem and frustrations concerning her academic performance, a goal was added for asking for teacher assistance when needed, encouraging self-advocacy. As in the March IEP, all of the additional goals and objectives were anchored by specific dates and progress was to be recorded by designated service providers. Based on the foregoing, I find the goals and objectives contained in both IEPs to be fully appropriate to meet the child's needs.

        After a review of both the March and the June IEPs, it is evident that the March IEP was adequate and appropriate, and that the additions made by the CSE in June were enhancements which resulted in an extremely thorough and complete individualized program and placement for the child. A review of the steps taken by the CSE to obtain information, its prompt response to new information which could affect IEP development, and the thorough and comprehensive consideration of all available information in the resulting document establishes that there is no basis to support the hearing officer's determination that the IEP was inadequate, or that the district failed to provide an appropriate program. Indeed, the record shows the resulting IEP to be a comprehensively designed program of personalized instruction and support services that is likely to produce progress, not regression (seeWeixel, 287 F.3d at 151; M.S., 231 F.3d at 103; Walczak, 142 F.3d at 130). Based on the record before me, I find that the CSE formulated an IEP that complied with the procedural requirements of the IDEA, and that the resulting IEP was reasonably calculated to enable the child to receive educational benefits (Rowley, 458 U.S. at 206-07; M.S., 231 F.3d 96). I therefore find that the district has met its burden of showing that it offered to provide an appropriate program to respondents' daughter.

        Having determined that the challenged IEP was adequate, petitioner has satisfied its obligations under the IDEA, and I need not reach the issue of whether or not Kildonan was an appropriate placement; the necessary inquiry is at an end (M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak., 142 F.3d at 134).1


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

1 I note that the hearing officer, in spite of the fact that he remanded the case to the CSE to correct any deficiencies in the IEP, nevertheless went on to award respondents prospective tuition for the upcoming 2003-04 school year for their daughter. Because in this case I find that the district did make a FAPE available to the child in a timely manner before the child was enrolled, the appropriateness of ordering prospective tuition prior to the student's enrollment in a private school for the school year in question is not at issue (see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.403[c]).

Topical Index

Annual Goals
District Appeal
Educational PlacementIntegrated Co-Teaching
Educational PlacementResource Room
Least Restrictive Environment (LRE)
Present Levels of Performance

1 I note that the hearing officer, in spite of the fact that he remanded the case to the CSE to correct any deficiencies in the IEP, nevertheless went on to award respondents prospective tuition for the upcoming 2003-04 school year for their daughter. Because in this case I find that the district did make a FAPE available to the child in a timely manner before the child was enrolled, the appropriateness of ordering prospective tuition prior to the student's enrollment in a private school for the school year in question is not at issue (see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.403[c]).