03-082

       Petitioner appeals from an impartial hearing officer's decision finding her daughter's recommended placement appropriate and denying her request to be reimbursed for the cost of her daughter's tuition at Sappo School (Sappo) for the 2002-03 school year. The appeal must be dismissed.

        Before reaching the merits of this appeal, I must address the procedural issue of respondent's failure to answer the petition. State regulations require the respondent to answer the petition within 10 days after the petition has been served upon respondent (8 NYCRR 279.5). I will examine the entire record (34 C.F.R. § 300.510[b][2][i]), and make an independent decision (20 U.S.C. § 1415[g]), even though respondent has failed to answer the petition (Arlington Central Sch. Dist. v. State Review Officer, 293 A.D.2d 671 [2d Dept 2002], Application of the Bd. of Educ., Appeal No. 02-039).

        At the time of the hearing, petitioner's daughter was approximately twelve years old, and was in the seventh grade at Sappo, a non-public school that has not been approved by the Commissioner of Education to contract with school districts for the education of students with disabilities. She has been diagnosed with attention deficit and hyperactivity disorder (ADHD), combined sleep terror disorder, and developmental disorder (Exhibit I). In addition to having undergone open-heart surgery before the age of two (Transcript p. 482), she has been more recently diagnosed with epilepsy (Exhibits L, M, N).

        As early as 1995, the student was described as emotionally labile with low frustration tolerance and limited coping skills (Exhibit G). With the addition of physical aggression (Exhibits J, X, 21), non-compliance and opposition (Exhibit K, Z), these behaviors continued in the classroom (Exhibits J, K, L, N, S, X, 21) and were elicited by academic and non-academic demands (Exhibits S, X, 21). She has received counseling and has been treated with multiple medications for these problems (Exhibits I, J, K, M, X, 21). The student has been classified as other health impaired (OHI) by respondent's committee on special education (CSE). There is no dispute about the student's classification.

        The results of a December 2000 administration of the Wechsler Intelligence Scale for Children-III (WISC-III) yielded a full scale IQ score of 71 (4th percentile), a score in the borderline range of cognitive functioning. The evaluator considered the WISC-III results to be minimal estimates of cognitive functioning due to the student's frequent non-compliant behavior during testing (Exhibit L). In December 2000, when the student was nine years old, her standard score of 71 (3rd percentile) on the Beery Test of Visual Motor Integration (VMI) indicated performance at an age equivalent of five years six months. The Behavior Assessment Scale for Children-Teacher Rating Scale (BASC-TRS-C) completed by her teacher in December 200 resulted in clinically significant rankings for anxiety, depression (99th percentile), aggression, learning problems, withdrawal (97th percentile), somatization (95th percentile), adaptability (3rd percentile), leadership (13th percentile) and study skills (10th percentile) (Exhibit L). In sum, evaluation results indicated that the student was not able to function adequately in her academic environment [in a 12:1+1 special program within the district school (Exhibits X, 21)] and a more restrictive educational setting in a therapeutic environment such as that offered by the Board of Cooperative Educational Services Learning Center (BOCES) was recommended (Exhibit L).

        After spending kindergarten through fourth grade in both inclusion and special classes within the district, the student's needs escalated to the level wherein programs physically located within the district were no longer appropriate. The CSE's individualized education program (IEP) for the 2001-02 school year recommended that the student be enrolled in a ten-month self-contained class with related services for fifth grade at BOCES (Exhibit 3). Petitioner was dissatisfied with this recommendation and unilaterally placed her daughter at Sappo (Transcript pp. 497, 511). A settlement agreement was reached between petitioner and respondent for the 2001-02 school year and is not an issue addressed herein (Transcript p. 510).

        The CSE met on August 28, 2003 to create the 2002-03 IEP. The 2002-03 IEP recommended that the student be enrolled in sixth grade in an 8:1+1 special class for a ten-month program at BOCES. In addition, the CSE recommended that she receive individual speech services and individual occupational therapy, each twice a week for 30 minute sessions. Group counseling was recommended for 30 minute sessions twice a week and individual counseling was recommended for 30 minutes once a week. On the student's IEP, the CSE recommended behavioral modifications that included the use of simple classroom rules, self-monitoring strategies, and positive reinforcement through praise. In addition to preferential seating and clarification of assignments, extended testing periods and the revision and simplification of test directions were recommended. The IEP also included the provision of door-to-door transportation with the assistance of a matron (Exhibit C).

        Petitioner did not accept the CSE's recommended educational program. By letter dated February 4, 2003, she informed respondent's Director of Special Education of her dissatisfaction with the CSE's recommendations for the 2002-03 school year, and requested an impartial hearing (Exhibit A). The hearing commenced on March 20, 2003, and concluded on May 12, 2003.

        In a decision dated August 22, 2003, the hearing officer found that the lack of the parent's involvement in the August 28, 2003 CSE meeting did not render that meeting or the 2002-03 IEP invalid because multiple, documented CSE scheduling attempts were made (8 NYCRR 200.5[d][4]) and the meeting had to be scheduled expeditiously in order to ensure the timely provision of a free appropriate public education (FAPE) to the child (Application of a Child with a Disability, Appeal No. 98-53). The hearing officer found respondent to have met the requirements to provide the parents written notice of the IEP meeting at least five days prior to the meeting (8 NYCRR 200.5[c]) and to provide the student with an IEP at the beginning of the school year.

        The hearing officer further found that the district did not "usurp" the CSE by submitting an application to BOCES prior to the planned June 25, 2003 CSE meeting. He found that the CSE functioned under the auspices of the district, and as such, the district could appropriately submit an application for an educational program for purposes of potential placement. The mere submission of the application was not binding; it was to be used as a planning tool for placement eligibility assessment (Appeal of a Child with a Disability, 28 Ed. Dept. Rep. 323 [1989]).

        The hearing officer further found that the IEP was based on relevant information that provided a longitudinal view of the student's needs which included recent data from Sappo, and personal and professional observations. Multiple recent academic and social evaluations used for assessment appropriately included but were not limited to the Clinical Evaluation of Language of Fundamentals-III (CELF-III), Goldman-Fristoe Test of Articulation, Visual Motor Integration Test, and IQ testing (Exhibit C). The hearing officer found that the IEP recommending BOCES placement was designed to meet the student's unique needs and provide her with a FAPE. The appropriateness of the Sappo placement was not reached by the hearing officer while equitable considerations were found to favor respondent.

        Petitioner asserts that the educational program recommended by respondent's CSE did not satisfy the requirements of federal and state law because of an invalidly composed CSE meeting, improper notice, inappropriate BOCES application procedures, improper hearing procedures, and an invalid IEP. I disagree.

        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 (School Comm. of Burlington v. Department of Educ. of Mass., 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 (Application of a Child with a Disability, Appeal No. 02-006; Application of a Child with a Disability, Appeal No. 01-096; Matter of a Handicapped Child, 22 Ed. Dept. Rep. 487).

        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 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. of the Hendrick Hudson Cent. Sch. Dist. v Rowley, 458 U.S. 176, 206, 207 [1982]). 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]).

        Petitioner asserts that the IEP is invalid because she did not participate in the CSE meeting that produced the program. The record revealed that petitioner did not attend this meeting. State and federal regulations require the CSE to include parent members (20 U.S.C. § 1414[d][1][B][i]; 34 C.F.R. § 300.344[a][1]; 8 NYCRR 200.3[c][2]). However, a CSE may meet without parent members under certain circumstances. Federal regulations permit a CSE meeting to take place without parent members if the district documents a record of its unsuccessful attempts to arrange a mutually agreed upon meeting, time, and location. Detailed records of successful or failed telephone contacts with concomitant results, or copies of correspondence sent to and received from the parents suffice to document the district's attempt to schedule a mutually agreed upon time (34 C.F.R. § 300.345[d]).

        The notice provided and attempts at scheduling the CSE meeting in the instant case were consistent with the Commissioner's regulations (8 NYCRR 200.5[c]) and appropriately documented (Exhibits BB, CC). I note that petitioner also participated in the informal June 25, 2003 meeting that produced a draft of what was to become the final IEP, and was therefore, involved with and aware of the contents of the subsequently proposed IEP. Had the June 25, 2003 meeting been attended by an additional parent member, the IEP draft produced therefrom would have been the finalized IEP (Transcript pp. 97-99). This would have obviated the need for the August 28, 2003 meeting at issue. Based on a review of the facts, I find petitioner's claim that the IEP was improperly formulated to be without merit.

        Further, petitioner asserts that the IEP was not implemented in a timely manner. The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction (20 U.S.C. § 1414[d][2][A]; 34 C.F.R. § 300.342[a]). The IEP must be in effect before special education and related services are provided (34 C.F.R. § 300.342[b][1][i]). The school district must provide a copy of the IEP to the parent, without the need for a request (34 C.F.R. § 300.345[f]; 64 Fed. Reg. 12587 [comment]; 8 NYCRR 200.4[e][3]). Here the IEP was in effect at the beginning of the school year and petitioner was afforded a copy, consistent with the regulations. Accordingly, I find petitioner's claim to be without merit.

        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. 01-095; Application of a Child with a Disability, 01-109; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Federal regulation requires 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 December 2000, a psychological evaluation (aforementioned WISC-III, VMI, BASC-TRS-C, Exhibit L), an educational progress report (Exhibit N) and an occupational therapy progress report (Exhibit N) were generated for the student's triennial review. The December 2000 educational progress report completed by the student's teacher indicated that the student was performing at the third grade level in reading, language arts and math, and at the second grade level in writing. The teacher reported minimal progress in academic areas, due in part to the student's noncompliance and episodes of aggression when faced with the demands of academic tasks (Exhibit N). The May 3, 2001 independent educational evaluation of the student's reading abilities yielded standard (and grade equivalent) scores of 100 (4.7) for letter-word identification and 95 (3.9) for passage comprehension on the Woodcock-Johnson Tests of Educational Achievement–Revised (Exhibit P). At this time, the Peabody Picture Vocabulary Test yielded a standard score of 89, with an approximate age equivalent of eight years old. The February 14, 2000 progress report from the student's private psychiatrist noted that the student's "fear of failure renders her virtually paralyzed when faced with tasks, even if they are within her capacity" (Exhibit M).

        In the June 18, 2001 progress report, the student's educational team, consisting of her special education teacher, speech-language therapist and occupational therapist, recommended placement in a more restrictive environment for the 2001-02 school year. Despite significant efforts to develop a successful behavior intervention plan for the student, her behaviors continued to interfere with academic progress and her episodes of physical aggression created an unsafe situation in the classroom (Exhibit 21, X). At the student's June 19, 2001 annual review, the CSE recommended that she be placed in a fifth grade 8:1+1, self-contained class at a BOCES program for students with behavioral and psychiatric difficulties (Transcript pp. 57-58, 254). Petitioner rejected the recommended placement and, instead, placed her daughter at Sappo for the 2001-02 school year.

        An informal assessment of the student's reading ability, using the Basic Reading Inventory, was conducted at Sappo on September 7, 2001. This assessment indicated that the student could independently read words in isolation at the third grade level and could independently read words in context at the first grade level. Her comprehension of passages read aloud was reported to be independent at the fourth grade level, but at the instructional and frustration level for second and third grade passages (Exhibit 9). This inconsistency was again noted when the Basic Reading Inventory was performed at the end of the 2001-02 school year, when her reading of words in isolation was at the sixth grade level and her independent reading of words in context was at the fourth grade level. Comprehension of passages read aloud remained at the fourth grade level, but her comprehension of passages read silently was reported to be at the first grade level (Exhibits 9, P).

        The February 20, 2002 occupational therapy progress report, completed when the student was ten years, four months old, reported visual perceptual and visual motor functioning at the five year, six month level, and noted that the student demonstrated difficulty with transition from classroom to therapy room. She exhibited low frustration tolerance by turning her head away from the therapist and placing her head on her folded arms on the table (Exhibit Z). Approximately one month later, the speech-language progress report noted receptive language at the seventh percentile with a standard score of 78, and expressive language at the 21st percentile with a standard score of 88, as measured by the CELF-III. This evaluation yielded a total language age equivalent of seven years, two months (Exhibit Y).

        In preparation for the student's annual review, the district's school psychologist observed the student at Sappo on May 22, 2002. Her observation included a discussion with the student's resource room teacher, who reported that improvements had been observed in the student's interactions with peers and adults, and that she did not tantrum as often when frustrated (Exhibit Q). The June 21, 2002 social progress report noted that the student was more willing to accept criticism and demonstrated a great deal of effort to correct unacceptable behavior. This report recommended continued work on reducing unacceptable behaviors including "shouting at teachers and peers, receiving criticism without…arguing, engaging in non-compliance behaviors when feeling overwhelmed, and other behaviors such as, hitting, spitting, aggression, throwing books, etc." (Exhibit 9).

        Additionally, the record indicated that the CSE had access to Sappo academic and behavioral progress reports, report cards, student writing samples and the May 7, 2002 Basic Reading Inventory (Transcript pp. 87-88, 368-69, 396; Exhibits Y, Z, 9). The Sappo resource room teacher, who participated at both the June and August 2003 meetings, testified that she reported on the student's current academic and social levels at both meetings (Transcript pp. 368, 369, 396). Affirming this part of the record, the CSE chair testified that the Sappo resource room teacher provided information about the student's current functioning (Transcript pp. 65-66) and that the CSE relied upon these teacher comments when developing the IEP (Transcript p. 87). Further, the CSE had access to the April 2002 observation report from the school psychologist, who had discussed the student's current performance levels with Sappo teachers, and who was present at both CSE meetings (Exhibit Q, Transcript p. 161). Therefore, I find that sufficient evaluations, assessments, reports and observations were available to the CSE at the time of the IEP development.

        An IEP must 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]). 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]).

        In the instant case, the results of September 7, 2001 and May 7, 2002 Basic Reading Inventory indicated that the student's academic performance at Sappo was as inconsistent as it was in district programs. The goals and objectives for reading and language arts directly reflected recommendations made by the classroom teacher who completed the May 7, 2002 Basic Reading Inventory. These recommendations identified the student's need to improve her skills in making inferences, recall facts, increase vocabulary, and work with graphic organizers.

        The IEP also identified the student's need for sequentially presented learning materials to avoid frustration. An example of one of her study skills objectives was to demonstrate an understanding of different types of sequences, such as chronological order and story order. A language arts objective corresponding to the study skills objective addressed writing a sequential story using transitional words, such as first, next, then and last, with 80% accuracy, as measured by teacher observation and teacher-made tests.

        Math goals and objectives were consistent with Sappo teacher testimony regarding the student's levels. The student was described as performing at approximately the third grade level in math. At Sappo, she was learning simple multiplication and fractions, skills usually addressed at the third grade level. Objectives for math addressed multiplication, fractions, and other third grade skills. For example, the IEP recommended a goal to master fractions, with two appropriate objectives, both to be achieved at 80% accuracy, as measured by the Key Math assessment.

        IEP goals and objectives for math and language arts were at the student's current level and emphasized teacher support through reading aloud, as well as through the use of hands-on techniques such as study cards, maps, time lines and charts. Because the student needed significant teacher support to perform in class and complete class work in both math and language arts, the IEP recommended an 8:1+1 class size placement. Modifications included simplified directions, the reteaching of concepts, and clarification of assignments. The use of models and concrete materials to facilitate learning was also recommended. Accordingly, I find measurable goals with short-term objectives designed to address the student's needs (34 C.F.R. § 300.347[a][2], 8 NYCRR 200.4[d][2][iii]).

        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]).

        The IEP recommended many modifications and accommodations to address the student's needs. The student needed full time special education with a small class size and group instruction,intensive environmental modification, and teacher reinforcement to stay on task. She also required individualized instruction in all content areas, with frequent reinforcement and encouragement to work independently. To address these needs, the IEP recommended an 8:1+1 self-contained placement at BOCES.

        Petitioner's daughter had test-taking anxiety, which caused her to become easily frustrated during testing. This led to her refusal to complete tests. The IEP recommended extended time for test taking, revision and simplification of directions, and flexible scheduling. The IEP stated goals for study and organization skills, and listed objectives that emphasized the establishment of routines and organizational systems to facilitate independence.

        Classroom modifications included the use of self-monitoring strategies. Petitioner's daughter needed to expand her receptive and expressive vocabulary. The IEP recommended speech-language therapy, with goals and objectives to address both receptive and expressive language needs. Goals and objectives for pragmatic language and voice modulation also addressed her social and emotional needs.

        To improve attending skills when visual distractions are present, the IEP referred to medication to address the student's ADHD behaviors, preferential seating, and small class size. The IEP also noted the student's seizure disorder and referred to the student health file for additional information, maintaining confidentiality of medical information. 

        To develop a more positive attitude about others, be more tolerant of criticism and express wants and needs more effectively, the IEP recommended counseling. It listed a goal with objectives for expressing feelings and appropriately asking for help. Similarly, to address the need to display appropriate social behavior, the IEP recommended a BOCES program with social skills components (Transcript pp. 259, 263-64). The counseling goal included objectives for appropriate behavioral responses in a variety of settings, and the speech-language goal included objectives for appropriate social language. In sum, the student needed a series of modifications in order to achieve academic success and the IEP recommended appropriate accommodations commensurate with her needs.

        Based upon a review of the record, I find that the proposed IEP is reasonably calculated to provide educational benefit and that the recommended program and placement are appropriate for this child. 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.

        I find petitioner's remaining contentions to be without merit.

THE APPEAL IS DISMISSED.