03-084

     Petitioners appeal from an impartial hearing officer's decision which found that the respondent, Clarkstown Central School District (Clarkstown) provided a free appropriate public education (FAPE) to their daughter for the 2002-03 school year. The appeal must be dismissed.

        Petitioners' daughter attended East Rampco School district for grades three through seven, where she was classified as learning disabled and provided with resource room services (seeExhibits D-30, p. 3; D-22, pp. 1-2). Standardized testing done in February 2000 revealed that the student had a Verbal IQ of 84 (Low Average), a Performance IQ of 98 (Average), and a Full Scale IQ of 90 (Average to Low Average) on the Wechsler Intelligence Scale for Children – III (WISC-III) (see Exhibit D-22, pp. 2-3). In September 2001, at the age of 13, the student moved to respondent's school district, where she was enrolled in the eighth grade at respondent's Felix Festa Middle School (Transcript pp. 315, 320). On November 18, 2001 respondent's Committee on Special Education (CSE) met and developed a new individualized education program (IEP) for the student which placed her in 15:1 self-contained classes for math, English, science, and social studies, with resource room and counseling services for the remainder of the school year (see Exhibits D-30, p. 3; D-22, pp.1-2; Transcript pp. 320-21). In March 2002, the parents requested that for the next school year, although their daughter resided in the Clarkstown South High School residential zone, that she be placed in the district's North High School so that she would be able to attend the same school as her friends from summer camp (Transcript pp. 340-43). The superintendent gave them permission to do this, on the condition that the parents were responsible for transportation (Exhibits D-3, D-47).

        In May 2002, the student was evaluated by the school psychologist, who administered several standardized tests, including both the Wide Range Assessment of Memory and Learning (WRAML) and the Woodcock-Johnson-III (WJ-III) Tests of Achievement (Exhibit D-21). From these tests the school psychologist concluded that the student's performance was in the average range in basic reading and writing skills, and in the low average range in reading comprehension, written expression and math reasoning skills (id.). The district also did an occupational therapy evaluation (Transcript p. 185), and later a speech/language evaluation on the student, which concluded the student's language levels were commensurate with her current levels of cognitive functioning and that she did not require speech/language therapy, but did need to remain in small, special education classes (Exhibits D-20, D-33).

        At about the same time, in May 2002, petitioners had an independent educational evaluation (IEE) done on their daughter which consisted of an extensive neuropsychological evaluation, where a battery of tests were administered, including the WISC-III, which showed the student had a Verbal IQ of 82 (Low Average), a Performance IQ of 91 (Average), and a Full Scale IQ of 85 (Low Average) (Exhibit D-22). The neuropsychologist concluded that the student continued to demonstrate a language disability which adversely affected her learning and reading comprehension, classroom participation, and oral and written expression (Exhibit D-22). He opined that the student's reading comprehension problems stemmed from "developmental dyslexia as well as a language disorder" (id. at 13). He also concluded that although she had difficulty at times with attention, a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) was not appropriate (id.). Her math skills were reportedly delayed by over four grade levels (id.). While chronologically between the eighth and ninth grade, most of her academic skills were found to be still at a fourth to fifth grade level (id. at 14). The neuropsychologist concluded that the student was "of average intelligence, whose academic functioning had been impaired by a language disability, dyslexia and a mathematics disorder" (id. at 14).¹ He also found her overall functioning was impaired by clinical levels of depression and anxiety as well as self esteem issues (id.). He recommended that she be placed in very small classes where she could receive individual instruction through repetition and a multi-sensory approach to learning (such as the Orton-Gillingham method), with complex subject matter broken down into smaller steps and reviewed frequently (id. at 15). He also recommended individual reading remediation, extra time to complete exams, help with study skills, speech/language therapy, extra help with math, an auditory processing evaluation, and individual and family therapy (id.).

        The CSE met on June 12, 2002, to develop the student's program for the 2002-03 school year (Exhibit D-30). The CSE developed an IEP that placed the student in respondent's Clarkstown North High School for the ninth grade, in 15:1 self-contained special education classes for English, math, science, and social studies (id.). The IEP included related services consisting of resource room services for 45 minutes, five times per week, and individual counseling services for 30 minutes once per week (id.).² Testing accommodations were also listed, providing additional time for test taking and directions read and explained (id.). Program modifications included preferential seating and frequent refocusing and redirection (id.). By letter dated July 31, 2002, petitioners rejected the proposed 2002-03 IEP, claiming their daughter required more services, and requested an impartial due process hearing (Exhibit D-42). An impartial hearing officer was assigned on August 5, 2002 (IHO Decision, p. 2); however, petitioners submitted a memo to the district stating that the parents would not be available for any "meetings/mediation" from August 16, 2002 until September 3, 2002 (Exhibit D-43). On September 12, 2002 the CSE sent a letter to the parents informing them that they had, at the parents' request, scheduled a new CSE meeting for September 23, 2002 to discuss and possibly revise the June 2002 IEP (Exhibit D-49); this meeting was later canceled by the parents (Exhibit D-52). In a letter to the district on September 26, 2002, petitioners notified the district that they would be putting their request for an impartial hearing "on hold" (Exhibit D-55, p. 2).

        The CSE met again on October 8, 2002 to review an assistive technology evaluation (Exhibit D-57), and the previously mentioned speech/language evaluation (Exhibit D-20). The IEE report supplied by the parents was also fully reviewed and analyzed, as reflected in the detailed minutes included in the resultant October 8, 2002 IEP (Exhibit D-64, p. 4). The CSE found the results from the IEE to be largely consistent with the CSE's recommended program of special education provided in small classes with repetition and multi-sensory instruction (id.). The CSE did note that the IEE suggested that the student's depression and anxiety were impacting her learning, and although already providing individual counseling as a related service on the IEP, the CSE added social/emotional goals and objectives and agreed to have the student reevaluated by the school psychologist (id.). The CSE also found that additional speech/language therapy was not required, consistent with the speech/language report (Exhibit 20), but it added various additional supports and modifications to the student's IEP, consistent with the assistive technology evaluation, including access to spelling device, Franklin dictionary with speech, access to word processor, Alpha Smart, books on tape, and Read and Write software (Exhibit D-64, p. 3). In addition, at the parents' request due to scheduling conflicts with resource room services, the CSE agreed to provide the student with direct 1:5 consultant teacher services, three times per week for 45 minutes (Exhibit D-64; Transcript p. 1248). The CSE reminded the parents that the student could also attend the "Homework Center" at school, where the teacher was trained in the Orton-Gillingham method of instruction preferred by the parents (Exhibit D-64, p. 4). At the parents' request, an additional modification was added to the IEP exempting the student from reading out loud in class (Exhibit D-64, p. 4). The October IEP also added specific goals and objectives for transition planning (id. at p. 6). The CSE offered to reconvene after the school psychologist's new psychiatric evaluation was completed to review the student's goals and objectives again (id at p. 4), but the parents later canceled the evaluation (Exhibit D-76), and by letter dated October 30, 2002, they informed the district that they wished to go forward with the impartial hearing (Exhibits D-79, D-80).

        The hearing began on December 5, 2002, and was held on ten different days over the course of five months, concluding on May 7, 2003. The resultant record contained a transcript of almost 2000 pages consisting of testimony from nine different witnesses, and included almost 150 exhibits. Two months later, on July 22, 2003, the hearing officer rendered a voluminous, detailed, 127-page decision,³ independently examining each of petitioners' 17 claims. The hearing officer dismissed the following 13 claims, finding they had no merit: (1) the parents' claim that they were not allowed to participate fully in the June 2002 CSE meeting that they attended, (2) the parents' claim that the district was required to provide transportation to a public school of their choice, other than their residential school, (3) the parents' claim that the CSE failed to give them written notice of its refusal to make the parents' desired changes in the student's program prior to the CSE meeting, (4) the parents' claim that the district failed to consider the results of the IEE as the most recent evaluation of the student at the June CSE meeting, (5) the parents' claim that additional help in math volunteered to the student by the school psychologist was a violation of the procedures because he was not certified to teach mathematics, (6) the parents' claim that the transition plan was inadequate, (7) the parents' claim that the accommodations in the IEP were allegedly not provided, (8) the parents' claim for speech/language therapy, (9) the parents' claim for an extended day program, even though the student is already able to attend after school help two hours per day, (10) the parents' claim for remediation classes in reading and math, even though the student is already enrolled in special education courses for these subjects, (11) the parents' claim that the student's teachers be trained in either the Lindamood-Bell or Orton-Gillingham method of instruction,⁴ even though all of the student's current instructors are already using multimodal methods of instruction, (12) the parents' claim for reimbursement for costs related to the hearing, such as expert witnesses, and (13) the parents' claim for reimbursement for the privately obtained IEE.⁵ The hearing officer did find that four of petitioners' alleged procedural "inadequacies" had occurred: (1) the hearing was not completed and a decision was not rendered within 45 days of the request for a hearing, (2) the regular education teacher member at the CSE meeting was not one of the student's teachers, (3) the annual goals and objectives on the IEP were not sufficiently measurable or tailored to the student's needs, and (4) the progress reports sent to the parents were not directly related to the student's progress toward her IEP goals; however, the hearing officer found that none of these four violations resulted in a denial of FAPE to the student for the 2002-03 school year. He ordered the district to meet and work with the parents to create more specifically tailored and measurable goals, objectives, and benchmarks for the student for the following 2003-04 school year's IEP, and to ensure that the parents receive at least four quarterly progress reports in 2003-04 that are more directly related to the student's progress toward her IEP goals and objectives.

        Petitioners appealed the hearing officer's decision, submitting to the State Review Officer a pro se petition consisting of 127 pages, together with a 47-page "appendix," a binder of 25 additional exhibits not previously submitted, and a computer software disc consisting of yet additional information with hyperlinks to the internet, all of which they requested be considered in addition to the already expansive record previously described. In sum, petitioners challenge each of the hearing officer's 17 findings, and request additional relief raised at the hearing but not addressed by the hearing officer relating to compensatory education for the summer of 2002 and 2003, and various declaratory orders mainly directing the CSE to comply with the Individuals with Disabilities Education Act (IDEA) when developing the IEP for the 2003-04 school year.

        After reviewing the record and the hearing officer's 127-page decision, I find that the hearing officer applied the proper legal analysis in determining whether the student received a FAPE (see Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 [1982]).⁶ He applied the correct standard to each of petitioners' claimed procedural inadequacies, namely, that not all procedural violations require a finding of a denial of FAPE; however, those that result in the loss of educational opportunity, or seriously infringe on the parents' opportunity to participate in the IEP formulation process, clearly result in a denial of FAPE (Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied, 533 U.S. 950 [2001]; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; Evans v. Bd. of Education of Rhinebeck Cent. Sch. Dist., 930 F.Supp. 83, at 93-94 [S.D.N.Y. 1996]; W.A. v. Pascarella, 153 F.Supp.2d 144, 153 [D.Conn. 2001]; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000]; see IHO Decision pp. 92-3). He also properly examined the record and determined that the student's program had resulted in some identifiable progress (Walczak v. Bd. of Educ., 142 F.3d 119, 130 [2d Cir. 1998]; see IHO Decision pp. 121, 122-23, 126)⁷. He also applied the correct standard in that a district is not obligated under the IDEA to maximize the student's potential, or to provide everything that loving parents would ideally desire, but is obligated to provide meaningful access to education so as to allow more than merely trivial advancement (Rowley, 458 U.S. at 197; Walczak, 142 F.3d at 133, 124; Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989]; see IHO Decision pp. 117-19). The decision shows that the hearing officer carefully considered all of the testimony and exhibits from both parties, giving special attention to the IEE obtained by the parents. The record amply supports the hearing officer's conclusion that the student was provided with a program that was appropriate to her special education needs. I also note that the hearing officer went the extra step at the hearing to obtain first-hand observations of the student's abilities through demonstrations, i.e, having the student read aloud from her class's version of "Romeo and Juliet" (IHO decision p. 74 n.6, noting she did "very well"), requesting and examining a sample of the student's handwriting from an English assignment (IHO decision p. 77 n.7, noting it was "written neatly, mindfully and in a well organized fashion"), and having the student read aloud parts of a newspaper article (IHO decision, p. 78 n.8, noting that she read with "great fluency", but "comprehension was lacking"). In short, based upon my review of the entire hearing record, I find that the hearing was conducted in a manner consistent with the requirements of due process and that there is no need to modify the determination of the hearing officer (34 C.F.R. § 300.510[b][2]; Education Law § 4404[2]). I therefore adopt the findings of fact and conclusions of law of the hearing officer, with the following clarifications (see Application of the Bd. of Educ. of the South Colonie Cent. Sch. Dist., Appeal No. 03-085; Application of a Child with a Disability, Appeal No. 02-096).

        First, although the hearing officer concluded that any violation of the 45-day rule in completing the hearing (34 C.F.R. §300.511[a]; 8 NYCRR 200.5[i][4]) did not result in a denial of FAPE, I note that the record shows that petitioners' original request for a hearing was on July 31, 2002, which would require that a decision be rendered by September 14, 2002, instead of May 7, 2003. However, the record also shows the district appointed a hearing officer within five days of the request, and that it was petitioners who were requesting postponements in August 2002 and who eventually, in late September 2002, asked that their request be put "on hold" (Exhibits D-79, D-80). Once petitioners renewed their request for a hearing on October 30, 2002, the hearing officer noted that the hearing began "promptly after the parent obtained an advocate" (IHO decision, p. 16 n.1). Thereafter, any extensions during the hearing were by request of the parties due to scheduling conflicts with the parties and their witnesses, which the hearing officer accommodated. Under the regulations, exceptions to the 45-day rule may be granted upon request of either party (34 C.F.R. §300.511[a][1]; 8 NYCRR 200.5[i][4][i]). Under the circumstances, I find that the delays in the hearing were requested and granted as exceptions as allowed by regulation, and no procedural violation of the 45-day rule occurred; however, I strongly remind the hearing officer and the parties of the regulation's purpose to whenever possible ensure a resolution to a due process request concerning a child's educational program within the 45-day time period allowed by law.

        The hearing officer also found that any "procedural inadequacies" in the qualifications of the regular education teacher who attended the CSE meetings did not amount to a denial of FAPE in this case. I agree, and note for clarification that the IDEA and state and federal regulations provide that the CSE must include "at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment)" (20 U.S.C. § 1414[d][1][B][ii]; see 34 C.F.R. § 300.344[a][2]; 8 NYCRR 200.3[a][1][ii]). In its interpretation of the regulations, the U.S. Department of Education has indicated that "the regular education teacher who serves as a member of a child's IEP team should be a teacher who is, or may be, responsible for implementing a portion of the IEP" (see 34 C.F.R. Part 300, Appendix A, Section IV, Question 26). Although a board of education cannot always be expected to know who the student's regular education teacher will be prior to the CSE meeting, it should nevertheless have sufficient information about the student to designate a regular education teacher who is not only appropriately certified to teach the student, but is also teaching in one of the programs which might be appropriate for the student (Application of a Child with a Disability, Appeal No. 01-105; Application of a Child with a Disability, Appeal No. 01-083).

        Initially I note that in the instant case, the parents and the CSE were in agreement that the student was to be placed in special education classes for all of her core academic subjects and was not going to be placed in regular education classes (Transcript pp. 319-321, 1250-51, 1254-55; see Exhibits D-30, D-64). Nevertheless, I note that the record shows that the student was enrolled in an American Sign Language that was a regular education class (Transcript pp. 1444, 1437); hence petitioners argue that the American Sign Language teacher should have been present at the June CSE meeting representing the student's regular education teacher member, and that her absence requires a finding of a denial of FAPE. Like the hearing officer, I find this argument unpersuasive, and note the following reasons. First, although the student was not listed as enrolled in any regular education courses on the IEP, the district did have a regular education teacher present at both the June 12, 2002 CSE meeting and the October 8, 2002 CSE meeting who was certified to teach regular education, who was teaching in the school the student was attending, and who was available at the meeting to give input on the student's ability to function in a regular education classroom (see Exhibits D-30, D-64). Second, even though the American Sign Language class included some regular education students, I note that, upon closer examination, this class was taught by a certified special education teacher (Transcript p. 1436) and also included a teaching assistant who was available to assist the student if she required additional help (Transcript p. 1453). Finally, the American Sign Language teacher was called as a witness and testified that she was aware of and was providing the student with the accommodations in the student's IEP (Transcript p. 1443), and that the student was doing wonderfully in the class and was in fact one of the top students (Transcript p. 1437). Hence, I find that any deviation from the requirements of this regulation by not having the student's American Sign Language teacher present at the CSE meeting as the regular education teacher representative did not amount to or result in a denial of FAPE for the student, since her needs were adequately provided for in that class by the special education teacher and the aide, and she was able to achieve meaningful educational benefits from the course (Transcript p. 1444).

        Next, the hearing officer found that there were inadequacies in the goals and objectives in the student's IEP, but that they did not amount to a denial of FAPE in this case. I agree that the goals and objectives did not deny the student a FAPE, but note for clarification that, in my examination of the record and the IEP, contrary to the hearing officer's finding, I find that the goals and objectives contained in the 2002-03 IEP were sufficiently measurable and tailored to meet the student's individual needs. The regulations require that each student's IEP include "A statement of measurable annual goals, including benchmarks or short-term objectives, related to ---(i) meeting the child's needs that result from the child's disability to enable the child to be involved in and progress in the general curriculum…; and (ii) meeting each of the child's other educational needs that result from the child's disability" (34 C.F.R. § 300.347[a][2]). In its interpretation of this regulation, the U.S. Department of Education explains that "a public agency is not required to include in an IEP annual goals that relate to areas of the general curriculum in which the child's disability does not affect the child's ability to be involved in and progress in the general curriculum. If a child with a disability needs only modifications or accommodations in order to progress in an area of the general curriculum, the IEP does not need to include a goal for that area; however, the IEP would need to specify those modifications or accommodations" (34 C.F.R. Part 300, Appendix A, Section I, Question 4).

        In the instant case, I find that the goals and objectives are behaviorally stated and measurable, and scheduled to be achieved in increments tied to periodic marking periods during the school year. The goals and objectives flow directly from present levels of performance as identified in standardized test results which are broken down into subsets and reported in full on page two of the IEP, indicating a reasonable baseline for the student (Exhibits D-30, D-64). For example, the benchmark involving the decoding of multisyllabic words flows from the student's identified need to improve decoding skills, as reflected in her recent test scores from the W-J III and the Wechsler Individual Achievement Test (WIAT) (id.). The hearing officer claimed that the goals and objectives on the IEP were not broken down into measurable increments; however, each objective is tied to a numeric percentage mastery level as reflected in classroom tests, and tied to a specific marking period (id.) The hearing officer faulted the fact that specific science and social studies goals were lacking; however, the student's needs as reflected in standardized test scores are related to reading and writing skills, and these areas are contained in the goals and objectives of the IEP and were being implemented in all content area classes, as verified by the testimony of the student's teachers (Transcript pp. 216, 1333-34, 1341-42, 1349, 1442, 1471-72, 1482-83, 1488, 1495, 1497-98, 1513, 1515-16, 1520, 1525-26, 1527). The IEP also included a wide variety of modifications, accommodations, and supports that were particularly comprehensive and individualized to meet the student's needs as derived directly from the results of the Assistive Technology Evaluation that the district performed on the student (Exhibit D-57). In addition, the testimony from all of the student's teachers demonstrated that the teachers were following the IEP, and that the student was performing near the top of her classes, progressing and deriving meaningful educational benefits from the program (Transcript pp. 1260, 1337-38, 1342, 1345-46, 1350, 1437, 1444, 1472, 1474,-75, 1484, 1522, 1532-33, 1534; see Exhibit D-93). Indeed, the student's first quarter report card on November 19, 2002, showed that the student had received "A"s in all six of her subjects (Exhibit D-93). In sum, I find that the goals and objectives on the June IEP were sufficiently tailored to meet the individual needs of the student. Therefore, although I disagree with the hearing officer's findings of fact concerning the adequacy of the goals and objectives, I agree with his legal conclusion that the formulation of the goals and objectives on the student's 2002-03 IEP did not deny the student a FAPE.

        Lastly, I agree with the hearing officer's finding that the progress reports given to the parents were not geared to the specific goals and objectives of the student's IEP, and, while not resulting in a denial of FAPE in this case, I join the hearing officer in strongly instructing the district to comply with the directive of the regulations concerning the content of these progress reports. Mere report cards with test grades and general teachers' comments such as "good work," "doing fine," and "achieved excellent grades on a short story test and vocabulary tests" are insufficient (Exhibit P, pp. 211-232). The regulations specify that the parents "will be regularly informed …of—[t]heir child's progress toward the annual goals; and [t]he extent to which that progress is sufficient to enable the child to achieve the goals by the end of the year" (34 C.F.R. § 300.347[a][7][ii][A], [B]). The comments to this regulation instruct that the parents of students with disabilities must be informed of their children's progress at least as often as parents of nondisabled students are informed of their children's progress, and must include the specific information relating to the IEP goals and objectives as required under 34 C.F.R. § 300.347[a][7][ii][A] and [B] (34 C.F.R. Part 300, Appendix A, Section IV, Question 10). The U.S. Department of Education suggests one way of complying with this regulation is to provide both the grading information normally provided in all students' periodic report cards plus the additional information concerning the student's progress toward his or her IEP goals and objectives in the progress report of a child with a disability (id.). Since petitioners' daughter's reports contained only the former information and nothing specific to the student's IEP goals and objectives, I join the hearing officer in directing the district to immediately begin compliance with this regulation by providing petitioners with meaningful progress reports that are directly related to their child's attainment of her IEP goals and objectives at least as often as at the end of each quarterly marking period.

        As far as petitioners' additional claims for relief raised on appeal that were not directly addressed by the hearing officer, after a careful review of the record, I find that they are without merit. To the extent that petitioners request declaratory orders or ask that the 2003-04 IEP be developed in accordance with the IDEA, I remind both petitioners and respondent that respondent is already under an ongoing obligation by law to develop a program that complies with the procedural and substantive requirements of the IDEA, and, should respondent fail to do so, petitioners are free to challenge the 2003-04 IEP after it is developed with their full participation and input carefully considered.

THE APPEAL IS DISMISSED.