03-102

         Petitioners appeal from the decision of an impartial hearing officer, which denied reimbursement for the cost of their daughter's tuition and transportation expenses during the 2002-03 school year at the Windward School (Windward) located in White Plains, New York (Exhibits T, R). The district cross-appeals from the hearing officer's determination that it must reimburse petitioners for the cost of providing their daughter with the Lindamood-Bell reading program during the 2001-02 school year, upon submitted proof of participation in the program. The appeal must be sustained in part. The cross-appeal must be sustained.

        Petitioners' daughter was 11 years old and in the fifth grade at Windward when the hearing began on March 17, 2003. She has average cognitive ability, and is described by her teachers as very social and engaging, with high self-esteem (Exhibit 35). She has memory deficits, however, and processing disorders that have interfered her acquisition of reading skills (Exhibit 37). On March 14, 2002, she was classified as having a learning disability (LD) by respondent's Committee on Special Education (CSE) and that classification is not in dispute. Windward has not been approved by the New York State Education Department as a school with which public school districts may contract to serve students with disabilities.

        The student was first referred to respondent's CSE when she was in kindergarten, due to difficulties in articulation and language development (Exhibit 51). The CSE classified her as speech impaired, and recommended a program of speech-language therapy (SLT) for 30-minute sessions three times per six-day cycle and resource room for 45 minutes once per six-day cycle (Exhibit 42). When the student entered first grade, the CSE increased her resource room services from one to three times per cycle (Exhibit F; Transcript p. 7). A central auditory processing evaluation (CAPE) administered in March 1999 when she was in first grade indicated that the student had difficulties with auditory integration, organization/sequencing, and decoding, related to an underlying sound-symbol association deficit (Exhibits 2, 3). The evaluator recommended continued speech therapy and resource room services, and mentioned commercial programs such as Earobics that reinforce phonemic awareness. The record indicates that the student's parents had her begin psychotherapy on a weekly basis at the end of first grade, in connection with her learning problems (Exhibit J). A letter from her psychiatrist indicates that she was prescribed a stimulant for poor concentration and distractibility (Exhibit J).

        In second grade, the CSE added testing modifications to the student's individualized education program (IEP) (Exhibit G). Achievement testing at the beginning of the school year indicated weaknesses in decoding skills, reading comprehension and spelling (Exhibit 39). Her math skills were also below average (Exhibit 39). The record indicates that the student received instruction using the Orton-Gillingham (O-G) methodology in the resource room that year, and that this instruction was reinforced in her reading class (Exhibit 5). In March 2000, the CSE increased resource room services to four times per cycle and, at the parents' request, reduced SLT to once a week (Exhibit H). Her parents were providing private speech therapy twice a week, vision therapy twice a week, and a reading tutor once a week (Exhibit 44).

        For the student's third grade year, the CSE increased resource room services to five times per cycle (Exhibit H). In addition, the student was placed in a remedial reading group (Transcript p. 7). At her parents' request, SLT was eliminated (Exhibit H). At the end of third grade, the student's scores were below average on standardized tests of basic reading and mathematics, and slightly below average in writing skills. Her resource room teacher noted that the student had begun to progress in writing skills (Exhibits 41, D), but she was concerned about the student's retention and decoding skills, and suggested an increase in support services for the next year. Her third grade report card states that "though [the student] has made progress, she needs to continue working on basic reading skills and writing skills." It also reports that she enjoyed science and social studies and received Bs in both, and did very well in music, art and physical education (Exhibit 49).

        When the student was in fourth grade year during the 2001-02 school year, the CSE recommended that she receive resource room services six times in a six-day cycle, additional test modifications and a remedial reading general education class three times per week (Exhibit I). In January 2002, the student's parents unilaterally removed her from school for part of each day in order to provide her with the Lindamood-Bell program (Exhibit Q). She did not return to her classroom until 1:00 in the afternoon, causing her to miss some of her special education and regular education programs (Transcript p. 788). On a February 1, 2002 administration of the New York Statewide Testing Program (NYSTP) for fourth graders, she scored a 1 on both the language arts and math evaluations (Exhibits P, Z).

        On February 28, 2002, the district sent the parents notice of a March 14, 2002 CSE meeting to review the student's program and requested their consent to update testing (Exhibit K). The parents initially denied consent (Exhibit 16), but agreed at the March 14, 2002 CSE meeting to allow the district to conduct independent speech-language and educational evaluations (Exhibits L, 20). In addition, the parents submitted for the CSE's review evaluations conducted when their daughter was in kindergarten and third grade, and other documents, including a Lindamood-Bell testing and progress update (Exhibits 12, 15). The independent evaluator who tested her when she was in kindergarten had recommended an O-G or other multi-sensory approach in small group instruction (Exhibit 1). The evaluation conducted when she was in third grade noted that the student had improved in auditory processing, had solid thinking skills and excellent social skills, but continued to exhibit memory deficits, with academic achievement at a first grade level (Exhibit 40). The evaluator recommended that a higher dose of stimulant be considered for the student's attention deficit, and supported the parents' decision to place her at a private school, noting that she could commute to Windward with her father, as it was located very close to his office (Exhibits 40, E).

        At the March 14, 2002 CSE meeting, the CSE changed petitioners' daughter's classification to LD. The IEP developed for the 2002-03 school year, which also covered the remainder of the 2002 school year, increased her resource room services to seven 40-minute periods per cycle. It also provided for four 30-minute periods of SLT and three 40-minute periods of individual remedial reading instruction and an extra reading class in a group (Exhibit 19; Transcript pp. 80, 299, 524). The district agreed that the student's resource room would be taught by an out-of-district learning disability specialist. The student would participate in general education for art, music, lunch and physical education (District Exhibit 19). The parents testified that they objected to the IEP at the March 14, 2002 meeting (Transcript pp. 1125, 1231).

        In a letter dated May 10, 2002, petitioners advised the district that their daughter would be returning to respondent's school on a full-time basis for the remainder of the school year, and noted that they continued to seek reimbursement of their costs associated with the Lindamood-Bell program (Exhibit 21). They further indicated that they would not be enrolling their daughter in the public school for the next year, stating that they would "relieve the District of their obligation to create an appropriate program for [the student] for the 2002-03 school year" (Exhibit 21).

        The independent speech-language evaluation, dated May 22, 2002, identified auditory processing weaknesses in thinking and reasoning skills and memory, and revealed that the student's phonological and decoding skills were below grade level (Exhibit 22). The independent educational evaluation, dated May 23, 2002, described the student as cooperative and positive about school and reading, but restless when asked to write, working too quickly and giving up easily on difficult tasks (Exhibit 23). The evaluator reported that the student believed her reading had improved and that she had a positive attitude toward reading. Although the student had strong verbal language skills, her scores on the Woodcock Johnson Tests of Achievement-Third Edition (W-J III), the Test of Written Language (TOWL) and other diagnostic tests indicated continued deficits in reading comprehension and writing. On June 7, 2002, the student's resource room teacher administered the Gates MacGinitie Silent Reading Test (Gates MacGinitie) which yielded grade equivalent (GE) scores of 2.4 in vocabulary and 2.7 in comprehension (Exhibit 24). The student's fourth grade report card noted that although she was below grade level in reading, writing and math, she continued to exhibit very strong social skills (Exhibit O).

        The student's parents received the IEP on May 29, 2002 (Transcript p. 1354; Exhibit 26), and requested a due process hearing on July 26, 2002 (Exhibit 26). Respondent scheduled a CSE meeting for August 26, 2002, but it was adjourned at the request of the parents (Exhibits 28; Transcript pp. 1233-34). The hearing, which was also adjourned for several months due to settlement negotiations, began on March 17, 2003 and continued on seven different dates, ending on July 9, 2003 (Exhibits 29-31).

        The hearing officer rendered his decision on September 24, 2003. He found that the 2002-03 IEP developed at the March 14, 2002 meeting violated several of the Commissioner's regulations, but did not specify or identify the regulations, and opined that testing and evaluations were not done properly. He stated that, in his opinion, both the district and the student's parents were at fault for the development of the "flawed" IEP. Despite those findings, however, the hearing officer concluded that the school district had offered to provide a free appropriate public education (FAPE) in the least restrictive environment (LRE) to petitioners' daughter for the 2002-03 school year, and that she "should be able to receive the proper services in her home district." He ordered the matter remanded to the CSE to conduct the appropriate evaluations and develop an appropriate IEP, and noted that he would retain jurisdiction. He also determined that respondent was obligated to reimburse the parents for the cost of Lindamood-Bell instruction they provided to their daughter during the 2001-02 school year, finding that there had been a prior agreement of the parties to do so.

        Petitioners maintain that the 2002-03 IEP developed at the March 14, 2002 CSE meeting was not reasonably calculated to meet their daughter's educational needs. They claim that the CSE did not review the student's social history or physical examination at the meeting to develop the IEP, although those reports were listed in the IEP (Exhibits 35, 36). They claim that the IEP did not adequately address the impact her medication would have on her school performance, nor adequately describe her social/emotional needs. They assert that the IEP's goals are not objectively measurable and do not state the manner in which progress will be reported to the parents. They object to the fact that no functional behavioral assessment (FBA) was conducted, despite the IEP's description of her as distractible. They claim that she made only minimal progress after five years in the public school, and that her test results are inconsistent with the "slow and steady progress" testified to by her teachers.

        Petitioners further assert that Windward's program during 2002-03 met the student's special education needs, and that equitable considerations support their request for tuition reimbursement, because they withheld consent to evaluate for only nine days between March 5 and March 14, 2002. Finally, they argue that the hearing officer may not retain jurisdiction over development of her 2002-03 IEP because the school year has concluded, and that the hearing officer is not entitled to retain jurisdiction over the 2003-04 IEP, because that year was not at issue in the hearing and there was no agreement between the parties that he do so.

        Respondent cross-appeals from the hearing officer's determination that it must reimburse petitioners for the cost of the Lindamood-Bell reading program. Respondent asserts that, contrary to the hearing officer's findings of fact, there was no such agreement between the parties. Respondent notes that the student's mother admitted at the hearing that there was no agreement and that petitioners' attorney conceded that a document related to the dispute was not meant to be a final agreement (Exhibit 21).

        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 Sch. Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]).

        A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Walczak v. Florida Union Free Sch. Dist., 142 F. 3d 119, 122 [2d Cir. 1998]; Application of a Child Suspected of Having a Disability, Appeal No. 02-092). To meet its burden of showing that it offered to provide a FAPE to a student, a board of education must show: (a) that it complied with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §1414[d]); and, (b) that the IEP recommended by its CSE is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]). The recommended program must also be provided in the LRE (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

        An IEP must accurately reflect the results of evaluations to identify the student's needs (Application of a Child with a Disability, Appeal No. 02-014). An IEP must also report the student's present levels of educational performance, how her disability affects her involvement and progress in the general curriculum (34 C.F.R. § 300.347[a][1]), and list measurable annual goals related to the student's special needs and how the student's progress will be measured (8 NYCRR 200-4[d][2][i][iii]&[x]; Application of a Child with a Disability, Appeal No. 02-116). A finding that respondent has committed procedural violations of the IDEA in the formulation of an IEP does not automatically mean the student was denied a FAPE, unless the procedural inadequacies resulted in a loss of educational opportunity or lack of parental involvement in the program development (J.D. v. Pawlett Sch. Dist., 224 F. 3d 60, 69-70 [2d Cir. 2000]; Application of a Child with a Disability, 02-015).

        I find that the proposed 2002-03 IEP accurately reflects the results of evaluations of petitioners' daughter, and contains an adequate statement of her academic needs, learning style, social and physical development, and management needs consistent with 8 NYCRR 200.4(d)(2). In describing her present levels of performance, the IEP lists her scores on the Wechsler Intelligence Scale for Children-Third Edition (WISC-III) from October 2000, her reading scores on the Gates-MacGinitie from May 2001, her evaluations from Windward, and a pre-testing summary from the Lindamood-Bell program dated December 2001 (Transcript p. 304). I find that this was sufficient information to permit the CSE to develop an appropriate IEP, particularly in light of the fact that the resource room teacher who had worked with the student for three years was at the March 14, 2002 meeting and was able to provide current information regarding the student's performance levels (Transcript pp. 291-96).

        The IEP listed an updated health evaluation from September 2001 (Exhibit 36), and a social history dated October 28, 1997 (Exhibit 35), which is required as part of a student's initial evaluation (8 NYCRR 200.4[b][iii]). With respect to petitioners' claim that the CSE did not review the student's health evaluation at the meeting, the assistant superintendent testified that the student's medications were discussed at the March 14, 2002 CSE meeting (Transcript p. 130). Further, it does not appear that the student's teachers would not have been aware of any significant change in the student's social history, as her mother served as the class mother for several years, and was present in the classroom approximately three to four days a week, meeting often with the resource room teacher regarding her daughter's progress (Transcript pp. 1185, 1219, 1228, 1245, 1583).

        Petitioners' assertions that the IEP did not adequately address the impact of their daughter's medication or her social-emotional needs are not supported by the record. A review of the record indicates that the student did not have significant social-emotional deficits. On the contrary, the CSE members noted that the student's social skills were very appropriate, that was well connected to the other students, and that her social strengths supported her learning (Transcript p. 66). Her teachers saw her as "a happy child who was happy to come to school" (Transcript pp. 73, 173). Her resource room teacher described her as "well adjusted" in third grade (Transcript p. 239). Her fourth grade teacher described the student's self esteem as "very high" and reported that the student was socially "much sought after" by other students (Transcript pp. 719-24). The IEP contains a medical alert, which states that the student takes medication, and refers to the nurse's file for specific information. The assistant superintendent testified that the CSE discussed her two medications at the March 14, 2002 CSE meeting, but they purposely omitted any reference to the specific drugs on her IEP, because medication prescriptions can change (Transcript pp. 130-33).

        Petitioners' objection to the fact that no FBA was conducted is similarly unfounded. None of their daughter's teachers raised a concern regarding her behavior, and there was no evidence that her behavior or distractibility impeded her ability to learn. Her fourth grade teacher described her as enthusiastic about participating and working in groups (Transcript p. 249), and as attentive, focused, and on task (Transcript p. 726). Understandably, the CSE did not see a need to consider behavioral interventions, because the student's behavior did not impede her learning (8 NYCRR 200.4[d][3][i]; Transcript pp. 135-36, 370-71).

        Turning to the adequacy of the IEP annual goals, I first note that in the official interpretation of its regulations, the U.S. Department of Education has indicated that an IEP team must develop measurable annual goals for a student, and may then develop either measurable intermediate steps (short-term objectives) or major milestones (benchmarks) that will enable educators and the student's parents to monitor the student's progress during the year. Short-term objectives generally break the skills described in the student's annual goals into discrete components, while benchmarks establish expected performance levels at regular intervals (34 C.F.R. Part 300, Appendix A, Section I, Question 1). The student's needs should be reflected in the student's annual goals. Goals are stated in terms of general skills, for which the behaviorally stated short-term objectives or benchmarks delineate specific subskills. When combined, these subskills should result in achieving the broader skills stated in the annual goals.

        Here, the record indicates that the proposed IEPs goals were drafted collaboratively by the resource room teacher and the reading teacher, who were both familiar with the student's performance levels, and that they presented and discussed the proposed goals at the March 2002 meeting (Transcript pp. 314, 316, 967). The resource room teacher explained that the goals and objectives were appropriate, because they were developed within the context of the student's needs, and were developed in a sequence (Transcript p. 316). Further, progress toward meeting the goals was to be measured by both formal and informal methods: teacher made materials, modeling, commercially prepared materials and teacher observations. Objectives were established with a 25 percent accuracy level for mastery, because the student had not yet reached that level (Transcript pp. 165, 338, 345, 348). Although the IEP goals should have been stated with more precision, I find that the goals were substantively appropriate, and that the short-term objectives provided the requisite specificity to enable the student's teachers and her parents to understand the CSE's expectations (Application of a Child with a Disability, Appeal No. 95-15). I find that any procedural inadequacies related to this IEP do not amount to a denial of FAPE, because there was no loss of educational opportunity or lack of parental involvement in the formulation of the IEP (Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]; see also, J.D. ex rel. J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]).

        I further find that the 2002-03 IEP developed for this student was reasonably calculated to meet her educational needs in the LRE. The 2002-03 IEP offered a coordinated program designed to address the student's learning needs by providing significant special education support while allowing the student to remain in the general education setting. Particularly strong and convincing testimony from service providers explains that the recommended program would have been provided through a well-coordinated team effort in which staff worked closely with one another to ensure consistency (Transcript pp. 232, 248, 282, 299, 314, 326-32, 578, 598, 650, 996). The goals and objectives reflect this coordination by the staff.

        The record reveals that in the course of delivering special education services respondent appropriately monitored the educational program and revised the student’s program as needed. The CSE increased the services it offered the student each year in response to test results and other available information regarding her functional level. The resource room teacher added O-G instruction in second and third grade (Transcript pp. 57-58, 222-26), and modified the student's spelling list (Transcript p. 235). In third grade, the resource room teacher began "pushing in" to the student's mainstream classes twice per cycle in addition to the student's scheduled resource room periods (Transcript pp. 237, 245). In fourth grade, the resource room teacher utilized pre-teaching and post-teaching, broke down information into smaller parts, and used over-teaching to address the student's memory deficits (Transcript pp. 246, 260). The collaboration between the student's teachers and other service providers enhanced the student's program and was calculated to meet her unique educational needs (Transcript pp. 248, 282; Application of a Child with a Disability, Appeal No. 02-067). In light of the record before me, I find that Respondent has met its burden of proving that the IEP was likely to produce educational progress (Grim v. Rhinebeck, 346 F.3d 377 [2d Cir. 2003]; Weixel v. Bd. of Educ., 287 F. 3d 138, 151[2d Cir. 2002]; Application of the Bd. of Educ.of the City Sch. Dist. of the City of Poughkeepsie, Appeal No. 03-058).

        Indeed, the record reflects that petitioners' daughter previously made slow but steady progress while receiving special education services provided by respondent (Transcript p. 247). In the psychological assessment conducted during the student's third grade year, the parents' independent evaluator wrote that the "[t]he overall Woodcock score has moved into the average range, suggesting developmental and functional gains in underlying abilities"(Exhibit 40). Her resource room teacher testified that at the end of third grade, the student had started to understand the concepts of writing sentences and paragraphs (Transcript p. 239). Her scores on the Gates MacGinitie reading test in third grade showed a six-month increase in grade equivalent (GE) scores, from a 1.6 GE in vocabulary and a 1.4 GE in comprehension in the previous year to a 1.9 GE in vocabulary and a 2.0 GE in comprehension (Exhibits 8, 9; Transcript pp. 563, 567). In fourth grade, her scores on the Gates MacGinitie had increased to 2.4 GE in vocabulary and 2.7 GE in comprehension (Exhibit 24). Her fourth grade teacher opined that the student made progress within expectations given the severity of her disability (Exhibit 24; Transcript pp. 394, 398). Her resource room teacher offered specific examples of the student's progress in fourth grade and noted that the student had begun to implement some of the word attack skills she had been taught in the OG program (Transcript pp. 500-01, 574). Her reading teacher testified that the student had learned skills to compensate for her memory deficits, and was able to use those skills to aid her reading (Transcript p. 920).

        The parents are not entitled to reimbursement for the cost of the Lindamood-Bell program in which they enrolled their daughter during the 2001-02 school year, unless they can demonstrate that the district failed to offer a FAPE during that year, the services provided by the parents were appropriate, and equitable considerations support their claim (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). Not only have petitioners failed to prove that the district denied a FAPE in 2001-02, but the student's reading teacher stated that she did not see any improvement in the student's reading after participating in the Lindamood-Bell program (Transcript p. 85). As for the existence of an agreement regarding reimbursement, there was testimony indicating that negotiations had never reached a conclusion and there was no agreement with respect to payment or non payment (Transcript pp. 126, 1232). For those reasons, I disagree with the hearing officer and conclude that the district is not obligated to reimburse petitioners for the cost of the Lindamood-Bell program.

        Petitioners also have asserted that their daughter has not been provided with suitable transportation services. Under the circumstances of this case, the district has no obligation under the IDEA to provide transportation to the student to Windward during the 2002-03 school year (C.F.R. § 300.456 [B][ii]). Petitioners contend, however, that the district has an obligation to provide their daughter with suitable transportation under New York State Education Law 4402 (4)(d). That law provides that a board of education:

shall provide suitable transportation up to a distance of fifty miles to and from a nonpublic school which a child with a handicapping condition attends if such child has been so identified by the local committee on special education and such child attends such school for the purpose of receiving services or programs similar to special educational programs recommended for such child by the local committee on special education.

(Education Law § 4402 [4][d]). An SRO previously held that this provision does not apply when, as here, the student is not attending the private school for the purpose of receiving special education services recommended by the CSE, nor was it necessary for the student to attend the private school to receive such services (Application of a Child with a Disability, Appeal No. 99-002).

        However, respondent did choose to provide transportation to petitioners' daughter. The assistant superintendent for transportation testified that although this was the first unilateral placement he had handled (Transcript p. 825), he contacted several bus companies and researched other options before contracting with the Acme bus company for the shortest and safest ride which took approximately one hour and forty minutes (Exhibit 32; Transcript pp. 811-17). In practice, however, the student rode the bus in the morning only on rare occasions, because she was driven by her father, whose office was located only a few miles from Windward (Transcript pp. 856-57, 862, 864-65). In the afternoon, she rode the bus approximately three times a week, because her father would take her to [her] after school appointments (Transcript pp. 1021, 1023-24).

        The assistant superintendent further testified that the district offered to reimburse the parents for tolls and mileage at the IRS rate, but the parents did not respond (Transcript p. 816). At the hearing, the student's father testified that he was not seeking reimbursement for tolls which he would have incurred in the commute to his office in any event (Transcript p. 1259), and that he was not agreeable to the district's offer of reimbursement (Transcript p. 1339).

        Neither state nor federal law provides specific limitations on the duration of travel, and a State Review Officer held on one occasion that a one-way trip of over an hour was not necessarily inappropriate for a student (Application of a Child with a Disability, Appeal No. 03-054). I agree with the hearing officer, that the district was not remiss with regard to transportation.

        I do agree with petitioners' claim that the hearing officer erred, and exceeded his authority, in retaining jurisdiction over ancillary matters pertaining to the 2002-03 IEP and over any disputes involving a subsequent IEP for the 2003-04 school year, and sustain the appeal to that extent. As petitioners point out on appeal, neither party sought retention of jurisdiction by this hearing officer, nor did appropriate circumstances exist for the hearing officer to retain jurisdiction (Application of the Bd. of Educ. of the Pawling Central School Dist., Appeal No., 03-022; Application of a Child with a Disability, Appeal No. 96-45).

        I have considered petitioners' remaining claims and find them to be without merit.

THE APPEAL IS SUSTAINED IN PART.

THE CROSS-APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer's decision is annulled to the extent that it awarded reimbursement for the Lindamood-Bell program; and to the extent that the hearing officer maintained jurisdiction over disputes between the parties pertaining to special education for the 2002-03 and 2003-04 school years.