04-003

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

           Initially I will address a procedural matter. In the instant case, the petition was served on respondent in excess of the time period permitted by Regulations of the Commissioner of Education pertaining to the practice on review of impartial hearings for students with disabilities (8 NYCRR 279.2).  The regulations pertaining to the limitation of time for the initiation of an appeal provide the State Review Officer with the authority to dismiss sua sponte a late petition for review and the sole discretion to excuse the untimely filing of a petition for review for good cause shown in the petition (8 NYCRR 279.13).  In their petition for review, petitioners offered good cause for late service of the petition stating that they did not receive hearing transcripts until after the hearing officer issued his October 28, 2003 decision (Petition ¶¶ 7-18).  Respondent acknowledged petitioners' late receipt of the hearing transcripts in its answer and does not object to the untimeliness of the petition (Answer ¶¶ 7, 9, 10, 11, 13, 16).  A review of the record reveals that the hearing officer indicated that transcripts would be provided to the parties and that he would utilize the transcripts in reaching his decision (Transcript pp. 427-29).  I note also that petitioner filed a timely Notice of Intention to Seek Review prior to receiving the transcripts.  Based upon circumstances as presented, I will excuse petitioners' delay.

            A hearing was held on May 13, May 15, and August 21, 2003.  At the time of the hearing, petitioners' son was ten years old and was in the fourth grade at Eagle Hill, a special education transition school for students with language-based learning disabilities, designed to ultimately return children to public school (Transcript pp. 343, 375, 376).  Eagle Hill is a nonpublic school that has not been approved by the Commissioner of Education to contract with school districts for the education of students with disabilities. 

            The hearing record provides an overview of the student's educational history.  The student was classified as speech impaired when he was in kindergarten.  The individualized education programs (IEPs) resulting from the June 18, 2001 and September 21, 2001 Committee on Special Education (CSE) meetings held by respondent  indicate that the child's classification changed to other health impaired (OHI) (District Exhibits 2, 5) prior to the child's third grade year.  A diagnosis of attention deficit hyperactivity disorder (ADHD) was reported to be the basis for the OHI classification, as indicated by the IEP resulting from the May 31, 2002 annual review conducted by respondent's CSE for the 2002-03 school year (District Exhibit 1).  After two private nursery school enrollments, the student attended inclusion programs within the public school district until his completion of third grade (Transcript p. 403).  The student was unilaterally placed at Eagle Hill by his parents for the 2002-03 school year.  There is no dispute about the student 's OHI classification. 

            In April 2001, the Wechsler Intelligence Scale for Children-III (WISC-III) yielded a low-average, full scale score of 87 for petitioners' son (District Exhibit 1).  The record reveals that organizational and attentional deficits interfere with his ability to focus and fully participate in class (Transcript pp. 302, 312-13, 328-30; District Exhibits 5, 12).  The May 31, 2002 IEP for the 2002-03 school year, and a May 2001 private speech and language evaluation, indicate that the student has a visual learning style and demonstrates difficulties with expressing his thoughts in writing, inferential reading comprehension skills, and math skills (District Exhibits 1, 5).  The May 2001 speech-language evaluation also identified deficiencies in the semantic, syntactic, and phonological skills, executive functioning, verbal reasoning, comprehension, analysis of information, and degree of cognitive flexibility (District Exhibit 5). An April 2000 speech-language triennial evaluation indicated performance in the average range for semantic and syntactic language skills and reported great improvement over the previous two years and one-half years, but also noted that the student's attention deficits affect his ability to access these skills (District Exhibit 6).  In a May 2002 progress report, the student's speech-language therapist noted that the student had some difficulty staying focused but was easily redirected (District Exhibit 4).  During the 2001-02 school year, the student displayed successful social skills despite his delayed speech-language skills (Transcript pp. 29-32, 98-99, 163-66; District Exhibit 1).

            The student's handwriting skills were described as below grade level (Transcript p. 302; District Exhibits 1, 12).  He also exhibited low muscle tone, fine and gross motor skill development deficiencies, postural weaknesses, poor endurance, and weak upper extremities, which required occupational therapy services (Transcript pp. 303-04, 311, 328; District Exhibits 1, 12).  Because of the student's attention deficits, the occupational therapist engaged him kinesthetically and proprioceptively during the 2001-02 school year by having the student move his body in a productive way before beginning handwriting and other specific motor activities (Transcript pp. 302-03, 312-13).  He was given an adapted pencil grip, slant board, and raised and wider lined paper to use, and was directed to participate in exercises reinforcing left to right sequencing to develop handwriting and other fine motor skills.  When writing, the student was repositioned in a chair that was turned around in order to retain his attention and to help correct postural problems related to low muscle tone (Transcript pp. 303-04).  Skills such as keyboarding were not taught in the same manner as would have been taught by a classroom teacher (Transcript p. 318) but rather were taught to develop fine motor skills secondarily transferable for use in keyboarding skill development at a later date (Transcript pp. 316-18).  The student demonstrated progress in academic and visual-motor skills in the 2001-02 academic year (Transcript pp. 307-10, 314, 317; District Exhibits 1, 3, 12, Parents Exhibits A1, A2).

            To address the student's educational needs in the 2002-03 school year, the May 31, 2002 CSE recommended that he be enrolled in a collaborative educational program substantially similar to his successful 2001-02 program (Transcript pp. 211-12), with two 45-minute sessions of 12:1+1 special education language arts, one 45-minute session of 12:1+1 special education math daily, and 12:1 inclusion classes in science and social studies (District Exhibit 1).  He was to be mainstreamed for all other subject areas.  In addition, the CSE recommended that the student receive 30 minutes of group occupational therapy services twice a week (id.).  Respondent's occupational therapist was given the discretion to provide either individual or group occupational therapy, contingent upon the student's needs (Transcript p. 321).  A 30-minute group speech-language therapy session in an integrated setting was recommended once a week, and a 45-minute session of group speech-language therapy in a non-integrated setting was recommended twice a week (Exhibit District 1).  The CSE also recommended program supports that included preferential seating, refocusing and redirection cues, visual cues, and positive reinforcement.  Recommended testing accommodations included assistance in the recording of answers, and reading and explanation of directions, as well as the provision of extended time for test taking (id.).

            Petitioners did not accept the CSE's recommended educational program.  By letter dated November 15, 2002, they informed respondent's director of special services that the student had been unilaterally enrolled at Eagle Hill for the 2002-03 school year, and requested an impartial hearing for the purpose of obtaining an award of tuition reimbursement (Hearing Officer Exhibit 1).  The hearing commenced on May 13, 2003, and concluded on August 21, 2003. 

            In a decision dated October 28, 2003, the hearing officer concluded that petitioners were given a meaningful opportunity to participate in the development of the IEP at issue.  The hearing officer further determined the offered IEP to be reasonably calculated to provide the student with a meaningful opportunity to obtain an educational benefit.  I agree.  The hearing officer also determined Eagle Hill to be an inappropriate placement, based upon its failure to provide the student with the following: occupational therapy, science as part of the fourth grade curriculum, and a program in the least restrictive environment (LRE).  Regarding LRE, the hearing officer noted that in addition to the Eagle Hill program being inappropriate, the placement did not provide an opportunity for interaction with nondisabled peers and that peer modeling was considered an important part of the offered public school program.  Moreover, the hearing officer determined that the private placement is some distance away from the child's home, friends and acquaintances, and travel from home to school would unduly lengthen the student's day. 

            Petitioners contend that the hearing officer erred by failing to find the IEP procedurally defective due to its lack of recent medical reports and short-term goals.  They further assert that the hearing officer relied on the similarities between the 2001-02 and 2002-03 IEPs when determining whether the 2002-03 IEP was reasonably calculated to provide a meaningful opportunity to obtain an educational benefit for the student, without evidence of a suitable grouping of students for instructional purposes and associated class profiles.  Petitioners argue that respondent's student–teacher ratio did not meet their son's needs, citing insufficient academic and social progress made by their son during the 2001-02 school year.  They further contend that Eagle Hill provided appropriate student-teacher ratios in the LRE for their son, and met his fine motor and occupational therapy needs through handwriting classes.  Respondent asserts that the 2002-03 IEP offered the student a free appropriate public education (FAPE) in the LRE, and that petitioners failed to meet their burden to show that their son's placement at Eagle Hill was appropriate.

            A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ. 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]).  While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21 [1st Cir. 2002]; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d 96 [2d Cir. 2000]).

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). In order to meet its burden to show that it offered to provide a student with a FAPE, a 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 (Rowley, 458 U.S. at 206-07; M.S., 231 F.3d at 102; Application of a Child with a Disability, Appeal No. 02-025).  Procedural flaws do not automatically require a finding of a denial of FAPE, but procedural inadequacies that individually or cumulatively result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP, clearly constitute a denial of FAPE (W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D. Conn. 2001]; seeArlington Cent. Sch. Dist. v. D.K., ___ F.Supp.2d ___, 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; Evans, 930 F.Supp at 93; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]; Application of a Child with a Disability, Appeal No. 02-041; Application of a Child with a Disability, Appeal No. 02-015).  The program recommended by the CSE must also be provided in the LRE (20 U.S.C. § 1412[a][5]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

            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).  State and 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]; 8 NYCRR 200.4[b][5][ii][b] and [d][2][i][a]).  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).

            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]; 8 NYCRR 200.4[d][2][iii][a] and [b]).  In addition, an IEP must describe how the student's progress towards the annual goals will be measured and how the student's parents will be regularly informed of such progress (34 C.F.R. § 300.347[a][7]; 8 NYCRR 200.4[d][2][iii] and [x]).

            Petitioners assert the IEP contains multiple procedural and substantive violations.   Based upon a review of the overall record and of the resulting IEP, I find that any procedural inadequacies were not of a nature and number that amounted to a denial of a FAPE. I also find that in this case respondent has met its burden of demonstrating that the IEP was substantively appropriate (M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]).  The Second Circuit has found that "for an IEP to be 'reasonably calculated to enable the child to receive educational benefits,' Rowley, 458 U.S. at 206-7, 102 S.Ct. 3034, it must be 'likely to produce progress, not regression,' Walczak, 142 F.3d at 130 (M.S., 231 F.3d at 103).  The child's progress must be viewed in light of the limitations of the child's disability (Rowley, 458 U.S. at 202; Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114 [2d Cir. 1997]).  The educational benefit must be "meaningful" (Rowley, 458 U.S. at 192) and "more than mere trivial advancement" (Walczak, 142 F.3d at 130; Mrs. B., 103 F.3d at 1121).

            The record reveals that the student made progress during the 2001-02 school year and that the 2002-03 IEP was calculated to enable the student to continue that progress. Although the student continued to require assistance with organization, focus, motor skills, speech-language skills, language arts and math (Transcript pp. 29-30, 81, 158, 195; District Exhibits 1, 5, 6, 12), he achieved meaningful progress in multiple areas from the program implemented during the 2001-02 school year.  The student's language arts deficits affected written expression and the ability to draw the inferences necessary for reading comprehension (Transcript p. 194; Exhibit 1).  Reading progress in third grade was demonstrated by comparing the student's Fall 2001 Diagnostic Reading Assessment (DRA) scores, which indicated an instructional level of 34 (grade equivalent unstated) (Transcript p. 192) to his April 2002 DRA instructional reading level of 44 (grade four equivalent) and independent reading level of 40 (grade three equivalent) (Transcript p. 192; District Exhibit 8).  The student's language arts teacher testified that the student made progress in writing skills, reading, and classroom discussion participation (Transcript p. 194). 

            The student's math teacher testified that petitioners' son had initially been placed in a math class that was determined to be too easy for him, and he was moved to a math class at the next level by the end of September 2001 (Transcript p. 20).  Both the language arts and math teachers testified that the student's ability to control his impulsive behavior had improved significantly (Transcript pp. 23-24, 195, 263), and that he had demonstrated improvement in organizational (Transcript pp. 23-25, 195, 263) and social skills and behaviors (Transcript pp. 26-30, 32, 207-08).  

            The student's speech-language therapist testified to progress in the areas of vocabulary, formulation of grammatically correct sentences, and the retelling of verbal narratives (Transcript p. 80).  She further testified that the student performed at the top of the speech class when reading aloud fluently (Transcript p. 83) and both the speech-language therapist and the student's language arts teacher testified that they had observed emerging leadership qualities in the student (Transcript pp. 85, 208).  The speech-language therapist also testified that, in addition to an observed increase in the student's ability to attend and participate in speech therapy sessions (Transcript p. 83), he had progressed from using an authoritative communication style in his "Friendship Group" to using a much more interactive style, and he had developed the ability to initiate conversations with children he did not know (Transcript pp. 84, 98-99, 163-66).  This progress was measured through the use of a social/pragmatic checklist administered in December 2001 and at again the end of the school year (Transcript p. 84). 

            The student's health teacher testified that the student was easy to work with and that she was very pleased with his academic skills, level of cooperation and preparation (Transcript pp. 157-59).  She described his progress as steady and progressive (Transcript p. 167).  Selected from a population of 800 students, the student was one of 20 students to receive a "happy face" symbol on his report card for health (Transcript p. 159; Parents Exhibits A1).  Although the student's social studies/science teacher was concerned about his lack of global curiosity (Transcript p. 273), she reported growth in the areas of curiosity and problem solving (Transcript pp. 273-74) as well as organizational and attending skills (Transcript pp. 264, 267). 

            The student's occupational therapy deficits include below grade level handwriting skills (Transcript p. 302; District Exhibit 1), low muscle tone, fine and gross motor skill development deficiencies, postural weaknesses, poor endurance, weak upper extremities, and difficulties with left-right orientation and coordination (Transcript pp. 303-04, 311, 316, 328; District Exhibit 1).  However, he demonstrated meaningful progress in occupational therapy.  On the Visual Motor Integration Test (VMI), petitioners' son scored at the 14th percentile in 2001 and at the 53rd percentile in 2002 (Transcript p. 308).  He was able to integrate what he saw with the way in which he motored his hand, by literally moving his hand to replicate geometric shapes on the standardized battery.  The student's occupational therapist noted that this ability provided the basis for handwriting as well as various forms of instruction  (Transcript p. 308).  Testimony from the language arts teacher regarding improvement in this area supported the results of the VMI (Transcript p. 206). 

            The student demonstrated significant improvement on the visual perceptual subtest of the VMI, scoring in the 6th percentile (below average range) in April 2000 and in the 37th percentile (average range) in May 2002.  VMI motor subtest results indicated that his fine motor functions relating to handwriting needed continued work (Exhibits 11, 12; Transcript p. 309).  Supporting VMI test results, the Detroit Test of Motor Precision Skills administered in May 2002 indicated that the student has a delay in motor skills of approximately two years (Transcript p. 311).  The therapist recommended that occupational therapy for the 2002-03 school year be decreased from three times a week to two times a week, based upon progress made in the bilateral skills and fine motor areas (Transcript p. 314).  Although the student's occupational therapy annual review indicated that he had made significant improvements in this area over time, attentional deficits were described as a struggle, "impact[ing] on the quality of his output" (Exhibit 12). 

            By the end of the 2001-02 school year, petitioners' son had completed 34 of the 73 short-term objectives on his IEP, representing approximately 47 percent of his short-term objectives.  With the exception of one objective that was not undertaken, progress was reported on all remaining objectives.  Several objectives were rated with "S" or "S+," indicating some progress in either the first or second trimester.  Subsequent trimesters indicated "P" or "P+," indicators that the student was progressing satisfactorily (District Exhibit 3).

            Report cards for academic and special area subjects in conjunction with report card explanations (Parents Exhibits A-1, A-2) indicate that the student made progress throughout the school year in all academic subjects and consistently demonstrated the targeted behaviors listed for special education.  This is supported by testimony from the student's third grade inclusion teacher, language arts teacher, homeroom and social studies inclusion teacher, health teacher, speech-language therapist, and occupational therapist, all of whom reported steady progress in the academic, organizational, attentional and/or social domains (Transcript pp. 20, 23-30, 32, 53-55, 66, 78, 80, 83-85, 94, 98-100, 156-68, 177, 183, 186, 188, 190, 192-95, 206-10, 211-13, 241, 256-57, 259, 263, 271, 277, 301-02, 307-09, 314, 315).  

            Despite this degree of progress, I am mindful of petitioners' concern regarding the extent of their son's social and academic progress.  Although there was testimony concerning the student’s anxious and withdrawn behavior (Transcript p. 406), his teachers testified that the student's initial levels of anxiety had decreased and, as was the case with his academic progress, his social and organizational skills had increased over the course of the year (Transcript p. 208).  Additional testimony from the student's teachers supported the appropriateness of the collaborative nature of the proposed fourth grade inclusion program intertwined with a pullout component as able to provide an environment conducive to social and academic growth for the student (Transcript pp. 32, 98-100, 167-68, 211-13, 277-78, 286, 315).  The collaborative nature of the proposed program, combining special classes with integrated classes, is appropriate for this student and is also consistent with the requirement that the student be educated with nondisabled students to the maximum extent appropriate (Rowley, 458 U.S. at 202; Walczak, 142 F.3d 119; Oberti v. Bd. of Educ. of the Borough of Clementon Sch. Dist., 995 F.2d 1204 [3rd Cir. 1993]; Application of a Child with a Disability, Appeal No. 02-032; Application of a Child with a Disability, Appeal No. 94-21; Application of a Child with a Disability, Appeal No. 94-18; 8 NYCRR 200.6; 200.1 [cc]). 

            During third grade, while interacting with regular education students in science and social studies integrated classes, the student had access to the support of his special education teacher in addition to his regular education teacher and aide (Transcript p. 118), a support, which was standard practice for the district (Transcript p. 281).  These positive experiences provided opportunities for learning within functional contexts, while allowing the student to receive consistent support from two teachers and an aide.  The integrated science and social studies classes were also broken down into smaller groups of four students (Transcript pp. 26-27), affording an even smaller student to teacher ratio than recommended for the student.  Teacher testimony indicated that the student appeared to enjoy science (Transcript p. 24), and also that the language arts curriculum paralleled the curriculum of the regular education classroom, albeit adjusted to accommodate his need to learn at a slower pace (Transcript p. 71).

            Myriad opportunities existed for the student to practice and generalize the organizational, attending, listening, language and social pragmatic behaviors and skills that he acquired in the more restrictive environment of the special classes, to the integrated classes.  Such role modeling was also encouraged through the child's participation in an integrated health class and in the Friendship Group, a group designed to enhance social skills through recreational play and role modeling (Transcript pp. 28, 32, 84, 85, 94, 98-99, 163-66, 167, 278, 315; Exhibit 4).  The student's initial anxious behaviors were not observed once his confidence increased (Transcript pp. 53-55).  He reportedly took more risks and appeared to be more comfortable interacting with his peers (Transcript p. 28). 

            The record before me sufficiently indicates that this student showed educational progress as a result of the 2001-02 program and that the 2002-03 IEP was reasonably calculated to provide educational benefit. Evidence of an appropriate program in the preceding year does not necessarily mean the currently offered program is appropriate, however, given the evidence here, I am persuaded, as was the hearing officer, that the 2002-03 program was likely to produce progress. The proposed program, which was designed by professionals who were familiar with the student and who previously had fashioned a program which produced progress, offered the student educational services to adequately meet identified needs for the 2002-03 school year.

              I agree with the hearing officer and find respondent has met its burden of showing that it offered to provide a FAPE in the LRE to the student during the 2002-03 school year.  Having so found, I need not determine whether petitioners have met the other criteria for an award of tuition reimbursement (M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134).

THE APPEAL IS DISMISSED.