Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Monroe-Woodbury Central School District
Michael H. Sussman, Esq., attorney for petitioner
Donoghue, Thomas, Auslander & Drohan, attorney for respondent, James P. Drohan, Esq., of counsel
Petitioner appeals from an impartial hearing officer's decision which denied his request for reimbursement of the cost of his son's expenses at the Kildonan School (Kildonan) during the 2003-04 school year. Petitioner seeks reimbursement of his expenses and a determination that Kildonan was the student's pendency placement for the 2004-05 school year. The appeal must be dismissed.
At the time of the hearing, petitioner's son was 17 years old. Respondent's committee on special education (CSE) classified him as a learning disabled student and provided special education services to him in the district from second grade through fifth grade (Transcript p. 21). During the 1997-98 school year, the student's parents placed him in the Windward School (Windward), and he repeated fifth grade (Transcript p. 23). The student remained at Windward through the 2002-03 school year (Transcript p. 26).
The CSE convened on May 8, 2003 to develop the student's individualized education program (IEP) for the 2003-04 school year (Exhibit 12; Transcript pp. 28, 29). The student's cognitive ability is in the average range (Exhibit 14). He does, however, exhibit "significant auditory processing deficits" and testing revealed that his reading ability is six years below his current grade level (id.). The CSE recommended placement in the eleventh grade at the Monroe-Woodbury High School, in an integrated class for science and a special class for English, math, and history (Exhibit 12). The CSE also recommended a special class for skills instruction, which met for two periods per day (id.). The focus of one period was study and organizational skills (id.). During the second period, the teacher provided direct instruction in reading and written language (id.). The integrated class and the special classes all had student to staff ratios of 15:1 (id.). Finally, the CSE recommended testing accommodations and program modifications, including books on tape (id.).
The student's parents requested information regarding private schools that school districts may contract with to provide special education services. The CSE chairperson authorized an exploratory visit by the parents at the Community School of Bergen (Bergen). The CSE agreed to reconvene after the visit (Exhibit 12). When the CSE reconvened on July 10, 2003, the parents stated that they were rejecting both the recommended placement in the district and the program at Bergen (Exhibit 10). They requested that their son be placed at Kildonan (id.), a private school that the Commissioner of Education has not designated as a school that public school districts may contract with to provide special education services. In response to that request, the CSE agreed to recommend an independent psychoeducational evaluation and to reconvene to review the results (Exhibits 10, 48). On July 15, 2003, the parents requested an impartial hearing (Exhibit 1). They enrolled their son at Kildonan for the 2003-04 school year and sought reimbursement of their son's expenses at Kildonan and a determination that Kildonan was their son's pendency placement (Exhibit 1).
On July 24, 2003, a psychologist hired by the parents evaluated the student's reading and writing ability (Exhibit 49). An independent psychologist hired by the district evaluated the student over the course of three days in August and September 2003 (Exhibits 9). The reading and writing evaluation revealed a deficit in the student's overall reading ability, which the parents'evaluator opined was the result of attention difficulties and a weakness in sight word vocabulary (Exhibit 49). The parents' evaluator recommended continuation of the Orton-Gillingham program, a methodology which emphasizes phonemic awareness in its approach to reading (id.; Transcript p. 451). The district's independent psychologist determined that the student's intellectual ability was in the low average to average range, and that the student did not display indications of an attention deficit hyperactivity disorder. He opined that the student needed a curriculum that included associational learning techniques to improve memory and retrieval. He recommended a multisensory program that included Orton-Gillingham strategies (Exhibit 9).
The impartial hearing commenced on September 17, continued for four days, and concluded on October 9, 2003. The hearing officer found that the school district provided an appropriate program. She determined that the CSE considered the most recent evaluative information from both Windward and the district. She further determined that the CSE developed an IEP that adequately described the student's present levels of performance and provided a program that appropriately addressed the student's needs in the least restrictive environment.
Petitioner appeals asserting that the IEP was inappropriate because the recommended class included an excessively large number of students and because his son needed instructors who used the Orton-Gillingham methodology. Petitioner seeks reimbursement of tuition and costs expended for the 2003-04 school year and a determination that Kildonan is his son's pendency placement for the 2004-05 school year.
A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 ; Walczak v. Bd. of Educ., 142 F.3d 119, 122 [2d Cir. 1988]; Application of a Child with a Disability, Appeal No. 02-029). To meet its burden of showing that it provided a FAPE to an individual child, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 US 176, 206-07 ). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child'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. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). A board of education may be required to pay for educational services obtained for a student with a disability by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Burlington Sch. Comm. v. Dep't. of Educ., 471 U.S. 359 ; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ).
The evidence shows that the CSE complied with the procedural requirements of the IDEA and that it developed an IEP reasonably calculated to provide the student with educational benefit. The CSE reviewed the results of standardized tests conducted in April 2003. On the Gray Oral Reading Test – III, the student received a standard score of 70 and a percentile score of 2 (Exhibits 12, 13). On the Test of Written Language – 3, the student's overall writing composite standard score was 65 and the percentile score was 1 (id.). On the Woodcock-Johnson – III, Tests of Achievement, the student's broad reading cluster standard score was 75 and his percentile score was 5. His broad math cluster standard score was 89 and his percentile score was 22 (Exhibit 12). The school psychologist testified that the average range for standard scores is between 90 and 110 (Transcript p. 186).
The CSE, which included one of the student's teachers from Windward, recommended placement in an integrated class for science and a special class for English, math, history, and two periods of skills instruction. The student to staff ratio of each class was 15:1 (Exhibit 12). Although a neuropsychologist who had evaluated the student in February 2003 had raised concerns about an attention deficit hyperactivity disorder (Exhibit 16), the teacher from Windward did not describe behavioral difficulties and reportedly agreed with the results of the assessments presented (Exhibit 12). A witness from Kildonan testified that the student had not exhibited problems with distraction or inattention (Transcript p. 872).
The CSE developed an IEP that accurately described the student's present levels of performance and individual needs (8 NYCRR 200.4[d][i]; see Exhibit 10). The IEP indicated that the student had no special physical or social needs. With regard to management and academic needs, the IEP included the results of the student's most recent standardized test scores and indicated that he need a multisensory approach with repetition and frequent reinforcement (Exhibit 10). The IEP included a transition plan that indicated that school district personnel would assist the student in investigating technical training programs (id.).
The CSE developed goals and objectives for the student that primarily addressed organization, reading comprehension, compensatory strategies, written expression and everyday math (8 NYCRR 200.4[d][iii]; Exhibit 10). The study skills goals and objectives focused on organization and compensatory techniques. The reading goals and objectives addressed word recognition, decoding and comprehension. The writing goals and objectives addressed the mechanics of written language and multi-paragraph composition. Finally, the IEP included a mathematics goal with corresponding objectives that focused on problem solving and everyday math (id.).
Orton-Gillingham was the only reading methodology used to instruct the student at Winward (Transcript p. 701). The evidence shows that the student's deficit in reading achievement increased while at Windward (id.). Although the parent's expert recommends continued instruction in the Orton-Gillingham methodology, the evidence reveals that the student needs instruction in compensatory techniques in addition to a multisensory approach to reading. The program offered by the district includes a class that specifically addresses reading (Exhibits 10, 12; Transcript p. 804). The district's reading instructor is trained in the Orton-Gillingham method (Transcript pp. 804-05). The program also includes use of books on tape and a Kurzweil reader (Exhibits 10, 12; Transcript p. 804-05). A Kurzweil reader is a device that is used to both translate books and assist students when they read (Transcript p. 805). In addition, the CSE recommended testing accommodations including extended time periods, tests read, spelling waived, use of a word processor, recording of essays and short answers, use of a tape recorder, directions read and explained, use of a spell check devise, and repetition of listening sections (Exhibit 10). Classroom accommodations included additional time to complete tasks, access to copies of class notes, use of books on tape, use of graphic organizers, reteaching of materials, and access to a computer (id.).
Petitioner asserts that the recommended class size is too large for his son. The record, when read as a whole, does not support this contention. Neither the independent expert nor the student's instructors agreed with the opinion of the parent's expert that the student had attentional difficulties that would indicate the need for a smaller student-teacher ratio (Exhibits 9, 12; Transcript p. 872). I am persuaded by the hearing record that the student can be taught in a classroom of 15 students. Petitioners also assert that the offered IEP is inappropriate because his son's instructors need to use the Orton-Gillingham teaching methodology. I note however that the student's proposed reading teacher in the district is trained in the Orton-Gillingham methodology (Transcript pp. 804-05).1 I find that respondent's CSE has met the burden of showing that they recommended an appropriate program for petitioner's son. Because I have found that the district recommended an appropriate program, I need not address the appropriateness of the Kildonan program selected by the petitioner or equitable considerations (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000] ["If the challenged IEP was adequate, the state has satisfied its obligations under the IDEA and the necessary inquiry is at an end"]; see Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 134 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 03-058).
I have considered petitioner's other contentions and find them to be without merit.
THE APPEAL IS DISMISSED.
1 I note that testimony indicates that this student would not receive instruction in the Orton-Gillingham method in content area classes at Kildonan (Transcript pp. 100, 869). The Kildonan academic dean testified that "the primary way the students receive information…[in core academic areas] is listening to the teacher read or from time to time students will volunteer to read in class " (Transcript pp. 869-70).