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 North Shore Central School District
Ingerman Smith, LLP, attorney for respondent, Susan M. Gibson, Esq., of counsel
Petitioner appeals from an impartial hearing officer's decision denying her request to be reimbursed for the cost of her son's tuition at the Landmark School (Landmark) for summer 2003 and the 2003-04 school year. The appeal must be dismissed.
Petitioner's son was 16 years old and an 11th grade student at Landmark at the commencement of the hearing in September 2003. He has a diagnosis of attention deficit hyperactivity disorder (ADHD) (Exhibit 12) and been classified as other health impaired (OHI). His classification is not in dispute. Petitioner unilaterally placed her son at Landmark in summer 2003. Landmark is a private residential school exclusively for students with language-based learning disabilities (Parent Exhibit 73) and has not been approved by the Commissioner of Education to contract with school districts to educate students with disabilities.
The student attended the district's schools from kindergarten through the end of tenth grade in June 2003. In kindergarten, the student was classified learning disabled/other health impaired, but that classification was changed to OHI in 1998 (District Exhibit 12; Transcript p. 692). The Connors Teacher Rating Scale – Revised completed by his teachers in December 2000 indicated that the student's behaviors related to his ADHD were "variable but manageable" (Exhibit 15). In tenth grade, during the 2002-03 school year, the student made substantial progress while enrolled at the district's high school. He achieved passing grades of 87 on both his global history and his biology Regents exams, and he passed all of his subjects, earning 6.63 credits towards graduation with a Regents diploma (Exhibit 21). The student's resource room teacher testified that the student progressed socially and emotionally in tenth grade and exhibited increased confidence (Transcript pp. 293, 748). She further testified that the student's organizational skills improved, his backpack belongings, folders, papers, handouts and dividers were organized, and he handed in his homework on a regular basis (Transcript p. 748). The student perceived himself as capable and he resisted testing modifications which would identify him as different (Transcript p. 751), at times refusing them and asking the resource room teacher to advocate for him by declining to give him a separate testing location if his mother requested it (Transcript p. 753). The student stated that he did not feel his level of disability required him to be any different from anyone else (Transcript p. 754).
The student's resource room teacher testified that she and other staff members met with petitioner at the beginning of the 2002-03 school year while the student was in ninth grade (Transcript p. 289). At this meeting, petitioner stated that her son was dyslexic, dysgraphic, impulsive and verbally compulsive, had ADHD, could not pay attention in class, and was unable to organize and complete tasks on his own (Transcript p. 290). Petitioner claimed her son would be the staff's most difficult student (Transcript p. 291). The resource room teacher testified that, based on this meeting, she had expected the student to be severely disabled and to exhibit "very bizarre behaviors" (Transcript p. 287) but that the student never exhibited any of the behaviors described by his mother (Transcript p. 292). While the resource room teacher did observe some evidence of "mild disability in attention and management, organization" (Transcript p. 360), she did not observe any evidence of hyperactivity (Transcript p. 292), nor did she observe signs that the student was dyslexic or dysgraphic. She opined that the student had a mild disability in written expression and possibly in reading comprehension (Transcript p. 360). She testified that she was "shocked, and upset and angry" when she learned that the student was removed from a setting in which he was progressing and working productively and was placed at Landmark, because he was demonstrating the ability to continue his education as an independent student and "looked like a candidate for declassification." She testified that she believed the student would have graduated with high marks (Transcript pp. 778-79).
On August 18, 2003, petitioner requested an impartial hearing to obtain tuition reimbursement for both summer 2003 and the 2003-04 school year (District Exhibit 1). The hearing began on September 30, 2003, and was held on 15 different days, concluding on November 20, 2003. The resulting record included over 100 exhibits as well as a transcript in excess of 1800 pages, with testimony of 14 witnesses. The hearing officer issued his decision on January 27, 2004. He found the district offered the student a free appropriate public education (FAPE) in the least restrictive environment (LRE) and denied petitioner's request for tuition reimbursement. He ordered the Committee on Special Education (CSE) to convene to update evaluations necessary for development of an individualized education program (IEP) for the remainder of the 2003-04 school year and for the 2004-05 school year, upon written notice from petitioner indicating the student's return to the district. He further ordered the CSE to convene no later than May 2004 in order to develop an IEP for the student's 12th grade year and ordered the CSE to prepare the IEPs according to guidelines provided by the New York State Education Department.
Petitioner appeals, asserting that the resource room program did not provide her son with educational benefit and that the program recommended by the CSE for the 2003-04 school year is essentially the same program that has been recommended to her son in previous years. She also asserts that Landmark is not a restrictive environment, as her son has free time to socialize with his peers. She asserts that Landmark also addresses her son's academic, social, and pragmatic deficits. Finally, petitioner asserts her son has made progress while attending Landmark.
Respondent argues an appropriate program was offered to the student because it provided an educational benefit, as the student progressed in tenth grade. Additionally, respondent asserts that even if its program is not appropriate, the program at Landmark is inappropriately overly restrictive for this student because he does not require a residential setting in order to obtain educational benefit.
The CSE held an annual review on June 17, 2003 in order to develop the student's program for the 2003-04 school year. It recommended one 40-minute session of resource room daily in a group of 5:1 (District Exhibit 3). Recommended testing accommodations included extended time, testing in a separate location with minimal distractions, use of a word processor for written exams, use of a spell check-grammar check device, directions explained, access to a highlighter to highlight key words and access to a teacher to restate directions upon student request. Recommended program modifications included preferential seating, and long-term projects broken down into manageable components and monitored closely by the resource room teacher and mainstream teachers, with parent notification of any component not completed. Additional program modifications included subject area teacher notification of the resource room teacher regarding upcoming tests and projects. If the resource room teacher did not receive prior notice from a subject area teacher regarding projects or exams, the student was to be provided anopportunity to resubmit the assignment and/or make up the exam. The CSE recommended that the student receive assistance in resource room to develop note taking skills, and that his notes be reviewed periodically by both the resource room teacher and subject area teachers. The CSE also recommended that the student be assisted in resource room to develop study guide techniques such as flash cards and outlines, and be encouraged to use highlighting and paragraph tabbing as means of annotating reading materials. The resource room teacher would also assist the student in organizing an assignment book for daily homework, and the student's teachers and his family would closely monitor homework. The CSE further recommended that the resource room teacher contact the student's parents twice a month, and that the parents would arrange meetings, when necessary, with the director of special education to review the student's program.
The hearing officer found the student's identified educational deficits and special education needs were consistent with available evaluation data, report card results, Regents exam scores and teacher reports. Further, he found these sources provided adequate detail for the CSE to develop a program tailored to address the student's needs and that respondent did offer an appropriate program for summer 2003 and the 2003-04 school year. I agree.
After reviewing the voluminous record and the hearing officer's 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, 206-07 ), whether the parents were entitled to tuition reimbursement (see Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 ; Application of a Child with a Disability, Appeal No. 00-008), and whether educational benefit was indicated in the record (Walczak v. Bd. of Educ., 142 F.3d 119, 130 [2d Cir. 1998]; Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; Application of a Child with a Disability, Appeal No. 99-055). 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]; Education Law § 4404). I, therefore, adopt the findings of fact and the determination of the hearing officer that petitioner is not entitled to tuition expenses.1 Based upon the record in this case, I find that respondent has met its burden of demonstrating that it offered an appropriate program to petitioner's child.
Because I have determined that the challenged IEP was adequate and respondent has met its burden of proving that it offered a FAPE to the student during the summer 2003 and the 2003-04 school year, petitioner is not entitled to tuition expenses and I need not reach the issue of whether or not Landmark was an appropriate placement. The necessary inquiry is at an end (M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142F. 3d at 134; Application of a Child with a Disability, Appeal No. 03-058).
I have considered petitioner's remaining contentions and found them to be without merit.
THE APPEAL IS DISMISSED.
1 Having concluded, upon my examination of the record, that I concur with the hearing officer that respondent offered petitioner's child a FAPE for the summer 2003 and 2003-04 school year, I need not address the appropriateness of the hearing officer's Orders to respondent pertaining to the 2004-05 school year.