04-024

           Petitioners appeal from the decision of an impartial hearing officer which denied their request for tuition reimbursement for the cost of their son's tuition at a private school for the 2001-02 and 2002-03 school years.  Respondent cross-appeals the hearing officer's ruling allowing a witness to testify telephonically and his determination involving transportation reimbursement.  The appeal must be dismissed.  The cross-appeal must be sustained in part.

            Initially, I must address a procedural matter.  Petitioners have submitted on appeal, and offer for my consideration, an occupational therapy (OT) evaluation dated December 27, 1999, that was not made part of the hearing record. Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision if the evidence was unavailable at the time of the hearing or when the evidence is necessary for a State Review Officer to render a decision (Application of a Child with a Disability, Appeal No. 04-020; Application of a Child with a Disability, Appeal No. 03-054; Application of the Bd. of Educ. of the Pawling Cent. Sch. Dist., Appeal No. 03-022; Application of a Child with a Disability, Appeal No. 02-098).  Although there is no assertion that the evaluation was unavailable at the time of the hearing, the evaluation is relevant to the student's special education needs, and respondent did not object to its submission in its answer. I will therefore exercise my discretion and accept the document.  

            Petitioners' son was 16 years old at the time of the hearing and attending tenth grade at Sinai Special Needs Institute (Sinai School), where his parents had unilaterally placed him for the 2001-02 and 2002-03 school years.  Sinai School is a private parochial school in New Jersey for boys with developmental disabilities and/or learning disabilities.  The Sinai School 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 is classified as speech impaired and his classification is not in dispute.  He was first identified as having a speech and language impairment when he was approximately three or four years old (Exhibit H; Transcript p. 549). 

            The student attended school in the district from pre-school through first grade (Transcript p. 692).  His mother reported that he was diagnosed with an attention deficit hyperactivity disorder (ADHD) when he was attending a special education kindergarten in the district (Transcript p. 552), and receiving related services of speech and occupational therapy (OT) (Transcript p. 553). The student subsequently attended a special education first grade in the district with the same related services he received the previous year (Transcript p. 553).  He then attended a self-contained parochial program called Community Awareness to Enlighten Adults and Children with Learning (CAHAL) (Transcript p.  27) for two years.  For third through sixth grades, the student attended the Hebrew Academy of Nassau County (Hebrew Academy) and received support services from the district.  During his attendance at Hebrew Academy, the student began to exhibit tics and make noises.  Tourette syndrome was considered, but was ruled out by the psychiatrist who was working with the student (Transcript p. 693).  When the student was in the eighth grade at the South Shore Yeshiva, the district produced a triennial report (Exhibit A) dated February 9, 2001, reflecting the results of a 2000-01 triennial evaluation.  Administration of the Wechsler Abbreviated Scale of Intelligence (WASI) yielded a verbal IQ score of 79, a performance IQ score of 74, and a full scale IQ score of 75.  These scores placed the student in the borderline range of cognitive ability (Transcript p. 59) and represented a decrease in scores when compared to results of administration of the Wechsler Intelligence Scale for Children (WISC) in January 1995. This previous testing yielded a verbal IQ score of 81, a performance IQ score of 99, and a full scale IQ score of 88 (Exhibit A).

            The student reportedly has significant delays in reading decoding, reading comprehension, written expression, fine motor skills and attention skills as well as social skills deficits which inhibit participation in age-appropriate activities (Exhibit R).  He requires instruction in a small group setting in a structured environment with minimal distractions, and frequent teacher redirection and reinforcement to stay on task.  To address his difficulty with organization and task completion, the student requires sequentially presented material, and strategies to develop self-monitoring to focus attention to detail and avoid careless errors as well as strategies to assume greater responsibility regarding school related tasks.  He also requires related services of OT and speech and language therapy to address his difficulties with handwriting and social pragmatic language skills, respectively.

            On June 11, 2001, respondent's Committee on Special Education (CSE) developed an individualized education program (IEP) for the 2001-02 school year providing for placement in a special education class at the district's West Hempstead High School with a 15:1 student to staff ratio (Exhibit H).  The IEP also provided for related services of individual OT once a week for 30 minutes and individual speech-language therapy twice a week for 30 minutes (Exhibit H).  By letter dated August 26, 2001, petitioners notified respondent that they would be unilaterally enrolling their son in the Sinai School for the 2001-02 school year and would seek reimbursement for tuition and transportation expenses (Exhibit O).  By letter dated October 2, 2001, counsel for petitioners requested an impartial hearing seeking tuition reimbursement due to an alleged failure by respondent to offer an appropriate program for the 2001-02 school year (Exhibit P).  

            On May 14, 2002, the CSE developed an IEP providing for placement in a special class at West Hempstead High School with a 15:1+1 student to staff ratio for the 2003-03 school year (Exhibit R).  The recommended class differed from the class recommended the previous year because it included a classroom aide.  The CSE also recommended the related services of individual OT twice a week for 30 minutes and individual speech-language therapy twice a week for 30 minutes.  By letter dated August 14, 2002, counsel for petitioners requested an impartial hearing seeking tuition reimbursement due to an alleged failure by respondent to offer an appropriate program for the 2002-03 school year (Hearing Officer Exhibit 5).

            On September 12, 2002, the hearing officer consolidated the two hearing requests (Hearing Officer Exhibit 5¹).  The hearing began on September 19, 2002 and testimony was heard over four days, concluding on October 22, 2002.  On February 17, 2003 the hearing officer rendered his decision.  He determined the following regarding the educational program offered for the 2001-02 school year: the June 11, 2001 CSE included the legally required members, the parents were afforded a meaningful opportunity to participate in the development of the IEP, and the offered IEP was reasonably calculated to provide educational benefit (Hearing Officer Decision p. 13).  He concluded that respondent had met its burden of proving that it had offered petitioners' son a free appropriate public education (FAPE) for the 2001-02 school year.  He further determined that petitioners did not meet their burden of showing that the private placement was appropriate (Hearing Officer Decision p. 14).  In determining that the private placement was not appropriate, the hearing officer identified three inadequacies.  He determined that the private placement did not offer needed related services of OT and speech and language therapy, and that secular academic class instruction related to the student's special education needs did not take place until after 2:00 in the afternoon, which was not consistent with his reported higher level of performance in the morning after he takes medication.  He also determined that the private school placement was not in the least restrictive environment given the distance and time away from the student’s home (Hearing Officer Decision pp. 14-15).

            The impartial hearing officer further determined the educational program offered by respondent for the 2002-03 school year was formulated by an improperly constituted CSE because the student's private school teacher was not present for the full meeting (Hearing Officer Decision p. 13).  He concluded that the 2002-03 IEP was therefore “procedurally defective” and a “nullity” (Id.).  He also found that petitioners' unilateral placement of their son at the Sinai School was inappropriate for the 2002-03 school year and denied tuition reimbursement for that year also.  The impartial hearing officer further determined there was insufficient evidence at the hearing to grant petitioners request for transportation on “an unqualified and unconditional basis” (Hearing decision p. 15).  He then determined that he would retain jurisdiction to hear the transportation reimbursement claim if the parties were unable to resolve the matter after issuance of his February 17, 2003 decision.  

            On appeal, petitioners claim the impartial hearing officer erred by determining the following: the telephonic participation by some CSE members in developing the 2001-02 and 2002-03 IEP was appropriate; the 2001-02 IEP was formulated in a manner that met the procedural requirements of the Individuals with Disabilities Education Act (IDEA); the 2001-02 IEP was substantively appropriate; the private school placement for both the 2001-02 and 2002-03 school years was inappropriate; and that petitioners are not entitled to tuition reimbursement. 

            Respondent cross-appeals claiming that the impartial hearing officer erred in allowing telephonic testimony by a witness at the hearing and by addressing petitioners’ request for transportation reimbursement.

            Respondent does not appeal the impartial hearing officers determination that respondent did not offer a FAPE to the student for the 2002-03 school year. An impartial hearing officer's decision is final and binding upon the parties unless appealed to the State Review Officer (34 C.F.R. § 300.510[a]; 8 NYCRR 200.5[i][4][ii]).  Consequently, this part of the decision is final and binding and I do not reach the issue of the propriety of that determination (Application of a Child with a Disability, Appeal No. 03-108; Application of a Child with a Disability, Appeal No. 02-100; Application of a Child with a Disability, Appeal No. 02-073).

            The purpose behind the IDEA is to ensure that children with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]).  A FAPE includes special education and related services provided in conformity with a written IEP (20 U.S.C. § 1401[8]), developed by a school district, which is tailored to meet the student's unique needs.  A board of education may be required to pay for educational services obtained for a student by his 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 School Comm. v. Dep't of Educ., 471 U.S. 359 [1985]).  The fact that the private school selected by the parents has not been approved the State Education Department is not itself a bar to reimbursement (Florence County School 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 (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]).  To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v Rowley, 458 U.S. 176, 206, 207 [1982]).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]), e.g., resulted in the loss of educational opportunity (Evans v Bd. of Educ., 930 F. Supp.83, 93-94 [S.D.N.Y. 1996]), seriously infringed on the parents' opportunity to participate in the IEP formulation process (see, W.A. v Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist, 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D. K., 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002]). As for the substantive program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]; see, Walczak, 142 F.3d at 130). 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, Question 1).

            An IEP must include measurable annual goals, with 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]).

            In New York State, a CSE must include the parent of the child, at least one regular education teacher of the child (if the child is, or may be participating in the regular education environment), at least one special education teacher of the child or, if appropriate, at least one special education provider of the child, a school psychologist, an additional parent of a student with a disability residing in the district, a representative of the school district who is qualified to provide or supervise the provision of special education, and an individual who can interpret the instructional implications of evaluation results, and persons having knowledge or special expertise regarding the student, and if appropriate, the student (34 C.F.R. § 300.344[a]; 8 NYCRR 200.3[a][1]).

            A June 1992 State Education Department field memo entitled, The Use of Teleconferencing to Ensure Participation in Meetings to Develop the Individualized Education Program (I.E.P.), provides, in pertinent part, that: "Participation in Committee meetings through teleconferencing is a permissible alternative to having all members convene in a face-to-face meeting unless the parent objects…"  The  memo further provides "…individuals who participate through teleconferencing must have access to the same material available to all others involved in this process…." This field memo does not have the force and effect of a regulation (Application of a Child Suspected of having a Disability, Appeal No. 03-063; Application of a Child with a Disability, Appeal No. 00-043),nonetheless, I find that it is consistent with the policies underlying the IDEA and Article 89 of the Education Law.  The preparation of a student's IEP by an informed multidisciplinary team is at the heart of both statutes.

           With respect to the June 11, 2001 CSE meeting and the 2001-02 IEP, I do not agree with the impartial hearing officer that the IEP was properly formulated or that the resulting IEP was reasonably calculated to provide educational benefits. The impartial hearing officer determined that the required CSE members were present during the IEP formulation process and that the telephonic participation of some members was meaningful.  At the June 11, 2001 CSE meeting an occupational therapist, the director of the CAHAL program, and a CAHAL teacher participated by telephone (Exhibit H).  The CSE Committee did include a regular education and special education teacher from the district (Exhibit H), however there is no evidence in the record that the invited personnel from the private school,  who participated by telephone, had access to the same documents available for review by the rest of the committee.  I cannot infer that the members participating by telephone had the documents in front of them.  Furthermore, testimony reveals that the CAHAL teacher's attendance by telephone was limited to ten to fifteen minutes and that her participation was constrained due to scheduling conflicts (Transcript p. 307).  Significantly, testimony by  this teacher also indicated, that although she was invited to participate, she did not have the opportunity to convey all the “important” information she had about the student to the CSE (Transcript p. 358).  Under these circumstances, I must find that respondent has failed to establish that it complied with the terms of the guidelines   for teleconferencing at the June 11, 2001 CSE meeting (Application of a Child with a Disability, Appeal No. 00-043).

           It is well established, however, that the existence of a procedural flaw in the formulation of a student's IEP does not automatically require a finding of a denial of FAPE (Application of a Child with a Disability, Appeal No. 02-015).  Rather, a denial of FAPE occurs only if the procedural violation results in a loss of educational opportunity for the child, or seriously infringes upon the parents' opportunity to participate in the process of formulating the IEP, or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (id.).  Given that student's then current teacher was unable to convey important information about the student for committee consideration, and it was not shown that members participating by telephone had necessary documents before them, I find that the IEP formulation compromised meaningful participation by all members, thereby depriving the student of educational benefits and seriously infringing upon the parents' opportunity to be fully informed and meaningfully participate in the IEP development (see 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 5).

          With respect to the 2001-02 IEP, even if it had been formulated properly, I am constrained to find that it is substantively inadequate.  In the 2001-02 IEP, the student's goals and objectives are not clearly identified as either a goal or an objective (Exhibit H).  The goals are general and do not define what is specifically expected of the student.  In the management/organizational domain, it is unclear if there is an annual goal, or if there are only short-term objectives. The individual goals are not broken down into specific manageable steps or benchmarks, which would make it difficult for a teacher or parent to develop strategies to achieve the goals or monitor progress.  Instead, this section of the IEP states that "the student will organize material," "the student will maintain organized notebooks," and that "the student will maintain an organized book bag."  Additionally, there were no reading goals and objectives that went beyond proofreading and sequencing. 

            The speech and language goals in the 2001-02 IEP lack specificity (Exhibit H). There are 22 goals/objectives listed, but no benchmarks or clear behaviors expected of the student are included to assess whether or not he achieved any level of success.  The manner in which the objectives are written is not clear and specific demonstrable behavioral expectations are not clearly defined. 

            The 2001-02 IEP states that "all goals/objectives expect an 80 percent mastery level (occupational therapy goals required 75 percent mastery), and anticipate to be achieved by June 25, 2002."  It is not clear from this statement what intermediate progress the student would have been expected to achieve. The manner in which the statement is written is not sufficient to allow a teacher to evaluate progress and conceptualize subsequent direction, to gauge need for continuance of a task, or to identify the need to adjust the student's goals.

            Modifications and accommodations are not clearly stated, nor were they consistently available to the student.  In June 2001, an occupational therapist determined that assistive technology was an unnecessary accommodation (Exhibit G).  The student's mother testified that she observed students taking notes when she visited a possible inclusion class for her son, and that note taking was inappropriate for him (Transcript p. 652).  Testimony from the director at the Sinai School indicated that the student was unable to take notes and process information at the same time (Transcript p. 410).  The 2001-02 IEP does not recommend accommodations to address this need, and should have included provision of classroom notes, a note taker, or access to assistive technology as alternatives to the physical act of writing, which would have allowed the student more time to focus on curriculum content.

            In the supplemental aids and services section of the 2001-02 IEP, reference is made to "modifications of physical arrangement" in order to provide an equal opportunity for academic success (Exhibit H). No further explanation was provided to indicate what this statement would specifically mean for the student or what a teacher might do to assist the student in this area.  The section also includes a statement that the student will have socialization opportunities.  No information is provided to explain how this recommendation would have been implemented or assessed.

           The 2001-02 IEP also states that the student will participate in the general education environment for electives.  There is no explanation of what electives were recommended by the CSE or chosen by the student.  The IEP states that the student is expected to receive a Regents diploma.  The student was not exempt from the foreign language requirement, but the record does not indicate that a foreign language was recommended, or where foreign language instruction would occur.  Specific electives such as art and music are not mentioned.  Since supplementary aids and services were inconsistent, it is not possible to determine if the student could have achieved at least some success in the regular education environment for electives if those supplemental aids and services were provided.  I therefore find that the 2001-02 IEP was not reasonably calculated to provide the student with a FAPE.

            The student's parents bear the burden of proof with regard to the appropriateness of the program for which they seek reimbursement Application of a Child with a Disability, Appeal No. 95-57; Application of the Bd. of Educ., Appeal No. 94-34). In order to meet their burden, the parents must show that the services provided met the student's special education needs (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29).  Regarding the appropriateness of the 2001-02 parental placement, I concur with the impartial hearing officer's findings and determination that the private school placement did not meet the student's special education needs and that it was not a program provided in the least restrictive environment.  There is no persuasive evidence in the record to suggest that the student's special education needs required a placement at the Sinai School.  The Sinai School director testified that the student did "reasonably well" in English, in writing strategies and in biology (Transcript p. 420).  He testified that the student did not do as well in classes involving discussion rather than just following a text.  He further testified that it takes a lot of time for the student to refocus.  The student's mother testified that her son seemed happier at the Sinai School, but did not provide any evidence of progress (Transcript p. 705).  There is insufficient persuasive evidence, whether objective or subjective, in the record to allow me to conclude that petitioners’ met their burden of showing that the program provided at Sinai School during the 2001-02 school year was appropriate to meet the student's special education needs.  Petitioners are therefore not entitled to tuition reimbursement for the 2001-02 school year.

            Regarding the appropriateness of the 2002-03 parental placement, I concur with the impartial hearing officer's findings and determination that the private school placement did not meet the student’s special education needs and that it was not a program provided in the least restrictive environment placement.  Again, the record neither reflects meaningful progress achieved by the student nor an educational program meeting his educational needs at the Sinai School.  The director of the Sinai School testified about the ways in which the school measures progress (Transcript p. 391).  He testified that one way to measure progress was to look to the IEP that was developed by CAHAL with the parents and student at the beginning of the year to determine whether the student achieved the goals.  However, the specific IEP to which the director referred in his testimony is not in the record, and he does not testify as to other methods of measuring progress.  There are no report cards or progress reports from Sinai in the record for either school year in question.

            Testimony provided by a teacher at the Sinai School who taught English and writing strategies to the student described the student and his extensive deficits  (Transcript pp. 455-58).  The teacher testified to the student's progress anecdotally, "…his sentence writing has improved because my writing class is very structured and each of my classes continue with that structure.  He is getting better at knowing what to do when he comes into class to get ready for class."  (Transcript pp. 459-60).  The teacher estimated the student's performance to be at the sixth or seventh grade level (Transcript p. 462), but there is no objective evidence in the record to indicate if her estimate was accurate or from which to measure progress.

            The student does not receive OT at the private school.  The director of the Sinai School testified that he was aware that the district recommended the student receive OT, and was unaware if the student received this therapy privately (Transcript p. 400).  The student did receive speech and language twice a week at Sinai School (Transcript p. 408), but the record does not indicate if this was a class called speech and language or if it was speech-language therapy delivered by a speech-language therapist. 

            There is insufficient persuasive evidence, whether objective or subjective, in the record to allow me to conclude that petitioners' met their burden of showing that the program provided at Sinai School during the 2002-03 school year was appropriate to meet the student’s special education needs.  Petitioners are therefore not entitled to tuition reimbursement for the 2002-03 school year.

            Respondent cross-appeals the hearing officer's determination pertaining to transportation.  I agree with respondent that the impartial hearing officer should not have made a determination about transportation without having a more fully developed record on this issue.  Petitioners did seek reimbursement for transportation expenses in their hearing request (Exhibit O).  The impartial hearing officer determined, and I concur, that there was insufficient information at the hearing to determine whether transportation expenses should be awarded to petitioner.  An impartial hearing officer must ensure that there is an adequate record upon which to premise his or her decision and permit meaningful review of the issues (Application of a Child with a Disability, Appeal No. 02-003; Application of a Child with a Disability, Appeal No. 01-087).  In this matter, there simply insufficient evidentiary support in the record for the hearing officer to address transportation expenses (Application by the Bd. of Educ. of the City School District of New York City, Appeal No. 03-001).  Therefore I annul the impartial hearing officer's determination with regard to transportation and I also find that the impartial hearing officer erred by retaining jurisdiction over possible subsequent disputes pertaining to transportation expenses, and I annul this determination as well.  It is well settled that there is no authority for an impartial hearing officer to generally assume jurisdiction with respect to all matters reportedly arising from the implementation of the hearing officer's decision, or with respect to any future dispute between the parties (Application of the Bd. of Educ. of the Pawling Cent. Sch. Dist., Appeal No. 03-105; Application of the Bd. of Educ. of the Monticello Cent. Sch. Dist., Appeal No. 02-081; Application of the Bd. of Educ. of the Springfield-Griffith Institute Cent. Sch. Dist., Appeal No. 02-008. 

            I have considered petitioners' remaining contentions and find them without merit.  I also have considered respondents remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the impartial hearing officer's decision is annulled to the extent that a determination regarding transportation expenses was made and jurisdiction retained.