04-029

            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 2003-04 school year.  Respondent cross-appeals the hearing officer's determination that the district did not offer a free appropriate public education (FAPE) to the student and that the private placement was appropriate.  The appeal must be dismissed.  The cross-appeal must be dismissed.

            Petitioners' son was 17 years old at the time of the hearing and in his third year at the Sinai Special Needs Institute (Sinai School) (Transcript p. 396).  The Sinai School has not been approved by the New York State Education Department as a school with which school districts may contract to serve students with disabilities.  A history of the student's educational background can be found in Application of a Child with a Disability, Appeal No. 04-024, which involved petitioners' claim for tuition reimbursement at the Sinai School for the 2001-02 and 2002-03 school years.  Familiarity with the facts in that decision will be assumed and not discussed in detail.  This appeal involves a dispute over tuition reimbursement for the 2003-04 school year.

            The student remains classified speech impaired and his classification is not in dispute.  The student displays needs similar to those outlined in my prior review in Application of a Child with a Disability, Appeal No. 04-024.  The student reportedly still has delays in reading decoding, reading comprehension, written expression, fine motor skills and attention skills, as well as social deficits (District Exhibit 2).  He requires instruction in a small group setting in a structured environment with minimal distractions, frequent teacher redirection and reinforcement to stay on task.  He also requires related services of counseling, occupational therapy (OT) and speech-language therapy to address his difficulties with social interaction, handwriting and social pragmatic language skills (District Exhibit 2).

            On May 15, 2003 respondent's Committee on Special Education (CSE) developed an individualized education program (IEP) for the 2003-04 school year providing for placement in a non-integrated special class at the West Hempstead High School with an unspecified student-to-staff ratio (District Exhibit 2).  The IEP also provided for related services of individual counseling once a week for 30 minutes, individual OT twice a week for 30 minutes and individual speech-language therapy twice a week for 30 minutes. Recommended testing accommodations included having directions explained, receiving extended time (1.5), use of a calculator, administration of tests in a small group, and use of a computer.  Recommended program modifications included refocusing and redirecting the student, re-teaching of material, and allowing use of a computer.  By letter dated November 4, 2003, counsel for petitioners requested an impartial hearing seeking tuition reimbursement due to an alleged failure by respondent to offer an appropriate special education program and related services for the 2003-04 school year (District Exhibit 23).

            The hearing began on January 30, 2004 and testimony was heard over four days, concluding on February 25, 2004.  On April 20, 2004, the hearing officer rendered his decision.  He determined the following regarding the educational program offered for the 2003-04 school year: the May 15, 2003 CSE did not include the legally required members; the CSE failed to update the evaluations and reports to measure the student's current level of performance; the district failed to conduct an appropriate functional behavioral assessment (FBA) of the student or develop an appropriate behavioral intervention plan (BIP), or conduct an assistive technology assessment; the IEP did not list measurable annual goals or contain an appropriate transition plan; and the district failed to develop an IEP that was reasonably calculated to provide a FAPE to the student.  He further determined that the Sinai School placement was appropriate and it provided the student with an opportunity to benefit from his education in the least restrictive environment (LRE).  He also determined that petitioners' claim was not supported by equitable considerations because petitioners did not object to the recommended placement at the CSE meeting, signed the district's form acknowledging acceptance of the IEP, did not provide the district with a neuropsychological report the parents independently obtained, and did not notify the district of their objection to the IEP until after the school year began and had re-enrolled their son at the Sinai School for the 2003-04 school year.

            On appeal, petitioners claim that equitable considerations did not warrant a complete denial of tuition reimbursement. 

            Respondent cross-appeals, claiming that the impartial hearing officer erred in finding the following:  the district's IEP was not reasonably calculated to offer a FAPE to the student; the CSE meeting was improperly composed; the district failed to update reports and evaluations to measure the student's current level of performance; the district failed to conduct an assistive technology assessment, an appropriate FBA, and BIP; the IEP did not contain measurable goals; the IEP did not include an appropriate transition plan; and finally, that petitioners' private placement at the Sinai School was appropriate and provided the student with an opportunity to benefit from his education in the LRE.

            The purpose behind the Individuals with Disabilities Education Act (IDEA) is to ensure that children with disabilities have available to them a free appropriate public education (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]) 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]).

            The hearing officer determined that the development of the 2003-04 IEP at the May 15, 2003 CSE meeting was procedurally flawed because a speech language therapist was not in attendance.  The hearing officer found that because the student is classified as speech impaired, respondent should have invited a speech language therapist to participate in the IEP formulation as a member having knowledge or special expertise regarding the student (34 C.F.R. § 300.344[a]; 8 NYCRR 200.3 [a][1][ix]).  Under the circumstances here, I agree.

            I concur with the hearing officer's finding that the CSE did not have available to it the data, reports, or other information to determine the student's needs, educational progress and achievement, ability to participate in regular instructional programs, and continuing eligibility for special education.  The record before me reflects that little objective evaluative or assessment data was created between the June 11, 2001 and May 14, 2002 CSE meetings, which were the subjects of Appeal No. 04-024, and the May 15, 2003 CSE meeting which is the subject of this appeal. In comparing the IEP for 2003-04 (District Exhibit 2) and the IEP for 2002-03 (District Exhibit 9), new subjective information considered at the May 15, 2003 CSE meeting was noted in a classroom observation dated March 14, 2003 (District Exhibits 13, 14), a teacher report also dated March 14, 2003 (District Exhibit 17), the student's mid-semester progress reports dated between February 2003 and March 2003 (District Exhibit 8), a vocational assessment student questionnaire dated March 14, 2003 (District Exhibit 19), an FBA dated May 12, 2003 (District Exhibit 15), and a BIP dated May 12, 2003 (District Exhibit 16).  Yet, the record does not demonstrate that either respondent or the Sinai School tested the student either formally or informally, in preparation for the CSE meeting on May 15, 2003, to determine what the student had learned during the 2003-04 school year as related to his identified areas of need.  Testimony by the director of the boys high school at the Sinai School indicated that the Sinai School has never performed any formal testing with the student (Transcript p. 572).  The standardized test results considered by the CSE in developing the student's current IEP are from 2001 and 2002.  The CSE chairperson testified that the district did not receive any data from the Sinai School about the student's progress (Transcript pp. 108-09).  The CSE chairperson also testified that the student made significant progress (Transcript p. 108). Aside from a report card from the 2002-03 school year (District Exhibit 25), the record supplies anecdotal remarks or opinions that the student progressed (Transcript p. 108), but does not demonstrate this progress with any objectivity.  In fact, the record offers contradictory information. The student was passing all of his courses at the time of the CSE meeting (Transcript p. 108), but the CSE's 2003-04 IEP (District Exhibit 2) continued to describe him as performing below appropriate age expectations regarding his cognitive abilities, academic levels, social skills, problem-solving, fine motor and organizational skills.  The student's reading and written language skills needed continued work. In consideration of all of his needs and the anecdotally reported (District Exhibits 2, 8, 25) progress that the student was making, it appears that additional objective testing would have been appropriate for the student in order for the CSE to determine and define his educational progress and achievement.  In addition, if the student was actually making progress, it is unclear why the IEPs developed for the 2002-03 and the 2003-04 school years were essentially the same except for the addition of the domain of "Study Skills" in the 2003-04 IEP, and the deletion of math goals and objectives (District Exhibits 2, 9).

            I concur with the hearing officer's finding that the district failed to conduct an appropriate FBA or develop an appropriate BIP (8 NYCRR 200.1[r]; 8 NYCRR 200.4[d][3]).  The FBA is inadequate (District Exhibit 15).  The FBA provides no meaningful description of the actual behavior(s) the student exhibits that result in his missing instruction or distracting peers.  Part two of the FBA form attempts to address how the behavior(s) functionally serve and reinforce the student.  No useful information is provided on the assessment that could subsequently be used in developing the BIP. The student's BIP grossly defines the off task behavior as "Student has difficulty attending in class" (District Exhibit 16).  The expected outcome of the BIP is grossly defined as "Student to improve ability to attend in class."  The FBA offers no specific behaviors that the student demonstrates to characterize his distractibility.  The BIP offers no specific target behaviors that the student would be projected to demonstrate to indicate that he was improving specific attending skills (for example, sitting up straight at desk, eyes on teacher and materials).  Instead, the interventions and the frequency of intervention indicate the need to chart off task behavior, monitor impact of new medication, and parent contact.  The FBA includes a section on the frequency of off task behavior.  In the current FBA, the behavior was described as occurring "periodically."  The charting of off task behavior per the BIP should have been included in the FBA, because the initial data collected during an assessment could be used as the basis for identifying the off task behavior to be addressed and subsequent intervention.  The BIP provided no useful behavioral intervention or consequence for teachers to offer the student.  I also concur with the hearing officer's finding that the district failed to conduct an assistive technology assessment in preparation for the May 15, 2003 CSE meeting.  Without the evaluation, the IEP recommends the student use a computer as a program modification.  Subsequently, an assistive technology assessment was conducted in October 2003 which recommended a DANA note taker/organizer which uses Palm OS as its operating system (Parent Exhibit 8).

            I concur with the hearing officer's determination that the IEP does not list measurable annual goals consistent with the student's needs and abilities.  The IEP for the 2003-04 school year contains only one new goal (District Exhibit 2).  Under the domain of "Study Skills" the new goal states that the student will "Demonstrate an improvement in organization, study skills and learning strategies necessary to progress toward achieving the learning standards."  The four short-term objectives relating to the goal include:  "Organize and record all school assignments in the appropriate notebook or assignment book with 60 percent mastery, evaluated by utilizing recorded observations, as assessed by the special education teacher/general teacher by June 15;" "Demonstrate the ability to analyze tasks into components in order to complete the task (e.g. task analysis) with 80 percent mastery, evaluated by utilizing recorded observations, as assessed by the special education teacher/general teacher by June 15;" "Use compensatory learning strategies (e.g. tape recorder, computer, note-taker, highlighter, graph paper) with 70 percent mastery, evaluated by utilizing recorded observations, as assessed by the special education teacher/general teacher by June 15;" "Demonstrate the ability to transfer knowledge and skills to similar situations with 80 percent mastery, evaluated by utilizing recorded observations, as assessed by the special education teacher/general teacher by June 15."  The goal is not measurable.  The short-term objectives do relate to the goal, but provide no concrete information as to what the student would specifically need to demonstrate to prove that he was organizing assignments, analyzing tasks into components or transferring knowledge and skills to similar situations.  It is unclear for teachers who would be implementing the IEP, as well as for the parents who are hoping to see their child make progress, how or when the student would use compensatory learning strategies.  The tape recorder, computer, note-taker, highlighter, and graph paper are all accommodations.  Except for the use of a computer, the other items are not listed as accommodations on the IEP.  It is also vague whether the note-taker is a person or a word processor.  The 2003-04 IEP (District Exhibit 2) contains no math goals, although the 2002-03 IEP (District Exhibit 9) did contain math goals.  The district's former CSE chairperson testified that the math goal was removed based in part on a report written by the student's eighth grade teacher (District Exhibit 12).  However, testimony by the Sinai School staff (Transcript pp. 517, 580) also indicates that the student was switched from algebra 2 to consumer math because he was having difficulty with the material.  The district's speech-language pathologist testified that the student's language deficiencies regarding problem solving could carry over to math word problems (Transcript p. 311).  The parents' testimony confirms the student's difficulties in reading word problems (Transcript p. 419).  The remainder of the domain areas of reading, writing, speech and language, social/emotional, motor, and career and vocational activities contain the same goals and objectives for 2003-04 as the IEPs for the previous two years.  All goals/objectives expect either 75 percent or 80 percent mastery level, and anticipate to be mastered by the middle or end of the school year.  There is no indication for staff, parents, or the student, regarding what intermediate progress the student is expected to achieve.  As written, it would be difficult for all of the parties involved in the implementation and receipt of services noted on this IEP, to evaluate progress and conceptualize subsequent direction, gauge need for continuance of a task, or the need to re-adjust the student's goal areas. 

           I concur with the hearing officer's determination that the 2003-04 IEP does not include an appropriate transition plan.  The IEP (District Exhibit 2) indicates that the student should participate in assorted activities to plan for post-secondary education or training.  The same statements are noted in the previous year's IEP (District Exhibit 9). The district did not develop transition services from one school year to the next.  Except for a vocational assessment student questionnaire (District Exhibit 19) completed by the district's psychologist (Transcript p. 223), the record does not reflect for this 17 year old student, specific projected outcomes based on the student's needs, preferences, and interests, in the areas of employment, post-secondary education, community living, and a statement of the needed transition services required by regulation (8 NYCRR 200.4[d][2][ix]), including a statement of the responsibilities of the school district, and when applicable, participating agencies for the provision of such services and activities that promote movement from school to post-school opportunities, or both, before the student leaves the school setting. Testimony by the school psychologist indicates that he had knowledge of what could be done with the student as part of transition planning (Transcript pp. 224-228).

           The record reflects procedural and substantive inadequacies to such an extent that respondent failed to demonstrate that it offered the student a FAPE for the 2003-04 school year.

            I concur with the hearing officer's determination that the placement at the Sinai School was appropriate and provided the student with the opportunity to benefit from his education in the LRE.  The burden of demonstrating placement in an appropriate setting was met by the parents in this appeal, unlike Application of a Child with a Disability, Appeal No. 04-024, which contained sparse information concerning the student's private school placement.  Here, the parents provided ample evidence that the Sinai School was an appropriate placement.  Testimony by the director of the boys high school program at the Sinai School indicated that the Sinai School met the student's needs for the 2003-04 school year.  The Sinai School consists of 26 students (Transcript p. 484).  There are two groups; one group of students has learning disabilities (grades 9-12) (Transcript p. 486) and the other students have developmental disabilities and are ungraded (Transcript p. 486).  The director testified that, "The program is designed to afford those students at least at the very most minimal end of integration and mainstreaming, opportunities at a social level, breakfast, lunch, gym, sporting activities, and cultural activities, and then depending on the student's academic ability as to how much we can mainstream them into available classes" (Transcript pp. 484-485).  The largest class has eight students. Some classes are 1:1 depending on the subject and the student's needs (Transcript p. 485).  The Sinai School tries to mirror what is taught in New Jersey high schools, so that students can graduate with a diploma recognized by the New Jersey Board of Education (Transcript p. 485).  Schedules are set up individually and different levels of subject matter may be taught at the same time (Transcript pp. 485-486). 

            The director of the Sinai School testified that he is familiar with the student (Transcript p. 486).  The Sinai School maintains a student file containing health records, personal and emergency details, copies of evaluations and reports, the district's IEP, the IEP created by the Sinai School, progress reports, report cards, and correspondence (Transcript pp. 487-88).  The director testified about the way in which the student's attention and language deficits cumulatively affect and impact upon the student across domain areas (Transcript pp. 500-07).  The Sinai School also used the neuropsychological evaluation in developing the student's program (Transcript p. 508).  In developing the Sinai School IEP (Parents Exhibit 7) on October 9, 2003 for the 2003-04 school year, the director testified that the curriculum in the mainstream program and each individual student's needs are considered so that both concept and skill can be covered. Critical thinking is also considered in generating goals (Transcript p. 515).  Speech and language and leadership/self-esteem areas are included within the Sinai School IEP (Transcript p. 517).  The Sinai School IEP is shared with teachers via access to the students' files, and staff meetings twice weekly where students are discussed so that changes can be made if necessary. IEPs are updated at a minimum, three times per year (Transcript pp. 518-19).  The Sinai School IEP contains math goals (Transcript p. 520).  The student's schedule for 11th grade (Parents Exhibit 8) is consistent with the director's testimony that the student takes physical science, history, math, English (literature), English (strategies of writing), and gym classes.  He also has a vocational program.  He receives speech and language four times per week and counseling once a week (Transcript p. 522).  Speech and language is on a 1:1 basis. Counseling is delivered individually and in a small group (4:1). Other student-to-teacher ratios include:  math (3:1), physical science (7:1+1), English (literature) (7:1+1), English (writing) (4:1), and history (4:1) (Transcript pp. 524-25).  Gym activities include basketball, soccer, softball and some calisthenics.  The gym teacher directs the students' interactions with each other to build self-esteem (Transcript p. 525).  The student is in a structured cooking club as an extra-curricular activity.  The student is exposed to shopping, purchasing, preparing an actual meal (a pre-Thanksgiving meal) and working within a group (Transcript p. 526). Classroom strategies used include: the student's use of a laptop in order to take notes without having to write and to help him focus (Transcript p. 528); the student is allowed to take a five-minute break when he gets upset.  Chronologically, the students in the class are the same age (Transcript p. 529).

             Testimony by the Sinai School director indicates that the student has made progress in his ability to control his behavior and his impulsivity. In addition, the student made academic advances in terms of knowledge, gains as indicated by testing in the various classrooms in terms of the various subjects that he has completed, and made maturational gains (Transcript p. 546).  Progress reports from the Sinai School dated December 8, 2003 indicate work for all subjects to be in the A, B, or C range (District Exhibit 25). Updates on the Sinai School IEP goals and objectives indicate that the student mastered objectives, or demonstrated progress in his subjects.  The student's parent testified that through use of the computer and laptop the student could write paragraphs, answer questions, and take notes. "As an added bonus, because of the attention deficit and staring at a screen, it does keep him drawn into the content of the classroom material…" (Transcript p. 418).

             Testimony by the parent indicated that the vocational services are integrated into every year of high school at the Sinai School, and that she feels that the vocational component is important for the student (Transcript p. 416).  Testimony by the high school director indicates that the Sinai School helps students plan for what they will be doing when they leave school.  The role of the director of transition services is to work with the student through identifying possible goals and interests for careers or college, if that is the direction they are taking.  The transition services director looks at the students' strengths and their abilities and will help them discuss where they are heading towards at the end of school.  In addition, the academic director works with parents to determine vocational opportunities in order to foster work experience, punctuality, and an understanding of the world of work (Transcript p. 553).  The student is a volunteer in a hospital every Friday morning (Transcript p. 429). 

              The Sinai School placement is not overly restrictive.  The student's parent testified that the student has friends with whom he socializes in and out of school (Transcript p. 429). Mainstream opportunities are available at lunchtime.  The student can participate with the general school population.  He can go out to lunch at local fast food restaurants with other students, and there are mainstream sports activities (Transcript pp. 526-27).  Additionally, the student is on the basketball team and in a cooking class (Transcript p. 431).

              I concur with the hearing officer's determination that the student's program at the Sinai School meets the student's needs and that petitioners' have met their burden of demonstrating the appropriateness of the private school placement. 

              Petitioners next contend that the equitable considerations support their request for tuition requirement.  I do not agree.  I concur with the hearing officer's determination that petitioners did not notify respondent until after the start of the 2003-04 school year, more than five months after the May 15, 2003 CSE meeting, that they intended to enroll their son at the Sinai School at public expense.  In addition, I find that petitioners' failure to provide respondent with a copy of a report from a private neuropsychological evaluation conducted in January 2003 (Parents Exhibit 2) compromised the ability of the May 15, 2003 CSE to develop an appropriate IEP.  The report contained significant information regarding the student's “difficulties with phonologic processing that likely have impeded [the student's] ability to master a phonics based word attack strategy for reading, so that at this time, reading mechanics yet remain poorly mastered for current grade placement.”  The report further notes, “in part, problems with reading comprehension are the direct result of inefficient mechanical reading skill mastery, with difficulties in reading comprehension also tied to generalized contextual memory problems.  Continuing efforts to improve reading skills via structured, phonics based reading comprehension are advised.”  I find that this information would have assisted the May 15, 2003 CSE in developing an appropriate program. I find that petitioners' failure to notify respondent in a timely manner of the intent to seek tuition reimbursement along with their failure to provide the neuropsychological evaluation report, which impeded the development of an appropriate IEP, precludes an award of tuition reimbursement to petitioners.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.