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Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Arlington Central School District


Family Advocates, Inc., attorney for petitioners, RosaLee Charpentier, Esq., of counsel

Kuntz, Spagnuolo, Scapoli & Schiro, P.C., attorney for respondent, Jeffrey J. Schiro, Esq., of counsel


          Petitioners appeal from the decision of an impartial hearing officer which denied their request for tuition reimbursement for their son's tuition at a private school for the 2003-04 school year.  The hearing officer determined that respondent, the Board of Education of the Arlington Central School District, offered to provide the student with a free appropriate public education (FAPE) during that school year.  The appeal must be dismissed.

            Petitioners' son was ten years old at the time of the hearing and attending fifth grade at the Kildonan School (Kildonan), where his parents unilaterally placed him for the 2003-04 school year.  Kildonan is a private school for children with language-based learning disabilities (Transcript p. 804).  Kildonan 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.  The student's classification by the Committee on Special Education (CSE) as learning disabled is not in dispute.

             A review of the student's educational history is helpful in putting the current disagreement over the 2003-04 educational program in context.  The educational history is one of extensive involvement by the parents and school personnel in fashioning educational programs for petitioners' son, and demonstrates a willingness by the CSE to respond positively to input from the parents, conduct additional evaluations, hold multiple CSE meetings, and modify special education programming and services as needed.

            Petitioners' son attended public school in respondent's district from kindergarten in 1998-99 through fourth grade in 2002-03.  He received early intervention reading support three times a week in kindergarten, and attended summer school following kindergarten (Exhibit 58).  During the 1999-2000 school year, when the student was in first grade, he received early intervention individual reading support outside of the classroom five days a week, and his classroom teacher provided small group reading instruction daily as well as individual reading and math instruction twice a week (Exhibit 58).  It was during first grade that the student was first referred to a CSE for an initial evaluation as a student suspected of having a disability (Exhibit 58).

            As a result of the referral to the CSE for an eligibility determination for special education programs and services, a number of evaluations were conducted during the first grade year.  A psychoeducational evaluation was conducted on various dates between March 2000 and May 2000 (Exhibit 58).  Administration of the Wechsler Intelligence Scale for Children-Third Edition (WISC-III) yielded a verbal IQ score of 90 (25th percentile), a performance IQ score of 75 (5th percentile), and a full scale IQ score of 81 (10th percentile, low average range) (Exhibit 58).  The student's scores on the Beery-Buktenica Test of Visual Motor Integration were in the average range for visual perception, visual-motor integration and motor coordination (Exhibit 58).  On the Woodcock Johnson Tests of Achievement–Revised (Woodcock-Johnson), the student achieved standard (and percentile) scores of 67 (1st) for a Broad Reading, 78 (7th) for Broad Math and 74 (4th) for Broad Written Language (Exhibit 58).  His teacher reported that the student had a limited sight vocabulary and was unable to count (Exhibit 58).  Behavior rating scales completed by the mother and the classroom teacher indicated inattentive behavior both at school and at home (Exhibit 58).

            The CSE convened on August 29, 2000, determined that the student required special services and programs, and recommended that the student be classified as a student with a learning disability.  For the 2000-01 school year, the CSE recommended second grade placement in a 12:1+1 special class for two hours a day at the district's Traver Road Primary School to address the student's educational difficulties in language arts, reading, and math (Exhibit 53).  On December 7, 2000, the CSE reconvened to add an additional hour each day in the recommended 12:1+1 special class (Exhibit 49).  The CSE also recommended an occupational therapy (OT) evaluation because of the student's difficulties in forming letters and organizing his work.  This evaluation was declined by the parents with a request that it be considered in the future (Exhibit 49).  CSE meeting minutes describe the student as having significant "difficulties with basic skill acquisition in reading, writing and math" with average verbal ability and borderline visual-motor ability (Exhibit 49).  The minutes also note that the student had been diagnosed with attention deficit hyperactivity disorder (ADHD).

            When the Woodcock-Johnson was re-administered near the end of first grade on May 4, 2001, the student achieved a Broad Reading score of 88 (21st), a Broad Math score of 100 (50th) and a Broad Written Language score of 94 (34th) (Exhibit 47).  At the student's annual review on May 31, 2001, the CSE recommended placement for the 2001-02 school year in third grade at the district's Joseph D'Aquanni West Road School (West Road), continuation in a 12:1+1 special class for 2 1/2 hours per day, plus an additional 30 minutes per day in a resource room and an OT evaluation (Exhibit 43). 

            The recommended OT evaluation was conducted on June 15, 2001 (Exhibit 42).  Administration of the Developmental Test of Visual Perception identified poor perceptual skills and visual motor integration skills in the below average range as well as difficulties with motor planning and bilateral coordination (Exhibit 42).  The occupational therapist noted that the student demonstrated delays in his visual perceptual skills, had some difficulty writing upper and lower case letters from memory, had poor letter formation, and confused the cases of letters (Exhibit 42).  The therapist recommended occupational therapy services twice a week, with one 30-minute session on an individual basis in a special location and the other 30-minute session in a group setting in the classroom (Exhibit 42).  The CSE convened on November 9, 2001 to review the OT evaluation and recommended 30-minute OT services once per week on an individual basis and once per week in a small group (Exhibit 34).  Goals and objectives were developed to address visual motor coordination, visual perception, bilateral coordination and handwriting (Exhibit 34).

            In October 2001, the student's parents obtained a private speech-language evaluation that identified weaknesses in the student's ability to follow verbal directions involving multiple concepts (Exhibit 37).  The evaluator recommended speech-language therapy and a central auditory processing evaluation (CAPE).  A CAPE performed on November 7, 2001 identified an auditory processing disorder affecting speech-sound processing (Exhibit 31).  The evaluator noted that this deficit affected decoding, auditory memory and auditory closure.  The evaluator's recommendations included therapy to remediate auditory processing weaknesses and to improve auditory memory, and a trial with an auditory trainer (Exhibit 31).  The CSE convened on January 11, 2002 to review the reports from the October and November evaluations and, in response, recommended discontinuation of resource room services, an increase of time in the student's 12:1+1 special class placement from 2 1/2 hours to 3 hours per day, and individual speech-language therapy once per week for 30 minutes (Exhibit 28).  Goals and objectives were developed to address auditory discrimination, auditory memory and following verbal directions.  A trial with an auditory trainer was also recommended (Exhibit 28).  The CSE met for the fourth time concerning the 2001-02 school year program on February 25, 2002 and increased the student's speech-language therapy to two 30-minute individual sessions per week to address his auditory processing deficits (Exhibit 26).

            An independent neuropsychological evaluation was conducted in March 2002 (Exhibit 24).  Administration of the WISC-III yielded a verbal IQ score of 110 (75th percentile) a performance IQ score of 89 (23rd percentile) and a full scale IQ score of 99 (47th percentile) (Exhibit 24).1  While the student's full scale score was in the average range, results compared to earlier testing indicated a significantly wider discrepancy between verbal and performance sores.  Administration of the Woodcock-Johnson revealed a decrease in scores for Broad Reading (standard score 83, 13th percentile), Broad Math (standard score 84, 14th percentile) and Broad Written Language (standard score 80, 9th percentile) (Exhibit 24).  The evaluator noted that the student was taking medication for ADHD at the time of the evaluation (Exhibit 24) and a subsequent report by another evaluator noted that the medication the student was taking in March 2002 was discontinued three months later because of poor response (Exhibit 3).

           The neuropsychologist reported relative strengths in verbal reasoning and weaknesses in speed of information processing, visuospatial abilities, and ability to plan, organize and sequence tasks (Exhibit 24).  Projective testing revealed poor self-esteem related to difficulties with academic achievement (Exhibit 24).  The neuropsychologist recommended continuation in special education services, an inclusion setting, speech-language therapy, phonics instructional approaches to teach converting letters to sounds and blending sounds to form words, assignments broken into smaller units, assistance in developing organizational strategies, oral presentation of written material such as books on tape, use of a computer with a word processor, and pacing and frequent breaks as well as extra time to complete assignments and to check and self-correct his work (Exhibit 24).

            The CSE convened on August 16, 2002 for the student's annual review to develop an individualized education program (IEP) for the student's 2002-03 school year (Exhibit 20).  It recommended continuation in a 12:1+1 special class three hours per week for fourth grade and continuation of OT and speech-language therapies at the same frequency as in the 2001-02 school year.  The CSE reviewed the March 2002 neruropsychological evaluation report and incorporated report recommendations into the student's IEP (Exhibit 20).  The CSE reconvened on September 20, 2002 in response to the parents' request for a coordinated communication system for school staff, parents and the student's private tutor (Exhibit 14).  The CSE reconvened again on December 17, 2002 to review the student's progress and recommended an assistive technology evaluation and questions read to the student as a testing accommodation (Exhibit 10). 

            The assistive technology evaluation was conducted on February 25, 2003 (Exhibit 6).  Recommendations included software to improve typing speed, OT to monitor touch-typing skills and consideration of spell-check software that reads selections aloud.  Because of the student's young age, continuation of handwriting practice was recommended (Exhibit 6). 

            A speech-language evaluation conducted on various dates between April 2003 and May 2003 identified overall speech-language scores within normal limits with relative weakness in sentence formulation, naming items in a category, and rapid naming of symbols, colors and objects (Exhibit 8).  A Woodcock-Johnson administered on May 12, 2003 revealed a further decline in subtest scores for Broad Reading (standard score 79, 8th percentile), Broad Math (standard score 72, 3rd percentile) and Broad Written Language (standard score 78, 7th percentile) (see Exhibits 4, 61).

            The CSE convened on May 16, 2003 to develop the student's 2003-04 IEP for his fifth grade year and recommended continuation of 12:1+1 special class and related services at the same rate as in the previous school year (Exhibit 4).  Speech-language therapy was changed from individual to small group to allow for carryover of skills learned the previous year (Transcript pp. 463-64).  The CSE developed goals and objectives which specifically addressed the relative weaknesses identified in the February 2003 speech-language evaluation (Exhibit 4).  The CSE alsorecommended purchase of the software and implementation of the strategies included in the February 2003 assistive technology report.  To address reading, math, written language and organizational deficits, goals and objectives were expanded and revised to include more specific, lower level skills.  Social/emotional goals and objectives were added to address identified difficulties with self-esteem (Exhibit 4).  Additionally, the CSE recommended extended year services of a special education itinerant teacher three times per week, one-hour individual sessions, for the summer of 2003 (Exhibit 4).  The parents subsequently declined summer services (Exhibit 2; Transcript pp. 53-54).

            By letter dated August 17, 2003, petitioners requested an impartial hearing seeking tuition reimbursement due to an alleged failure by respondent to offer an appropriate program for the 2003-04 school year (Hearing Officer Exhibit 4).  The hearing began on October 15, 2003 and testimony was heard over seven days, concluding on March 4, 2004.  The hearing officer rendered his decision on April 20, 2004 and determined that respondent offered an appropriate program.  The hearing officer denied petitioners' request to be reimbursed for the cost of their son's tuition at Kildonan for the 2003-04 school year. 

            On appeal, petitioners claim the impartial hearing officer erred in denying tuition reimbursement and allege that the student was denied a FAPE because the 2003-04 IEP was both procedurally and substantively flawed. 

            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]), 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 (seeW.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]; seeWalczak, 142 F.3d at 130). The program recommended by the CSE must also be provided in the least restrictive environment (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]).

            I will first address petitioners' claim of three "procedural" violations in the formulation of the May 16, 2003 IEP that they allege resulted in a denial of FAPE.  Petitioners first allege that they were excluded from fully participating in the IEP formulation because the May 16, 2003 CSE did not have available or consider the student's final school year quarterly progress report.  The parents did not receive a written final quarterly report on student progress on 2002-03 goals and objectives until June 1, 2003, two weeks after the 2003-04 IEP was developed (Exhibit A).  In its memorandum of law, respondent asserts that the CSE's annual review pre-dated the issuance of the final quarterly progress report and that the first three quarterly progress reports were considered at the meeting, providing adequate information upon which to determine programming.  I am not persuaded by petitioners' argument.  The student's regular education and special education teacher were both present at the May 16, 2003 meeting, as were the parents, and meeting minutes indicate that both teachers reported on the student's current progress (Exhibit 4).  The CSE chairperson testified that at the CSE meeting the special education teacher provided a summary report on progress towards goals and objectives, and that while the meeting was in progress the chairperson entered this information into a data base for the student on a laptop computer (Transcript p. 213).  I find that petitioners participated in the CSE meeting and at that meeting received current educational progress reports.  I cannot conclude that they were excluded from meaningfully participating in the IEP development merely because a subsequent quarterly report was issued.  

            Petitioners raise another claim they assert is a procedural violation.  They claim that the CSE lacked objective data from which to determine the student's present performance levels.  I am also not persuaded by this argument.  In addition to hearing verbal reports from the regular and special education teachers, the CSE reviewed an assistive technology evaluation report dated February 12, 2003, an OT progress summary dated April 15, 2003, a speech-language progress summary dated May 9, 2003, and an educational evaluation report dated May 12, 2003.  Standardized test scores from the OT, speech-language and educational evaluations were included on the student's IEP (Exhibit 4).  In addition, the IEP contained a detailed behavioral description of the student's computer software needs as identified by the assistive technology evaluation (Exhibit 4).  I find that the CSE had sufficient current evaluative information with which to adequately identify progress and levels of performance, and to make needed adjustments to the students IEP goals and objectives. 

            Petitioners further assert that the manner in which the special education teacher assessed progress on goals and objectives was improper.  In testimony regarding the 2002-03 school year, the special education teacher gave specific examples of how she obtained input from the general education teacher when completing progress reports (Transcript p. 312), used charts to monitor and document work performed by the student (Transcript p. 316), and supplemented her reports of student progress on IEP objectives with anecdotal comments (Transcript pp. 312-15).  She described a classroom clipboard she used to monitor the student's daily progress on assignments (Transcript p. 345), and explained that she checked off complete and incomplete assignments and documented this information in her grade book (Transcript p. 346).  The special education teacher testified that she based assessment of progress on classroom tests and on work the student performed in the classroom (Transcript p. 360), and indicated that she kept "meticulous records" (Transcript p. 361).  Based upon the evidence of use of both objective and subjective data to measure progress as described in the record, I cannot conclude that the student’s progress was improperly assessed.

            As to petitioners' procedural claims, even assuming arguendo they amounted to noncompliance with the procedural requirements of the IDEA, they were not of a nature or number that resulted in a denial of parental participation in the IEP formulation, denied educational opportunity, or compromised the development of an appropriate substantive program (See Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 382 (2d Cir. 2003) [not every procedural error in the development of an IEP renders that IEP legally inadequate under the IDEA]).

            Petitioners next contend that their son's May 16, 2003 IEP was not reasonably calculated to enable him to receive educational benefits.  They assert that their son did not receive educational benefit during the 2001-02 or 2002-03 school years and that the May 16, 2003 CSE offered to continue the same inappropriate placement and services.  

            The 2003-04 IEP contains an adequate statement of the student's present levels of educational performance, including an adequate description of how the student's disability affects his or her progress in the general curriculum.  The description in the 2003-04 IEP of the student's current academic functioning levels was expanded and included greater detail than that of the 2002-03 IEP (Exhibits 4, 20).  In addition, both IEPs included an extensive listing of standardized test scores.  The student's reading, math and writing skills are below grade level.  Current standardized test scores were listed on the IEP and supported by comments from teacher reports regarding the student's performance in the classroom.  In describing the student's present performance levels, the IEP noted that the student continued to struggle in reading but had made steady progress in 2002-03 (Exhibit 4).  Difficulties were noted in written language and inconsistency was reported in mechanics of written language.  Math difficulties were identified in computation and in retention of math concepts.  High motivation was noted for topics of interest to the student, and strategies used to enhance written expression and language fluency and automaticity were listed (Exhibit 4). 

            The 2003-04 IEP noted that the student's social and emotional levels and abilities were within age appropriate expectations (Exhibit 4).  This statement was consistent with teacher reports of the student's performance in the classroom, but was inconsistent with reports from the student's mother.  Consistent with both home and school reports, it was noted that the student needed encouragement to build confidence and motivation and that he benefited from positive recognition of his strengths.  The IEP's description of the student's physical status noted diagnosis and medication for ADHD, as well as allergies and a need to improve fine motor skills.  In describing the student's management needs, the IEP noted that for some subjects the student required instruction in a small group with minimal distractions within the general education environment and that he required speech-language therapy as well as occupational therapy (Exhibit 4).

            The 2003-04 IEP 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.  The May 16, 2003 CSE maintained the student's goal and objectives for organization, study skills and learning strategies from the 2002-03 IEP (Exhibit 4).  Progress reports (Exhibit A) indicate that the student made some progress on two of the three objectives for this goal in 2002-03 but did not master them.  An additional objective was added to supplement the objective for independently initiating, identifying and completing academic tasks.  Consistent with anecdotal comments indicating that the student rarely initiated classwork (Exhibit A), this added objective addressed his need to organize and plan assignments.  Consistent with anecdotal comments that the student sought teacher assistance without first attempting a task independently (Exhibit A), an objective was added to address his need to know when to ask for assistance.  Additional objectives addressed the use of compensatory learning strategies, review of work to check for errors, and transfer of skills to similar situations, all appropriate for the increasing academic demands of a higher grade (Exhibit 4).

            A second study skills goal addressed attention, and a progress report for 2002-03 (Exhibit A) noted that the student had made some progress on the two objectives for this goal in 2002-03 but did not master them.  Those objectives were continued and two more objectives were added.  The two new objectives involved following single-step and multi-step directions, and complimented the previous year's objectives for attending to and completing tasks and following teacher directions (Exhibit 4).  The CSE appropriately included these additional objectives, which broke the previous objectives into smaller components.

            The student's 2002-03 goal for word recognition and reading decoding had six objectives, and the record indicates that the student made some progress on each of these objectives but did not master them (Exhibit A).  These objectives were continued for the 2003-04 school year and five additional objectives were added (Exhibit 4).  The added objectives were at a lower skill level for decoding than the 2002-03 objectives and addressed prerequisite skills, which would have increased the likelihood of the student achieving mastery of the other more difficult objectives (Exhibit 4).  All decoding objectives reflected the structured sequence of the Orton-Gillingham methodology, which the student's mother indicated she believed her son required, and which the district employed through use of the Wilson reading program (Transcript p. 799).

            The student's reading comprehension goal and objectives from the 2002-03 school year were carried over to the 2003-04 IEP (Exhibit 4).  Progress reports (Exhibit A) indicate that during the 2002-03 school year, he mastered two reading comprehension objectives and made satisfactory progress on the other two.  Carryover of objectives mastered is appropriate for reading comprehension because of the continued need for this skill as reading levels increase.  All objectives indicated performance at the student's instructional level, which is included in the 2003-04 IEP in a detailed listing of standardized test scores (Exhibit 4).

            The student's goal for mechanics of written language was carried over from the previous school year (Exhibit 4).  Progress reports (Exhibit A) indicate that the student made satisfactory progress on one of three objectives and made some progress on a second objective, but had not mastered either objective.  The third objective was for spelling, and progress reports (Exhibit A) include a statement that the student was able to make spelling corrections when errors were brought to his attention but could not make corrections independently.  Two objectives were added to the 2003-04 IEP to address the student's need to identify and correct spelling errors independently (Exhibit 4).

            The student's 2002-03 IEP goal for written language included two objectives, one for writing a single paragraph and a second for writing a multi-paragraph essay (Exhibits 14, 20).  The Exhibit A progress report noted some progress in 2002-03 on the first objective, and an anecdotal comment for the second objective noted that the student required encouragement and assistance with the second objective.  Both objectives were carried over to the 2003-04 IEP (Exhibit 4).  To address the identified difficulties the student was having in this area, the CSE added four objectives which broke down the previous objectives into smaller, more concrete steps and included lower, more easily achievable criteria for mastery (Exhibit 4).

            The student's 2002-03 progress report noted that he had mastered two objectives from his math goal and made satisfactory progress on the remaining five goals (Exhibit A).  The goal and all seven objectives were carried over to the 2003-04 IEP and four additional objectives were developed at a simpler and more specific skill level, allowing for addressing math needs in smaller more specific steps (Exhibit 4).  The record does not offer an explanation for maintaining the two objectives the student had mastered, but given the student's reported inconsistency in performance and difficulty retaining skills, it would not be inappropriate to continue these objectives to ensure skill maintenance.

            An OT goal, with objectives for handwriting, was carried over to the 2003-04 IEP from the 2002-03 school year (Exhibit 4).  The occupational therapist testified that the student made slow progress in development of fine motor, manipulative, visual motor and visual perceptual skills (Transcript p. 409), but required continuation of handwriting goals because he had switched from manuscript to cursive writing during the 2002-03 school year and needed to have the goal continued to reinforce skills learned so far (Transcript p. 406).  The therapist testified that the student's manuscript writing was legible (Transcript p. 404) and that his cursive writing was legible when he was motivated, but his writing was slow.  Assistive technology and a goal and objective for keyboard use were introduced to increase speed in writing tasks.  The keyboard skills goal was introduced on a trial basis in 2002-03; the student made satisfactory progress during that year (Exhibit A) and the goal was carried over in the 2003-04 IEP (Exhibit 4).

            Recent evaluations, including a 2001 CAPE, suggest that the student's central auditory processing deficits contribute significantly to his academic difficulties.  When these deficits were identified and speech-language therapy was recommended to address them, the CSE responded appropriately by recommending speech-language therapy, and the goal and objectives it developed were directly related to the student's deficits in auditory discrimination and auditory memory (Exhibit 4).  In 2002-03, the student mastered four of his five speech-language objectives and made satisfactory progress on the fifth objective (Exhibit A).  The fifth objective was carried over to the student's 2003-04 IEP (Exhibit 4).  While the student demonstrated less progress in other areas, it is significant that this primary area of deficit was addressed successfully, as progress in auditory processing can reasonably be expected to have a positive effect upon future academic skills development.

            Teacher testimony suggests that the student's social and emotional deficits were not having the significant impact upon his educational performance in the classroom that were reported at home (Transcript p. 332).  However, difficulties with self-esteem, frustrations with poor academic performance and their effect upon the student's ability to initiate tasks independently were identified.  For 2003-04, the CSE developed a goal and objectives to address this area of concern (Exhibit 4).  Objectives associated with this goal addressed self-esteem in measurable terms, stating that the student would be able to verbalize his accomplishments.

            The student also had identified difficulties in task completion, and the CSE developed a goal with five objectives to address this area of need (Exhibit 4).  An objective for reduction of task avoidance identified specific target behaviors and the goal also included an objective to ensure that the student verbalized task expectations, indicating the CSE's understanding of how the student's auditory processing deficits could result in task avoidance because of difficulty understanding a task.  All objectives for this goal were stated behaviorally and included criteria for mastery (Exhibit 4).  One of the most challenging objectives for the student, given his attentional deficits, addressed elimination of avoidance behaviors and realistically established a low mastery rate of 50 percent (Exhibit 4).  All objectives for this goal specified that progress would be monitored through recorded observation, consistent with teacher testimony regarding how progress during the previous school year had been monitored on goals for which no standardized tests existed (Transcript p. 345).

            The 2003-04 IEP included measurable annual goals, with benchmarks or short-term objectives, related to meeting the student's needs. 

            I have examined the methods of measuring progress on the 2003-04 IEP (Exhibit 4).  All of the goals and objectives included mastery criteria and appropriate methods of measurement (Exhibit 4).  Academic goals and objectives for reading, written language and math were to be measured using classroom and standardized tests (Exhibit 4).  Behavioral objectives for study skills, attending skills, and social-emotional needs were to be measured using recorded observations (Exhibit 4).  Performance criteria for mastery were adjusted to reflect the level of difficulty of each objective.  Objectives added to goals from the previous school year provided for addressing tasks at a lower skill level in those areas in which the student was identified as having the greatest difficulty.  These added objectives allowed for more precise measurement of progress.  However, with the exception of one objective for a social/emotional goal, mastery dates for all objectives were at the end of the 2003-04 school year, which did not allow for measurement of progress at regular intervals (Exhibit 4).  The IEPs from previous school years were similarly stated, but previous documents included four check boxes for each objective to allow for quarterly reporting of progress on each goal (Exhibits 34, 43, 49, 53).  The format used on the 2003-04 IEP does not include these boxes (Exhibit 4).  The director of special education testified that parents received formal reports of progress on IEP goals and objectives four times each year (Transcript p. 167; see Exhibit A).  It is reasonable to assume that the student's parents would have received quarterly progress reports again in 2003-04, but the district is cautioned to be more precise in development of target dates in the development of future IEPs. 

            Having reviewed the hearing record, I find that respondent has met its burden of demonstrating that the student's May 16, 2003 IEP, at the time it was formulated, was reasonably calculated to enable the student to receive educational benefits and likely to produce progress.  The IEP modified services appropriately based on results of 2002-03 assessments and progress reports.  The program offered through the 2003-04 IEP represented a change from the 2002-03 IEP.  The 2003-04 IEP was based upon adequate assessments and tailored to meet the student's needs.  Special education programs and services were identified and aligned to address the needs, adequate goals and measures of progress were included, and the educational program was offered in the LRE.  I further find that for the 2002-03 school year, as well as for previous school years, the CSE consistently monitored the student's progress, obtained and considered additional evaluations as difficulties were identified, and incorporated recommendations from these evaluations into the student's IEP.

            Having determined that the challenged IEP was adequate, respondent has met its burden of proving that it had offered to provide a FAPE to the student during the 2003-04 school year, petitioners are not entitled to tuition expenses, and I need not reach the issue of whether or not Kildonan 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, 142 F.3d at 134; Application of a Child with a Disability, Appeal No. 04-008, Application of a Child with a Disability, Appeal No. 04-003).

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


1  Fourteen months later, on June 3, 2003, the parents obtained another neuropsychological evaluation from another evaluator.  This evaluator also administered the WISC-III.  Results from this administration of the WISC-III did not identify a significant discrepancy between verbal and performance IQ scores.  This second neuropsychologist reported a verbal IQ score of 99, performance IQ score of 90, and full scale IQ score of 94, noting that all three scores were in the average range, but in her report narrative, she described the student as having "general intellectual ability in the High Average range" (Exhibit 3).

The CSE did not have access to the June 3, 2003 neuropsychological evaluation when it prepared the student's 2003-04 IEP on May 16, 2003.  However, I note that two of the evaluator's recommendations, specifically that the student receive multisensory instruction in a small group setting and that he receive social skills instruction, had already been incorporated into the IEP.

Topical Index

Annual Goals
CSE ProcessParent Participation
CSE ProcessSufficiency of Evaluative Info
Parent Appeal

1  Fourteen months later, on June 3, 2003, the parents obtained another neuropsychological evaluation from another evaluator.  This evaluator also administered the WISC-III.  Results from this administration of the WISC-III did not identify a significant discrepancy between verbal and performance IQ scores.  This second neuropsychologist reported a verbal IQ score of 99, performance IQ score of 90, and full scale IQ score of 94, noting that all three scores were in the average range, but in her report narrative, she described the student as having "general intellectual ability in the High Average range" (Exhibit 3).

The CSE did not have access to the June 3, 2003 neuropsychological evaluation when it prepared the student's 2003-04 IEP on May 16, 2003.  However, I note that two of the evaluator's recommendations, specifically that the student receive multisensory instruction in a small group setting and that he receive social skills instruction, had already been incorporated into the IEP.