04-074

            At the outset, I must address a procedural issue.  Petitioners request that I consider an educational summary dated August 25, 2004, annexed to their petition that was not made part of the hearing record (Pet. Ex. A).  Respondent objects, asserting that the educational summary is not relevant and respondent was not provided with an opportunity to cross-examine the author of the document.  Respondent’s answer includes a June 2004 fourth quarter reading narrative report and a fourth quarter narrative report card (Answer Exs. 1, 2).  Petitioners do not object to respondent’s exhibits.

            Generally, documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary in order to render a decision (see Application of the Bd. of Educ., Appeal No. 04-068; see generally Application of a Child with a Disability, Appeal No. 04-030; Application of a Child with a Disability, Appeal No. 04-020).  Petitioners’ Exhibit A was developed after the hearing and is not necessary to render a decision; hence, Exhibit A will not be accepted. Petitioners do not object to the additional exhibits offered by respondent and, therefore, I will accept them.

            At the time of the hearing, petitioners’ daughter was 18 years old and attending 12th grade at Miller Place High School.  The student’s classification as multiply disabled (MD) is not in dispute.  The student has medical diagnoses of attention deficit hyperactivity disorder (ADHD) (Tr. p. 19) and partial trisomy 13, a variation of Down syndrome (Tr. pp. 17, 833-34).

            The committee on special education (CSE) met on June 24, 2003 to develop the 2003-04 IEP.  Test results from 2003 were considered at this meeting to determine the student’s present levels of performance and included a Terra Nova, Woodcock Reading Mastery Test, and two separate speech and language tests (Dist. Ex. C at p. 3).  The results of the Terra Nova placed the student within the third grade reading level.  The student’s performance on the reading subtest of the Terra Nova yielded a score at a 3.8 grade equivalent (Dist. Ex. C at pp. 4-5).  The Woodcock Reading Mastery Test yielded a score between the first and second grade equivalent (Dist. Ex. C at p. 4).  The record does not contain any information regarding the results of cognitive testing of the student. The student achieved scores in the first percentile in the February 2003 speech and language tests, which evaluated the student’s abilities with definitions, synonyms, directions and formulating sentences (Dist. Ex. C at p. 5).

            On October 30, 2003, a CSE meeting was held at petitioners’ request to discuss their concerns regarding a vocational assessment that they wanted deferred (Tr. pp. 65-68).  The CSE revised the 2003-04 IEP, deferring the assessment until the student began working (Tr. pp. 69-70) The CSE also revised the IEP to include the student’s summer school teacher and an individual inclusion consultant, hired by the school district to observe the student for the school day once a month in the student’s normal educational setting, as part of the student’s transition group (Tr. pp. 67, 533-34).  The transition group met monthly and included the student’s parents, an inclusion consultant, and classroom teacher. The group’s purpose was to assist in transitioning the student from her academic environment into a vocational setting (Tr. p. 56).

            The student attended general education 12th grade classes with curriculum modifications.  Modifications for the student included modified grading, modified assignments, simplified vocabulary, visuals, and graphic organizers (Dist. Ex. C at p. 4).  Visuals included index cards with chapter vocabulary that contained a picture next to the vocabulary word and were used to help the student with her information retention, studying, completion of worksheets, and sometimes with testing (Tr. pp. 128-30; Dist. Ex. H).  The student had a 1:1 direct and indirect special education consultant teacher whose role was to work with the student and modify her curriculum or engage the student in parallel activities related to the academic topics that were being taught (Tr. p. 112).  The student was also provided with a full-time 1:1 aide, speech services, physical therapy (PT), occupational therapy (OT), reading instruction, and remedial reading (Dist. Ex.  C at p. 3).  The student’s behavioral intervention plan (BIP) included guidelines for staff members to assist in addressing behavioral concerns (Dist. Ex. C).  The plan, written by the school psychologist in conjunction with a behavioral consultant, was last revised in May 2001 (Dist. Ex. C; Tr. p. 91).   

             The district obtained the services of a private inclusion consultant.  Since the 1997-98 school year, the inclusion consultant has monitored and observed the student for the school day once a month in the student’s normal educational setting (Tr. pp. 533-34).  The consultant met with the district once a month for training team meetings (Dist. Ex. C at p. 8) where the student’s classroom performance was discussed (Tr. p. 58).  Petitioners were invited to attend the training team meetings which were co-facilitated by the student’s 1:1 consultant teacher and the inclusion consultant and included two of the student’s general education teachers, a related service provider, and a 1:1 aide assigned to the student (Dist. Ex. C at p. 8).  The student’s 2003-04 IEP also stated that all teachers and aides assigned to the student were to be trained in the implementation of the student’s BIP and that if necessary any behavioral issues regarding the student would be addressed at these monthly team meetings (Dist. Ex.  C at p. 8).

              Petitioners testified that at the team meetings they requested visuals be added to the student’s program modifications (Tr. pp 865-66, 872), they requested increasing the student’s independence (Tr. p. 866), and requested that specific books used from the previous school year to keep the student motivated and interested in reading be provided to the student (Tr. p. 868).  Petitioners further testified that at the February 25, 2004 team meeting they discussed the same issues that were discussed at previous meetings and that same topics were, “coming up again and again” (Tr. p. 872).  Petitioners also testified that at the team meetings the student’s inclusion teacher usually responded that she would incorporate petitioners’ suggested modifications (Tr. pp. 865-66, 870) but that petitioners either would not see a change in the modifications after the meetings (Tr. pp. 866, 870) or would occasionally notice a suggested modification but it would not continue after it was implemented (Tr. p. 867). 

              The inclusion consultant testified that it was her opinion that during the 2003-04 school year the chorus class notes provided to the student were not properly modified (Tr. pp. 704-05), language from the student’s science class was not simplified (Tr. p. 714), and true/false questions, which presented difficulty for the student, were used (Tr. p. 718).  Testimony from the inclusion consultant includes several instances where she did not see her suggestions regarding the student’s modifications incorporated in the classroom (Tr. pp. 602-03, 607-08, 611-13, 628-29).  However, the special education consultant teacher testified that it was her role to modify the curriculum for the student (Tr. p. 112) and enumerated examples of some modifications that she implemented, such as providing cards with visuals (Tr. pp. 113-14, 129-30, 151-52; Dist. Exs. G, H, J), worksheets (Tr. p. 115; Dist. Ex. G), and testing with visuals (Tr. pp. 148-50; Dist. Ex. I at p. 12).

               The student’s BIP was developed to provide strategies such as giving the student appropriate choices to address the student’s behavioral difficulties including noncompliance and impulsivity to provide positive reinforcement for desired behaviors (Dist. Ex. C).  At the November team meeting, modifications, such as giving the student appropriate choices and space when needed, were requested by petitioners to prevent their daughter from getting bored and frustrated, which they stated lead to behavior problems (Tr. pp. 848-50). 

               The district’s pupil personnel services administrator testified at the impartial hearing that the student began to exhibit behavioral problems in January 2004 and that a letter asking for permission to have a behavioral consultant work with the student was sent to the parents but they declined to give the district permission (Tr. pp. 73-74).  Petitioners also testified that they began to notice that their daughter was exhibiting behavioral issues sometime in December 2003 or January 2004 (Tr. p. 847). For example, the student would come home agitated (Tr. p. 847).  The student’s special education reading teacher testified that the student started to exhibit behavioral problems, such as throwing books off tables and yelling, in December 2003 (Tr. pp. 487-88).  Petitioner testified that an emergency team meeting was held on March 15, 2004 at which the student’s BIP (Tr. p. 873), curriculum modifications (Tr. pp. 881-87), and the student’s typing goals (Tr. pp. 874-76) were discussed.  Although the 2003-04 IEP states that the student’s teachers and aides were to be trained in the implementation and use of the student’s BIP (Dist. Ex.  C at p. 8), the district’s pupil personnel services administrator testified that the student’s teachers were not trained in the implementation of the student’s BIP until after the March 15, 2004 emergency meeting (Tr. p. 83).

               Concerned that the student’s modifications were not being appropriately implemented and concerned about missed OT sessions, petitioners requested a due process hearing on April 2, 2004 (Dist. Ex. A).  Petitioners allege that respondent failed to comply with the 2003-04 IEP by failing to modify the student’s curriculum, failing to provide BIP training to staff members, failing to work on many of the student’s goals and objectives, failing to provide occupational therapy, failing to provide progress reports, and failing to provide appropriate reading instruction to the student.  Petitioners requested that respondent be required to comply with all provisions of the 2003-04 IEP, provide compensatory education in the form of additional special education instruction, provide related OT services to make up missed sessions, and provide training to all appropriate staff members in the implementation of the student’s BIP.

            Five hearings were held from May 20, 2004 to June 29, 2004.  The hearing officer’s decision, dated August 11, 2004, found that the student’s short-term objectives listed on the IEP were not in compliance with federal and state laws (IHO Dec. p. 9), that the district failed to adequately work on the student’s job development skills (id.), and that some goals were not sufficiently pursued  (IHO Dec. pp. 9-10).  However, the hearing officer also found that in many respects the district appropriately implemented the student’s IEP goals in English, science, social studies and chorus that focused on acquiring specific skills such as reading or visually identifying sight words from the classroom reading material (IHO Dec. p. 10).  In addition, the hearing officer held that the teacher utilized strategies such as verbalization, picture cards, modified worksheets and verbal cues and gestures to address the student’s goals (id.).  The hearing officer further held that there was not a basis for concluding that there was a gross violation of the Individuals with Disabilities Education Act (IDEA) and denied petitioners’ request for compensatory education (IHO Dec. p. 15).  Furthermore, the hearing officer noted that although there were examples of “misfeasance” regarding the modifications to the educational program, he held that the parents’ concerns were mitigated by the comprehensive nature of respondent’s efforts as reflected in the IEP (see IHO Dec. pp. 1, 14).  In addition, the hearing officer awarded 14, 30-minute sessions of occupational therapy to make up for missed OT sessions from earlier in the school year (IHO Dec. at p. 16).

            On appeal, petitioners assert that the inappropriate implementation of the curriculum modifications, short-term objectives on the IEP that were not in compliance with state and federal law, failure to properly implement the BIP, and failure to provide the student with appropriate reading instruction constituted a gross violation of the IDEA.  Specifically, petitioners seek an additional hour per day of special education instruction for the 2004-05 school year and an additional year of reading instruction, 42 minutes per day, five days a week.  Respondent cross-appeals that portion of the impartial hearing officer’s decision that found its IEP violated federal and state law and ordered respondent to provide additional OT sessions for the 2004-05 school year.           

            The purpose behind the IDEA (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]).  A FAPE consists of special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[8]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).  A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]).  The parents' failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]).  The 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. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-092).

            To meet its burden of showing that it had offered to a 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]).  The student's recommended program 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]).  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]).

            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. 04-046; 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 Suspected of Having a Disability, Appeal No. 93-9).  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]; see 8 NYCRR 200.4[d][2][i]).  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, Section 1, Question 1).

            Based upon the record before me, I do not find that the IEP accurately reflects the results of evaluations to appropriately identify the student's needs or establishes annual goals and short-term instructional objectives related to those needs. The only complete evaluation provided in the record, that was also available during the formulation of the student’s 2003-04 IEP, was a psychological evaluation that was conducted over four days from June 1, 2002 to July 20, 2002 (Dist. Ex. D).  This psychological evaluation was paid for by the district and was conducted by a private psychologist at the parents’ request (Dist. Ex. D at p. 1).  The psychological report, which was part of the student’s triennial evaluation, indicated that the student presented notable resistance such as walking around the room and ripping up pieces of the test materials (Dist. Ex. D at pp. 3-4).  Most of the student’s standard scores from the evaluation fell within the first percentile. On the Reading Free Vocational Interest Inventory, percentile scores ranged from 20th to 95th (Dist. Ex. D at p. 2).  The psychologist stated that due to visual-perceptual, language, and fine motor challenges, no meaningful index of general overall cognitive functioning could be acquired (Dist. Ex. D at p 8).  Although the psychologist did not report an overall cognitive score, he did indicate that the student’s “knowledge and comprehension is limited and she will find age level verbal communication, knowledge and comprehension tasks extremely difficult” (Dist. Ex. D at p. 4).  The psychologist also stated that tasks requiring visual memory or mental manipulation of visual images would be very difficult for the student (Dist. Ex. D at p. 5), and that, “when average individuals at her age perform the broad knowledge task with 90 percent success, the student performs with five percent success” (Dist. Ex. D at p. 6). The student’s adaptive behavior scores placed her at two and a half standard deviations below the mean (Dist. Ex. D at p. 7).  The student’s areas of strength were listed as her social and academic skills with areas of weakness in self-care and occupational skills (Dist. Ex. D at p. 8).    The psychologist recommended that a transitional plan be developed. The psychologist indicated that the high school setting is unlikely to afford the student opportunities necessary for post high school activities, and that some combination of high school and vocational training needs to be developed and implemented (Dist. Ex. D at p. 9).  The evaluation identified that the student’s greatest needs were related to transition planning, self-care and occupational readiness (Dist. Ex. D at p. 8), and that the student’s academic curriculum should target the acquisition of functionally relevant skills (Dist. Ex. D at p. 9). 

             The IEP which was developed for the 2003-04 school year indicated that the student’s needs were concentrated on her academic skills and included multistep directions, expanding receptive and expressive vocabulary, use of verbal and receptive cues, use of concrete and manipulative materials to facilitate learning, homework assignments to be modified with simplified language, a modified instructional pace, and an individualized reading instruction (Dist. Ex. C at p.6).

              However, the IEP did not adequately incorporate the recommendations of the independent psychological report (Dist. Ex. D).  The student’s needs were identified in the psychological evaluation as including adaptive behavior skills, self-care including being able to prepare a meal for oneself, a vocational program, a sight words vocabulary, ability to tell time, ability to utilize money, functional math skills, interpersonal skills, frustration tolerance, and generalization of skills across home and school (Dist. Ex. D at pp. 8-9).  While some of these needs are in the IEP, none of them are developed into goals and objectives able to be utilized for the student.  The majority of the goals and objectives in the IEP are focused on academic needs and fail to address significant needs as identified in the independent psychological evaluation. Therefore, a majority of the student’s needs are not addressed in the IEP.

              The record indicates that this evaluation was not given appropriate consideration by respondent (Tr. p. 835).   I find that respondent has not demonstrated that the IEP that it developed considered the independent psychological evaluation (8 NYCRR 200.4[d][2]; 34 C.F.R. 300.346[a][ii]).  I also find that the goals and objectives in the IEP did not address the student’s needs as identified in the independent psychological evaluation and were therefore inadequate (8 NYCRR 200.4[d][2][iii]; 34 C.F.R. 300.347[2][i]).  The inadequacies in the IEP were of a number and nature that constituted a denial of FAPE (Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]).

               Petitioners assert that the student is entitled to compensatory educational services and additional educational services.  Compensatory education is instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction.  It may be awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Application of the Bd. of Educ., Appeal No. 02-047).  There is no evidence of either in the record.  Moreover, there is nothing in the record to show that the student is no longer eligible to receive instruction.  When the hearing began, the student was 18 years old and had not yet received a high school diploma.

            While compensatory education is a remedy that is available to students who are no longer eligible for instruction, I note that State Review Officers have awarded additional services to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030).

            Although I find a denial of FAPE, I concur with the hearing officer’s decision that there was no deprivation of educational services for a substantial period of time.  No compensatory education is warranted because the student is still eligible to receive instruction and there was no gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time.  However, the student is entitled to receive additional services because of the inappropriate IEP.  Having determined that the student was denied a FAPE for the 2003-04 school year, I will order that when the CSE convenes it consider the result of the denial of a FAPE and provide additional services as necessary.

            Given this student’s age and level of functioning, it is particularly important that the CSE consider transition services as recommended by the independent psychological evaluation (Dist. Ex. D) and required by state and federal law (8 NYCRR 200.4[d][2][i][c]; 8 NYCRR 200.4[d][2][ix]; see 20 U.S.C. § 1414[d][1][A][vii][II]; 34 C.F.R. 300.347[b][2]; see also 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 11). 

             Respondent cross-appeals the hearing officer’s award of additional OT sessions.  The record reflects conflicting views of how many OT sessions were missed during the 2003-04 school year (Tr. pp. 47-48, 915-16; Dist. Ex. Z at p. 4; Answer ¶ 86).  The hearing officer granted petitioners’ request for 14, 30-minute sessions, and I have no reason to find that this number is not appropriate.  Therefore, respondent’s cross-appeal is dismissed.

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

              I have considered respondent’s remaining contentions and I find them to be without merit.

THE APPEAL IS SUSTAINED IN PART.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED, unless the parties otherwise agree, the CSE convene and develop an appropriate IEP for petitioners' daughter for the 2004-05 school year giving due consideration to the independent psychological evaluation and its recommendations; and

IT IS FURTHER ORDERED, unless the parties otherwise agree, that within 30 days of the date of this decision, the CSE convene and determine what additional services are necessary to make up for the denial of a FAPE during the 2003-04 school year; and

IT IS FURTHER ORDERED, unless the parties otherwise agree, that the CSE convene within 30 days to consider and develop a program designed to meet the student’s transition needs.