04-089

            Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their daughter’s tuition at the Summit School (Summit) for the 2003-04 school year.  Respondent cross-appeals from the impartial hearing officer’s decision which found that the equities favored petitioners.  The appeal must be dismissed.  The cross-appeal must be dismissed.

           At the outset, I must address a procedural issue.  Petitioners request that I consider the 2003-04 progress report annexed to their Petition that was not made part of the hearing record (Pet. Ex. 1).  Respondent requests that the 2003-04 progress report be excluded, arguing that it is not relevant and that the majority of the information contained in the report was available at the time of the impartial hearing. 

         Generally, documentary evidence not presented at a hearing may be considered in an appeal from an impartial 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).  Although petitioners’ Exhibit 1 was developed after the hearing, it is not necessary for me to render a decision, therefore, Exhibit 1 will not be accepted.

         At the time of the hearing in this proceeding, the student was 13 years old with a nonverbal learning disability (NVLD) and classified as a student with a learning disability (LD) (see 8 NYCRR 200.1[zz][6]). The student’s classification is in dispute. Characteristics of NVLD as noted in testimony include stronger verbal skills than social skills, combined with the inability to recognize the nuances of body language, facial expressions, and interpersonal physical boundaries (Tr. pp. 602-03). Medically, the student underwent eye surgery for strabismus in 1993 and wears glasses for farsightedness (Dist. Ex. 3 at p. 2).  Testimony indicates that the student currently wears a brace for scoliosis (Tr. p. 694).

         According to the record, the student entered nursery school at three years of age, with no reported major adjustment problems (Dist. Ex. 2 at p. 1).  In pre-kindergarten, difficulties were noted regarding attention skills, ability to follow directions, and fine motor skills, for which she privately received occupational therapy (OT) services (id.).  While attending regular kindergarten, the student was classified as other health impaired (OHI) based on her fine motor delays (Dist. Ex. 3 at p. 2) and received OT in school (Dist. Ex. 2 at p. 1).  Academic difficulties were noted in first grade, and the student was referred for a neuropsychological evaluation (id.).  At that time, the student reportedly demonstrated significant cognitive variability, with relatively strong verbal abilities and was diagnosed as having an attention deficit disorder (ADD) (id.).  In second grade, the student continued receiving OT, in addition to speech-language therapy, and consultant teacher services for academic support (id.).  The student reportedly experienced difficulty making friends in school (id.).

            For the 1998-99 school year, the student transferred into the district as a third grade special education student (Tr. pp. 903-04).  Testimony by the parent indicates that the fourth grade year was a "good year" for the student (Tr. p. 906).  In fifth grade, the student appeared to be "bogged down" with homework (Tr. p. 907).  In preparation for sixth grade, the district met with the parents to answer questions pertinent to the student's transition from elementary school to middle school (Tr. p. 908).  The parent testified that in the beginning of the sixth grade school year she met with her daughter’s middle school math, science, social studies, and English teachers, the resource room teacher and the guidance counselor to discuss the student's needs and the modifications on her individualized education program (IEP) (Tr. p. 909).  The parent's testimony indicates that she considered that the sixth grade was "good," the student was "busy," and she seemed to enjoy and felt good about school (Tr. pp. 909-10).  In sixth grade, the student's classification was changed from OHI to LD (Dist. Ex.2 at p. 2).

            During the 2002-03 school year when the student was in seventh grade, the student received resource room (5:1) five times a week for 40 minutes per day (Dist. Ex. 4 at p. 1), individual and group counseling once a week for 30 minutes (Dist. Ex. 4 at p. 3), and group speech and language once a week for 30 minutes (id.).  Specifically, while attending school in the district in seventh grade, the student received counseling with the school psychologist (Tr. p. 32) and participated in a social skills group led by the school social worker (Tr. pp. 20, 186-87).

           On Thursday, February 6, 2003, the student wrote a statement in her journal which indicated that she had thoughts of hurting herself (Tr. pp. 16-17, 580).  After being notified of the journal entry, the school psychologist met with the student and the student told her that her journal entry pertained to an incident at summer camp in 2002, where she had thoughts about hurting herself by jumping off a bleacher (Tr. p. 17).  The student also informed the school psychologist that she still had thoughts of hurting herself and that she wanted someone to help her stop having those thoughts (id.).  The student's parents were immediately contacted (Tr. pp. 929-30), and the student’s mother came to school that day for a meeting with the school psychologist and the guidance counselor where the journal entry and the student's social skills were discussed (Tr. pp. 18-20).  At this meeting, it was requested that the student's mother bring a letter, based on an independent psychological or psychiatric evaluation, stating it was safe for the student to return to school and that she was not a threat to herself (Tr. pp. 21-22).  Petitioners' psychologist agreed to see the student on an emergency basis two days later (Tr. pp. 679-80).  The psychologist met with the student concerning the statement and determined that the student was not a threat to herself or anybody else, was confident that the student was expressing her feelings of loneliness, frustration, and sadness due to a lack of friends, had no intention of acting upon these feelings, and was not suicidal (Dist. Ex. 1 at p.1).  On Monday, February 10, 2003, the parent presented the psychologist’s letter to the school psychologist, who read it and sent the student to class (Tr. pp. 22-24, 85).

           As a result of this incident, the parent requested an emergency Committee on Special Education (CSE) meeting at the end of February 2003 to be chaired by the assistant superintendent for research, assessment and special services (Parent Ex. F).  The district scheduled a meeting for April 1, 2003 (Tr. p. 565; Parent Ex. G).¹

          The CSE met on April 1, 2003.  District personnel testified that at the meeting they discussed the student’s progress since the beginning of the 2002-03 school year (Tr. pp. 498-99, 570-72) and that the student was walking in the hall with other students (Tr. pp. 46, 183, 570) and participating in a girls' social skills group facilitated by the school social worker (Tr. pp. 186-87, 189-90). At the meeting it was also noted that the student had been voted president of the art club by her peers (Tr. pp. 192-93, 324), auditioned for a vocal solo for the school talent show (Tr. p. 423), and performed a vocal solo at a school concert (Tr. pp. 423-25).  The CSE added individual counseling with the school psychologist (Tr. p. 505) as a related service for the student, in addition to the already established social skills group. Resource room would continue with the same special education teacher, but possibly during a different period where there was another girl in the class (Tr. p. 577).

          The parents obtained a private neuropsychological evaluation (Tr. pp. 1031-32) that was conducted in April and May 2003 (Dist. Ex. 2). Administration of the Wechsler Intelligence Scale for Children-III (WISC-III) yielded results indicative of intellectual abilities within the low average to average range, with relatively strong verbal skills (Dist. Ex. 2 at p. 3). The student received a verbal IQ score of 105 (average), a performance IQ score of 86 (low average), and a full scale IQ score of 95 (average) (id.).  Memory and learning skills were generally consistent with the student's cognitive strengths and weaknesses (Dist. Ex. 2 at p. 7). The student had no difficulty remembering meaningful verbal and visual information, but did experience difficulty in learning and retaining abstract and non-meaningful information (Dist. Ex. 2 at p. 5). Additional difficulty with organizing information contributed to these learning and memory weaknesses (Dist. Ex. 2 at p. 7). Academically, relative weaknesses were noted in reading comprehension skills, while basic reading-decoding, spelling, writing, and math computation skills were grade appropriate (id.). The evaluator described the student as a student with an Attention-Deficit Hyperactivity Disorder (ADHD) and associated cognitive weaknesses, which seemed to be contributing to her academic difficulties. Additionally, the evaluator noted that she also displayed some metalinguistic and pragmatic language weaknesses, which he concluded seemed to further compound her academic problems and socialization difficulties (Dist. Ex. 2 at pp. 7-8).  The student was further described to demonstrate "limited coping skills both at the cognitive level and also in terms of her emotional functioning" (Dist. Ex. 2 at p. 8).

            A May 2003 psychiatric evaluation report indicated that the student told the school psychologist in early May 2003 that she had cut herself with scissors at school (Dist. Ex. 3 at p. 1).  However, the school psychologist testified at the hearing that in May 2003 the student told her that she had cut herself with a scissor at home because she was mad after arguing with one of her parents (Tr. pp. 56-57).  The school psychologist testified at the hearing that she pointed out the discrepancy between what she was told and what was reported in the evaluation at a CSE meeting that took place in June and that petitioners did not respond at the meeting to the discrepancy (Tr. pp. 140-41).

           The CSE met again on June 11, 2003 to develop the student's eighth grade program for the 2004-05 school year (Dist. Exs. 4 at p. 1, 7 at p. 1).  The 2004-05 IEP reflects that recommendations from both the neuropsychological and psychiatric evaluations, such as improving the student’s organization skills (Dist. Ex. 2 at p. 8) and improving social acceptance (Dist. Ex. 3 at p. 6), were considered (Dist. Ex. 4 at pp. 10, 15-16).  Other testimony by school personnel indicated that the CSE discussed the student's diagnosis of anxiety, that the student was medicated for the anxiety, and that the anxiety was not something seen in school (Tr. p. 582).  The student's nonverbal learning disability was also discussed (id.).  In addition, the CSE considered teachers' reports during seventh grade in planning for eighth grade (Tr. p. 583).  Although the student remains someone in need of social skill development, the CSE again considered the progress the student made since the beginning of the school year (Tr. p. 584) and that was previously highlighted at the April CSE meeting.  In addition to the student's aforementioned progress, the student joined and participated in the activities of the creative writing club (Tr. pp. 502-3), and ate with other students in the cafeteria (Tr. pp. 320, 585).  Testimony indicates that in the seventh grade, the student exchanged telephone numbers with a friend she began forming a friendship with in sixth grade (Tr. p. 202).

          The CSE recommended that for eighth grade, the student attend blended classes five times a week, six hours a day (Dist. Ex. 4 at p. 2).  The district’s blended classes have approximately 18 general education and 7 special education students and are taught in the mainstream by both a general education teacher and a special education teacher (Tr. p. 587).  In addition, there is an additional special education support period for the special education students (id.).  The assistant superintendent testified that the blended program would be “a supportive and nurturing school environment" (Tr. p. 592), where the student would be, consistent with the least restrictive environment requirement, educated in a 100 percent mainstream setting for academics with instruction from both a regular education and a special education teacher (Tr. pp. 604-07).

          The assistant superintendent added that she "…thought it [the blended program] was really something that would really address all the concerns brought up by the parents as well as what [the district] saw as her needs in all the areas" (Tr. p. 607).  In addition to the blended classes, the CSE recommended related services of counseling twice a week (one time individually and one time in a group setting), speech services twice a week in a group setting, and meet with a behavioral consultant and attend team meetings every five weeks (Dist. Ex. 4 at p. 3).  The CSE also recommended that the student receive either the academic support class with the special education teacher from one of her blended classes, or she may continue in the resource room, depending on what the parents prefer (Tr. pp. 608-09; Dist. Ex. 4 at p. 3).

            On October 8, 2003 respondent received a letter from petitioners requesting an impartial hearing to obtain tuition reimbursement for the 2003-04 school year (Parents Ex. H).  Petitioners claimed that their daughter was not properly classified as a student with an emotional disturbance (ED) and that respondent did not offer an appropriate program for the 2003-04 school year.  The hearings were held on seven days from January 26, 2004 to June 1, 2004.  Due to a series of requests for extensions on behalf of both parties, the impartial hearing officer did not issue his decision until September 11, 2004. 

            In his decision, the impartial hearing officer found that the student should not be classified as ED because she did not have an inability to learn, interpersonal relationships with her peers were improving, she was not exhibiting inappropriate behavior under normal circumstances, and that the student’s physical symptoms or fears that she had a tendency to develop did not adversely affect her educational performance (see 8 NYCRR 200.1[zz][4]).  Furthermore, the impartial hearing officer found that the student’s classification as LD was appropriate and premised upon her difficulty in the basic psychological processes involving her ability to apply language skills in certain areas such as listening, reading, writing, thinking, speaking, and sometimes in mathematical calculations.  The impartial hearing officer found the student's identified educational deficits and special education needs were consistent with available evaluation data, academic performance, interpersonal relationships with teachers, and social interaction with peers.  Furthermore, he found these sources provided adequate detail for the CSE to develop a program tailored to address the student's needs, the IEP contained appropriate goals and objectives necessary to address the student’s special education needs, and that respondent offered an appropriate program for the 2003-04 school year.  He held that respondent offered the student a free appropriate public education (FAPE) in the least restrictive environment (LRE) and he denied petitioners’ request for tuition reimbursement.

            In their appeal, petitioners assert that their daughter was not properly classified as ED, respondent failed to demonstrate the appropriateness of the 2003-04 IEP program, not all of the goals were listed in the June 11, 2003 IEP, some of the goals that were listed did not adequately describe how they were to be implemented, Summit provided an appropriate placement, and that equitable considerations favored petitioners.

            Respondent argues that the impartial hearing officer properly held that the student showed progress in the seventh grade, the student was appropriately classified as a student with a learning disability, respondent appropriately addressed the student’s disabilities, and that the 2003-04 IEP was appropriate.  Respondent also asserts that the program at Summit is too restrictive because it isolates her from typical peers and is, therefore, an inappropriate placement.

            After reviewing the voluminous record and the impartial hearing officer's decision, I find that the hearing officer applied the proper legal analysis in determining whether the student received a FAPE (see Bd. of Educ. V. Rowley, 458 U.S. 176, 206-07 [1982]), whether the parents were entitled to tuition reimbursement (see Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Application of a Child with a Disability, Appeal No. 00-008), and whether educational benefit was indicated in the record (Walczak v. Bd. of Educ., 142 F.3d 119, 130 [2d Cir. 1998]; Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; Application of a Child with a Disability, Appeal No. 99-055).  The impartial hearing officer appropriately determined that the student's educational deficits and special education needs, as identified on the 2003-04 IEP, were consistent with available neuropsychological, psychiatric, educational, medical, and speech and language evaluations.  I concur with the impartial hearing officer that the IEP reflected and the CSE relied on these evaluations to determine the student’s needs and abilities across academic development, communication, physical development, management and social domains.  For example, some of the student’s academic needs are listed as needing to improve organizational skills, prioritization, using study cards for reviewing instruction and reinforcing new skills, and developing note taking skills (Dist. Ex. 4 at pp. 4-5).  Corresponding goals state that the student will, “demonstrate organizational skills to meet academic requirements across content areas,” “will manage time in order to meet academic requirements across academic areas,” “will utilize study skill strategies to enhance the learning process across content areas,” and “will be able to demonstrate note-taking format as it relates to content areas” (Dist. Ex. 4 at pp. 9-10).  Examples of some of the objectives state that the student will actively listen to oral presentations and record important information, leave school with appropriate materials independently, use study cards when reviewing instruction and reinforcing new skills, and will prioritize tasks independently (Dist. Ex. 4 at pp. 10-11). I concur with the impartial hearing officer’s analysis that the 2003-04 IEP reflected the requisite correspondence and alignment between the student’s needs and the goals and objectives that is required for the provision of an appropriate program.  I find that the 2003-04 IEP, at the time it was formulated, was reasonably calculated to provide meaningful educational benefits. Furthermore, the record demonstrates that the June 11, 2003 CSE formulated the 2003-04 IEP based, in part, upon the student’s social and academic progress during the seventh grade school year.  Based upon my review of the entire hearing record, I find that the hearing was conducted in a manner consistent with the requirements of due process and that there is no need to modify the determination of the impartial hearing officer (34 C.F.R. § 300.510[b][2]; N.Y. Educ. Law § 4404[2]).  I, therefore, adopt the findings of fact and the determination of the impartial hearing officer that petitioners are not entitled to tuition expenses.  Based upon the record in this case, I find that respondent has met its burden of demonstrating that it offered an appropriate program to petitioners' child.

            Because I have determined that the challenged IEP was adequate and respondent has met its burden of proving that it offered a FAPE to the student during the 2003-04 school year, petitioners are not entitled to tuition expenses and I need not reach the issue of whether or not Summit was an appropriate placement nor need I reach the issue of whether petitioners provided sufficient notice of their unilateral placement as raised in respondent’s cross-appeal.  The necessary inquiry is at an end (M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142F. 3d at 134; Application of a Child with a Disability, Appeal No. 03-058).

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

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.