04-104

           Petitioner, the Board of Education of the Smithtown Central School District, appeals from a decision of an impartial hearing officer which found that it failed to offer an appropriate educational program to respondents' son and ordered it to reimburse respondents for their son's costs for a private tutor for the 2002-03 and 2003-04 school years.  Respondents cross-appeal from the impartial hearing officer's decision which denied their request for reimbursement of their son's costs for a private tutor for the 2001-02 school year and for reimbursement of their son's tuition costs at Camp Dunnabeck, the summer program of Kildonan School (Kildonan summer program) for 2003.  The appeal must be dismissed.  The cross-appeal must be dismissed.

            Preliminarily, I will address the procedural issues raised in this appeal.  In their answer and cross-appeal, respondents assert that the petition for review was not properly verified in accordance with the Regulations of the Commissioner of Education (8 NYCRR 279.7), and therefore should be dismissed (Ans. pp. 2, 20).  Notwithstanding respondents' contention, the petition for review received by the Office of State Review was in fact verified by a school district administrator for special education and special services who attests to being familiar with the facts underlying the appeal (see 8 NYCRR 279.7).  As such, I will not dismiss the petition on this ground (see Application of a Child with a Disability, Appeal No. 04-099).

            Respondents further assert that the petition for review and memorandum of law do not comply with the form requirements of section 279.8 of the Regulations of the Commissioner of Education (8 NYCRR 279.8) and request that they be rejected (Ans. p. 20).  I find that the petition for review and memorandum of law comply with the form requirements set forth in the Part 279 regulations.  Petitioner asserts in its reply that respondents' answer and cross-appeal do not comply with the form requirements of section 279.8 of the Commissioner's Regulations and requests that they be rejected (Reply ¶¶ 24-26).  I will exercise my discretion and accept the answer and cross-appeal.  The parties are reminded, however, that their pleadings and memoranda of law should comply with the requirements set forth in the Part 279 regulations.

            Respondents' son turned 11 years old during the course of the hearing (Tr. p. 20) and was attending fifth grade at petitioner's public school (Dist. Ex. 4 at p. 2).  The student's classification as learning disabled (LD) is not in dispute in this proceeding (Tr. pp. 92-3).

            A clinical neuropsychological examination report developed in June 2002 indicated that respondents' son was found to have difficulty with letter identification as early as pre-kindergarten (Dist. Ex. 5 at p. 1).  The report further indicated that "by kindergarten" he was receiving tutoring concerning his ability to rapidly and correctly identify letters (id.).  In first grade, there was concern about the student's difficulty with matching sounds with letters (id.).  A speech-language evaluation was conducted in March 2000 which revealed that the student had "moderate to severe deficits in auditory memory and auditory processing" (Dist. Ex. 5 at p. 2).

            A psychological evaluation was conducted in May 2000 (Parent Ex. J).  Administration of the Wechsler Intelligence Scale for Children-III (WISC-III) yielded a verbal IQ score of 85, a performance IQ score of 84, and a full scale IQ score of 84, placing the student in the low average range of intellectual development (Parent Ex. J at pp. 1, 2).  The psychologist noted that the discrepancy between verbal and nonverbal skills was not considered statistically significant and the student performed equally on items requiring object manipulation or attention to visual detail for solution as compared to those requiring a verbal response (Parent Ex. J at p. 2).  However, the psychologist also noted that the student scored in the high average range on the processing speed index, which indicated that the student has above average ability to process nonverbal material in a quick and efficient manner (id.).  Based upon parent and teacher ratings, it was suggested that the student met the criteria for attention deficit hyperactivity disorder (ADHD), inattentive type (Parent Ex. J at pp. 2-3, see Dist. Ex. 5 at p. 2). The psychologist recommended that respondents' son receive speech-language services and resource room services to provide the student with more individualized instruction (Parent Ex. J at p. 3).

            During the 2000-01 school year, when the student was in the second grade, he received daily resource room assistance for weak reading and writing skills (Dist. Ex. 5 at p. 1).  By November 2001, the student began receiving private tutoring in the Wilson method of reading instruction (Tr. p. 647).  The Wilson method is a multi-sensory sequential instructional reading program that teaches a student how to decode (Tr. pp. 195-96).  The student received private tutoring in the Wilson method twice a week during the school year and three times a week in the summer, continuously beginning November 2001 (Tr. p. 647), except for the six weeks the student attended the 2003 Kildonan summer program (Tr. pp. 750-51).

            A limited amount of information was provided in the record for the 2001-02 school year, while the student was in the third grade.  I note that the student's May 10, 2002 individualized education program (IEP) indicates that a Committee on Special Education (CSE) annual review meeting occurred in February 2002 (Dist. Ex. 1 at p. 4; see Tr. pp. 60, 71).  The student's mother testified that her son was "struggling so much that he needed teacher assistance pretty much to do any kind of reading and writing and he was behind" (Tr. p. 933).  However, at that time, respondents rejected a district recommendation for a self-contained class placement (Dist. Ex. 1 at p. 4; Tr. p. 933). 

            For the 2002-03 school year, the CSE recommended that the student attend a 10-month fourth grade inclusion model class (Dist. Ex. 1 at p. 2).  In addition, the CSE recommended that the student receive 30 minutes of group speech-language therapy twice per week (Dist. Ex. 1 at p. 3).  The CSE further recommended testing modifications including: flexible test scheduling; extended time for tests and quizzes; revised test format; spelling, punctuation, and/or paragraphing requirements deleted; test directions revised, read, simplified, and explained; and having the entire test read to the student (Dist. Ex. 1 at p. 2).  Petitioner's CSE determined that the student was not eligible for extended school year (ESY) services because there was no evidence of the likelihood of substantial regression during the summer months (Tr. pp. 151-52, 199, 241-42, 375-76).  However, since the student's mother insisted on a summer program for the summer of 2002, the student was offered the opportunity to attend the district's summer reading academy, which is a nonspecial education remedial reading program (Tr. pp. 150-51, 199-200).  The student attended the district's summer reading academy during the summer of 2002 (Tr. p. 153).

            A clinical neuropsychological examination was conducted in June 2002 (Dist. Ex. 5).  Re-administration of the WISC-III yielded a verbal IQ score of 104, a performance IQ score of 104, and a full scale IQ score of 104, placing the student in the average range of intellectual development (Dist. Ex. 5 at p. 3).  I note that the evaluator of this report included the scores of the WISC-III conducted in May 2000 (Dist. Ex. 5 at p. 2), but offered no explanation for discrepancy in scores between the two evaluations (compare Dist. Ex. 5, Parent Ex. J).  Results of the Wechsler Individual Achievement Tests-II (WIAT-II) indicated serious deficits in academic skills (Dist. Ex. 5 at. p. 4).  Throughout testing, the evaluator reported that the student "demonstrated minimal automaticity and was noted to laboriously sound out unfamiliar words" because phonological awareness and phonetic decoding were areas of difficulty for the student (Dist. Ex. 5 at p. 4).  The evaluator further noted language deficits characterized by limitations in sequential memory; auditory comprehension; phonological processing, including knowledge of letter to sound mappings; and storage and retrieval of phonological information (Dist. Ex. 5 at p. 5).  Areas of strength for the student involved visuospatial manipulation, sequential reasoning of socially meaningful stimuli, expressive vocabulary, and verbal list learning (id.). The evaluator indicated that the constellation of neuropsychological strengths and weaknesses suggested the presence of a language-based learning disability (id.).

            In September 2002, the CSE met and discussed the results of the clinical neuropsychological examination (Dist. Ex. 2 at p. 4).  The parents reportedly requested that speech therapy be discontinued in an effort to avoid an additional pullout from the classroom (Dist. Ex. 2 at p. 4; Tr. pp. 172, 178).  The IEP reflects that the student's parents were dissatisfied with the recommended Academic Intervention Services (AIS), a nonspecial education service primarily offered to educationally unclassified students who need additional intervention (Tr. p. 543), that would be provided by a certified reading teacher and by the student's special education teacher, who was being trained in the Wilson reading method (Dist. Ex. 2 at p. 4).  The record indicates that the student received 30 minutes of group speech-language therapy twice per week except for the discontinuation of speech-language therapy at the parents' request (Dist. Ex. 2 at p. 4) between September 2002 and January 2003 (Dist. Exs. 2 at p. 4, 3 at p. 2).

            A speech-language triennial review was conducted on February 11, 2003 (Dist. Ex. 8).  Administration of the Clinical Evaluation of Language Functions-3 (CELF-3) yielded a receptive language score of 80, an expressive language score of 88, and a total language score of 83, which is more than one standard deviation below the mean (Dist. Ex. 8 at p. 1).  The speech-language triennial review report indicated that, "[The student] continues to demonstrate auditory processing weaknesses, as well as semantic and syntactic delays; phonemic awareness skills need to be developed" (Dist. Ex. 8 at p. 2).

            On May 27, 2003, petitioner's CSE convened for its annual review and recommended that the student attend a 10-month fifth grade inclusion model class for the 2003-04 school year (Dist. Ex. 4 at p. 2).  The CSE further recommended that the student receive 30 minutes of group speech therapy twice per week (id.).  The CSE also recommended similar testing modifications as it had the previous school year (Dist. Ex. 4 at p. 2, see Dist. Ex. 1 at p. 2).  During the May 27, 2003 CSE meeting, respondents requested that the student attend a summer program at Camp Dunnabeck, the summer program at the Kildonan School (Dist. Ex. 4 at pp. 3, 16, see Dist. Ex. 10; Tr. pp. 379, 1002).  However, the CSE did not approve respondents' request for their son to attend the 2003 Kildonan summer program (Dist. Ex. 4 at p. 3; Tr. p. 379).  Respondents unilaterally placed their son in the 2003 Kildonan summer program (Tr. pp. 961, 1002).

            By September 2003 (Tr. p. 197) or October 2003 (Tr. p. 408), the student was receiving 40 minutes of group remedial reading instruction two times per week from one of the district's special education teachers utilizing the Wilson reading program (Tr. pp. 197, 390, 407-08).  During the 2003-04 school year, respondents' son also received AIS for English Language Arts (ELA) two times per week for 90 minutes, and for math two times per week for 45 minutes (Tr. pp. 197, 1223-25).  The student was offered AIS tutoring in ELA because students who score a two or lower on the New York State ELA examination are eligible for the service (Tr. p. 1223).  AIS eligibility was determined at the "building level" (Tr. pp. 156-57, 543-44) and is not listed on the student's IEP as a service (Tr. p. 173).  I note that although remedial services are not specifically listed on the student's May 27, 2003 IEP as a service, the meeting rationale section of the IEP indicates that the student "will also receive additional reading instruction in his school building" (Dist. Ex. 4 at p. 3; Tr. p. 173). 

            By letter dated October 8, 2003, respondents requested an impartial hearing for the purpose of obtaining reimbursement for the cost of a private tutor for their son and reimbursement for the cost of their son's tuition at the 2003 Kildonan summer program (Dist. Ex. 12 at p. 6).  The hearing began on January 9, 2004 and testimony was heard over seven days, concluding on June 7, 2004.  The impartial hearing officer rendered a decision on October 6, 2004 finding that respondents' claims that arose prior to the 2002-03 school year were barred by a one-year statute of limitations; the student was denied a free appropriate public education (FAPE) for the 2002-03 and 2003-04 school years; respondents' selection of private tutoring services during the 2002-03 and 2003-04 school years was appropriate; equities favored reimbursement for the cost of a private tutor during the 2002-03 and 2003-04 school years, and he awarded respondents reimbursement for the cost of the private tutor during the 2002-03 and 2003-04 school years.  The impartial hearing officer, however, did not reimburse respondents for the cost of the 2003 Kildonan summer program because she did not find evidence that the student would experience substantial regression in the absence of a 12-month program.

            On appeal, petitioner contends that the impartial hearing officer erred in finding that petitioner did not provide respondents' son with a FAPE for the 2002-03 and 2003-04 school years and erred in finding that the reading services provided by the private tutor were appropriate. Petitioner requests that the impartial hearing officer's decision be annulled to the extent that it required the district to reimburse respondents for the private tutoring services provided to respondents' son for the 2002-03 and 2003-04 school years.  Respondents cross-appeal and contend that the impartial hearing officer should have awarded reimbursement for the private tutoring services provided prior to the 2002-03 school year and also awarded reimbursement for the cost of their son's tuition at the 2003 Kildonan summer program.  Respondents further contend that the impartial hearing officer erred in failing to grant their motion for Summary Judgment and improperly extended the regulatory timeframe of the impartial hearing.

            The purpose behind the Individuals with Disabilities Education Act (IDEA) is to ensure that children with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]).  A FAPE includes special education and related services provided in conformity with a written IEP (20 U.S.C. § 1401[8]), developed by a school district, which is tailored to meet the student's unique needs.  A board of education may be required to pay for educational services obtained for a student by his parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Burlington Sch. 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 Co. Sch. 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 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, Appeal No. 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 respondents' contention that the impartial hearing officer erred in determining that any claim for reimbursement before the 2002-03 school year was barred by statute of limitations.  Although the IDEA does not prescribe a time period in which requests for administrative impartial due process hearings must be asserted, a one-year statute of limitations has been applied in light of recent case law requiring the adoption of the most appropriate analogous state statute of limitations (M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221 [2d Cir. 2003]); seeApplication of the Bd. of Educ., Appeal No. 02-119; Application of the Bd. of Educ., Appeal No. 03-062).  Federal rules of accrual apply (Leon v. Murphy, 988 F.2d 303 [2d Cir. 1993]); hence, the time period for requesting an impartial hearing to resolve disputes under the IDEA or Article 89 of the New York Education Law begins to run when respondents knew or should have known of the injury involved. In this case, it is asserted that their son was denied a FAPE (M.D., 334 F.3d at 221).  The record demonstrates that respondents believed that petitioner denied their son a FAPE at least as far back as November 2001 when they hired the private tutor for their son (Tr. p. 647), but they did not request an impartial hearing until October 8, 2003 (Dist. Ex. 12).  I find that respondents' claims for the 2001-02 school year are untimely under the one-year statute of limitations and are therefore dismissed (Application of a Child Suspected of Having a Disability, Appeal No. 04-059; Application of the Bd. of Educ., Appeal No. 02-119).

            I now turn to the merits of this case and address petitioner’s contention that the impartial hearing officer erred in determining that it had denied respondents’ son a FAPE.  Respondents content that their son’s May 27, 2003 IEP was flawed because the CSE did not review the student's progress at the CSE meeting (see Ans. ¶ 42).  The CSE is required to review each student's IEP periodically, but not less than annually, to determine whether the annual goals for the student are being achieved (34 C.F.R. § 300.343[c][1]; see 8 NYCRR 200.4[f]).  Significantly, petitioner's CSE chairperson testified that the CSE did not review the student's progress reports or goals and objectives at the CSE meeting because this was done at the "building level" meeting (Tr. pp. 227-28), at which the student's teachers would make recommendations for goals and objectives for the student's IEP meeting (Tr. pp. 227-28, 465-66).  With respect to the student's May 27, 2003 IEP, the record indicates that petitioner's CSE failed to review and appropriately address progress toward the student's annual goals in its review and revision of the IEP (see 34 C.F.R. § 300.343[c]; 8 NYCRR 200.4[f][1]).

            The goals and objectives for the 2003-04 IEP are substantially similar to the goals and objectives for the 2002-03 school year (Dist. Exs. 3, 4; see Dist. Exs. 1, 2).  I agree with the impartial hearing officer that the goals and objectives of the student's 2002-03 and 2003-04 IEPs (Dist. Exs. 1-4) failed to directly address the student's individual needs and that petitioner's CSE failed to recommend appropriate special education services to afford the student a reasonable opportunity to achieve goals and objectives that addressed the student's individual needs (IHO Decision, p. 23).  I note that the student had a clinical neuropsychological examination conducted in June 2002, which indicated that the student had difficulty with phonological awareness and phonetic decoding (Dist. Ex. 5 at p. 4).  The student's September 13, 2002 IEP for the 2002-03 school year did not contain the type of decoding goals that would allow this student to achieve phonemic decoding skills to develop his areas of weakness as described in the June 2002 clinical neuropsychological examination report, and thus, be reasonably calculated to enable the student to receive educational benefits (Dist. Ex. 2).  The record indicates that the September 13, 2002 IEP was created for the purpose of removing speech therapy at the mother's request (Dist. Ex. 2 at p. 4; Tr. pp. 172, 178).  In addition, the one goal targeting decoding, "[The student] will decode beginning consonants" with 80 percent accuracy (Dist. Exs. 2 at p. 10, 3 at p. 10) only minimally addressed the student's needs regarding developing phonemic decoding skill to enable the student to learn to read (Tr. p. 661).

            Having determined that petitioner's CSE failed to provide respondents' son with a FAPE, I now turn to a determination of whether respondents have met the remaining criteria for an award of reimbursement.  The private tutor is both special education and Wilson certified (Tr. p. 646).  The private tutor testified that reading is a struggle for the student, and that in order for the student to learn how to read, he needs to learn the rules of decoding (Tr. p. 753).  The student was described as being "functionally illiterate" when he began the tutoring sessions (Tr. p. 650).  He was unable to read the words "cat" and "shop," had limited sight vocabulary, did not like to read, and overall was not reading (Tr. p. 649).  At the time of the hearing, the student had already progressed from Book 1 to Book 7 in the 12-book Wilson program (Tr. p. 792).  The private tutor indicated that the student had made significant progress in decoding and breaking words down, including multi-syllabic words (Tr. p. 650).  The tutor estimated that the student could read at approximately the high third to low fourth grade reading level, and could read some of the material he gets from school (Tr. p. 651).  The student's confidence with reading had improved and teacher reports indicated that the student likes to volunteer in class (Tr. pp. 751-52).  I agree with the impartial hearing officer's determination that the parents' selection of private tutoring services was appropriate for the student (IHO Decision, p. 30).  This is supported by the recommendation that the student receive multi-sensory instruction, as set forth in the June 2002 clinical neuropsychological examination report (Dist. Ex. 5 at p. 5).

            The third and final criterion for tuition reimbursement is whether equitable considerations support the parents' claim for reimbursement.  I find nothing in the record to persuade me that the parents did not cooperate with the district as the impartial hearing officer found or that the equities do not favor respondents' claim regarding reimbursement for the cost of a private tutor (seeIHO Decision at p. 32).

            Respondents cross-appeal and contend that the impartial hearing officer should have also awarded reimbursement for the cost of their son's tuition at the 2003 Kildonan summer program.  The student's mother requested that the student attend the summer program at Kildonan at the May 27, 2003 CSE meeting (Dist. Ex. 4 at p. 3).  Petitioner's CSE did not recommend special education services for the summer of 2003 because there was no evidence of likelihood of substantial regression during the summer months (Dist. Ex. 4 at p. 3; Tr. p. 293).  Students shall be considered for extended school year (ESY) services in accordance with their need to prevent substantial regression (8 NYCRR 200.6[j]; Application of the Bd. of Educ., Appeal No. 04-102).  Substantial regression is the inability of a student to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year (8 NYCRR 200.1[aaa]). Because the evidence does not show that the student would experience substantial regression during the summer, I concur with the impartial hearing officer that tuition reimbursement for the 2003 Kildonan summer program should not be awarded.

            I have found without merit respondents' claim that they are entitled to reimbursement of tuition expenses for the 2001-02 school year and their claim that they are entitled to reimbursement of tuition expenses for the 2003 Kildonan summer program, therefore, I need not reach respondents' remaining contentions.

            I have reviewed petitioner's remaining contentions and I find them to be without merit.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.