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


WNY Advocacy for the Developmentally Disabled, Inc., attorney for petitioners, Roger G. Nellist, Esq., of counsel

Harris Beach, LLP, attorney for respondent, David W. Oakes, Esq., of counsel


            Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their daughter’s tuition costs at the Norman Howard School for the period between May 6, 2004 and June 30, 2004 and denied their request for their daughter’s placement by the district at the Norman Howard School for the 2004-05 school year.  The appeal must be dismissed. 

           At the time of this hearing, the student was 14 years old and attending the eighth grade at the Norman Howard School (Norman Howard).  The student was unilaterally placed at Norman Howard by her parents in May 2003.  The student’s classification as a student with a learning disability  (LD) is not in dispute.

           The student attended private and parochial schools from kindergarten through second grade (Tr. p. 525; Parent Exs. 1, 2, 3).  On October 7, 1993, at the age of three, the student was evaluated by Monroe County Board of Cooperative Educational Services (BOCES) staff due to parental concerns regarding speech and language development (Parent Ex. 1).    The student exhibited age appropriate cognitive ability and her receptive and expressive skills were found to be evenly developed (id.).  The student was not found eligible for special education services (id.).                   

            The student was evaluated again on August 29, 1994 by BOCES staff (Parent Ex. 3).  Petitioners reported that their child became frustrated when interacting with peers and cried at home each day.  The evaluator noted that the student’s expressive and receptive language skills were within the average range.  The evaluator cautioned, however, that the auditory perceptual areas of word retrieval, auditory memory for sequence and delayed response time should be monitored because the student was at risk for learning difficulties and social-emotional concerns if these perceptual skills did not develop commensurate with the rest of her skills. 

          An educational observation, while the student attended second grade in parochial school, was conducted on June 9, 1999 (Parent Ex. 4).  The observation reports of the student’s teachers described the student as having word learning and reading problems and a slow rate of progress in reading.  The student’s feeling of well-being was reportedly affected by her academic performance.  Auditory processing in short-term memory was noted as an area of difficulty.  The student was described by her second grade teacher at the parochial school as standing out and being unhappy most of the time.  Compulsions, such as washing and cleaning her glasses over and over, were noted in second grade.

          A private psychologist conducted a psychological evaluation on August 22, 1999 due to parental concerns about the student’s social, emotional and academic development (Parent Ex. 5).  The psychologist reported that the student struggled a great deal with short-term memory skills and was documented to have difficulties with auditory discrimination, auditory memory and interpretation of directions.  Processing information auditorially or visually was difficult for the student.  Her processing speed was described as slow and her learning style as rigid and avoidant.  The student was also described as having many fears and anxieties that interfered with her learning and with her social and emotional functioning.

         Test results indicated that the student was functioning within an average range of intellectual ability but her achievement scores in reading, math and spelling all placed her below the average range and were significantly discrepant from her cognitive profile (Parent Ex. 5).  The evaluator described the student as having specific learning disabilities in reading, math and written language.  The student’s learning was also reported to be significantly impacted by her “emotionality.” The evaluator recommended, inter alia, the following: the student receive special education services in the areas of math, reading, and written language; a speech/language evaluation be conducted; and participation in routine and small group social skill activities.  The evaluator recommended that the family seek a psychiatric consult after finding that her learning and social functioning were significantly impacted by her emotionality and that she exhibited many of the characteristics commonly associated with children with obsessive-compulsive disorders. 

          Respondent found the student eligible for special education services on August 30, 1999, classifying the student as a student with a learning disability (Parent Ex. 11; see 8 NYCRR 200.1[zz][6]).  The student enrolled and attended third grade in respondent’s district at the beginning of the 1999-2000 school year.  Respondent’s Committee on Special Education (CSE) developed an individualized education program (IEP) in November 1999 that placed the student in a supported third grade classroom and provided the student collaborative consultant teacher services in the areas of reading, language arts and math.  Program modifications included accessible teacher support to prevent student shutdown.  Testing modifications included flexible scheduling, extended time, flexible setting in a small group and revised test directions including repeating/restating directions and the provision of additional examples. 

         The student was referred to BOCES by respondent for a Central Auditory Processing Evaluation (CAPE) on January 1, 2000 due to concerns regarding her academic progress (Parent Ex. 9).  The evaluators reported that testing results were significant for a central auditory processing disorder in the areas of tolerance-fading memory, decoding and integration.  The results indicated problems with following directions, distractibility, short-term memory, reading and written language.  Auditory memory tasks were reportedly challenging for the student.  Recommendations included intervention including environmental and instructional modifications as well as teaching of specific skills and compensatory strategies.

          Respondent reconvened a CSE on December 7, 2000 to develop an IEP for the remainder of the fourth grade and the beginning of the fifth grade (Parent Ex. 19).  The CSE minutes reflect that the parents reported that the student enjoyed coming to school and her self-esteem had improved (Dist. Ex. 58). The student’s teachers reported a significant improvement in the student’s level of confidence (id.). The student’s auditory processing skills were reportedly weak and her recall of information was noted as a concern.  The student participated in a special skills group three days a week that helped her develop strategies for learning.  Results of the CAPE assessment from BOCES were incorporated into the IEP (Parent Exs. 9, 19; Dist. Ex. 58).  

          Under the social development section of the December 7, 2000 IEP, the student was described as happy and improving in confidence and self-esteem (Parent Ex. 19).  The student was observed to begin to reach out to form relationships with peers.  Management needs were identified as academic independence and organization.   Recommended services included the following: consultant teacher services in reading, language arts and math for 180 minutes daily; speech therapy consult once a month to address auditory processing; and counseling services once a week in a group setting for 30 minute sessions.  Goals and objectives in the area of reading addressed decoding, fluency, word identification and comprehension.  Goals and objectives in the area of writing addressed the development of expressive language skills in conjunction with reading skills.  Goals and objectives in math addressed growth in math computation, application and problem solving skills.  Additional goals and objectives addressed organizational skills and management of emotions.  The school counselor reported that the student had made gains in her comfort level in discussion of stressors that affect school performance and that the student enjoyed lunch-time counseling sessions with a selected friend. 

          An interim review of progress on the student’s goals and objectives dated March 20, 2001 indicated that the student had made at least some progress in every area with an exception of one objective related to multiplication facts (Parent Ex. 21). 

          On June 11, 2001, the student was evaluated using the Woodcock Reading Mastery Tests–Revised  (WRMT–R) and the Sucher-Allred Reading Inventory (SARI) (Parent Ex. 25).  At the time of testing, the student was at the end of her fourth grade year.  Scores on the WRMT-R indicated that her word identification skills were equivalent to the 3.1 grade level and her word attack skills were equivalent to the 2.0 grade level.  The SARI scores indicated that her independent reading level was equivalent to a 2.1 grade level, 2.2 for instructional level and 3.1 for frustration level.  For reading comprehension, the student’s scores indicated that her independent reading level was equivalent to the 2.2 grade level, her level for instruction at the 3.1 grade level and her level for frustration at the 3.2 grade level.  The evaluator recommended a multisensory approach to reading and structure and intense repetition to achieve mastery.

          A second CAPE was administered by BOCES on August 1, 2001 (Parent Ex. 26).  Results of this CAPE assessment indicated that the student’s hearing was well within normal limits and that her normal middle ear function was normal.  Results further indicated a mild to moderate central auditory processing problem related to decoding limitations, a fading auditory memory and difficulty listening in the presence of background noise.  Recommendations for classroom strategies included preferential seating, the use of visual aids with auditory information, continuation of related services to work on improving her auditory conceptualization, additional time when working on assignments and a separate work area, if needed. 

         During the 2001-02 school year, the student was in the fifth grade.  During that year, the student participated in respondent’s Corrective Reading Program, which met five times a week for 45-minute sessions (Dist. Ex. 46).  The focus of this instruction was on phonemic awareness, sound-symbol identification, sounding out, regular and non-regular words and passage reading.  Respondent’s reading specialist described the Corrective Reading Program as a research based method of direct instruction in reading using a multisensory approach (Tr. pp. 228, 232).  

        A reading report dated November 1, 2001 stated that the student was reading independently at the third grade level and reading on a fourth to fifth grade instructional level, as assessed by the Stieglitz Informal Reading Inventory (Parent Ex. 28).  The student’s reading teacher commented that the student’s comprehension was good when reading silently but her pace was very slow.  On a reading report dated March 1, 2002, the student’s teacher reported that the student had made improvement in word recognition, vocabulary development, sight words and comprehension but that she still exhibited a good deal of inconsistency when reading text.  The student’s fluency was reported as very poor (Dist. Ex. 46).

        As part of the student’s triennial re-evaluation, a Diagnostic and Prescriptive Evaluation was conducted through BOCES on March 14, 2002 (Parent Ex. 45).  The student was assessed using the Woodcock Reading Master Test–Revised (WRMT–R).  The student achieved substest scores in the 15th percentile in word identification, in the 23rd percentile in word attack, and in the 15th percentile in passage comprehension.

        The evaluator noted that these scores were below the average range.  The student was reported to not use decoding skills successfully, relying more on word configuration and context to identify words.  The evaluator stated that the student could comprehend at grade level but her word recognition is below grade level making it difficult to determine her exact reading level.  Recommendations included instruction in reading fluency and accuracy at the third grade level and involvement in pre-reading/listening activities before class or independent reading.  The student also required extra time to complete reading assignments. The evaluator stated that the student’s auditory memory weaknesses and her visual strength stress the need for multisensory instruction whenever possible.

        A psychological evaluation was conducted on March 25, 2002 (Parent Ex. 46).  The Woodcock Johnson III Tests of Cognitive Abilities (WJ III) was administered to the student to examine her cognitive processing abilities.  The results indicated that the student’s overall intellectual ability was average but her cluster scores ranged from the   first stanine (lower extreme) to the seventh stanine (above average).  The evaluator reported that investigating these cluster scores more closely revealed very weak development in the clusters involving cognitive fluency (SS=70), processing speed (SS=69), broad attention (SS=77), short-term memory (SS=74), working memory (SS=76), and cognitive efficiency (SS=67).  In contrast, the student’s thinking ability (SS=111), visual-spatial thinking (SS=118), and fluid reasoning (SS=111) were found to be well developed.  The student’s auditory processing (SS=100) and phonemic awareness (SS=101) were found to be average.  The evaluator concluded that the student demonstrated average cognitive ability with significant processing deficits.  Her profile reflected very weak processing related to fluency, or speed of processing.  The evaluator suggested that the student’s learning style required a multi-modal approach, tapping into many routes to memory and storage as possible.  The evaluator recommended that parts of her IEP address issues of memory, fluency and anxiety.

        Respondent convened a CSE on May 1, 2002 to develop the student’s 2002-2003 sixth grade IEP (Dist. Ex. 41).  Recommendations included consultant teacher services in the general education environment for reading, language arts, social studies, science and math, each for three times a week for 30 minutes.  Counseling was recommended in a group setting outside of general education once a week for 30 minutes.  Resource room in a group setting was recommended daily for 40-minute sessions outside the general education environment.  Summer services were recommended and program modifications included provision of teacher notes, pre-teaching vocabulary and concepts, multisensory reading program, slow and careful speech, directions restated, preferential seating, small group, visual aids and books on tape.  Processing modifications included frequent pauses, alternative workplace for independent work, structure and written homework routine, graphic organizers, additional time to complete work, use of word lists and word banks.  Additional modifications included shortened homework assignments, reduced class work and the use of verbal and scribed responses. Assistive technology included a calculator, talking spell checker, FM system, predictive word processing program and word processor. Transition planning to middle school included visitations and a map of the building.  Testing modifications included flexible scheduling, flexible setting, revised test directions and the use of aids.  A behavioral intervention plan (BIP) was included that identified stress producing events for the student.  A parent-teacher log was incorporated for daily use to inform the parents of the student’s emotional status.  A Likert scale was employed for the student and teacher to chart daily emotional status and feeling.  The logs were to be sent home daily and taken to the student’s mental health counselor bi-weekly.  A second strategy identified in the BIP for the student was a “feeling thermometer,” to be used by the student to identify levels of feeling in the classroom to the teacher by placing colored cards on her desk that corresponded to her comfort level.  

            The student completed sixth grade at respondent’s school (Dist. Ex. 30).  Petitioners were concerned about the student being anxious and overwhelmed at home with respect to her schoolwork (Tr. pp. 578-580, 753).  Petitioners unilaterally placed the student at Norman Howard for the 2003-04 school year (Tr. pp. 20, 30).  The student attended Norman Howard for the duration of the seventh grade (Dist. Ex. 15)

            Respondent’s CSE developed the student’s 2003-04 seventh grade IEP on August 28, 2003 (Dist. Ex. 27).  In this IEP, the student’s needs were described as having significant delays in processing speed, short-term memory, decoding skills, spelling, broad attention and cognitive efficiency (id.).  Evaluations consistently identified that the student needed extended time to process information, a multi-modal approach to learning and organizational supports (Parent Exs. 45, 46; Dist. Ex. 27).  The student was described as having a significant delay in reading decoding, reading comprehension, math calculation, math concepts, written expression, language skills, social skills, anxiety and attentional skills (Dist. Ex. 27).  Recommended program and services included a consultant teacher in an integrated group setting, daily, for 30-minute sessions (id.).  Resource room was also recommended in a 5:1 non-integrated setting on a daily basis for 40-minute sessions (id.).  Counseling was recommended in a group setting once a week for 30 minutes (id.).  The student’s BIP continued to address her anxiety related to academic performance and continued to support the student in recognizing the onset of symptoms of anxiety and offering the student the opportunity to diffuse the identified anxiety with a variety of methods (Tr. p. 85; Dist. Ex. 29).  Program modifications on the IEP included access to class notes, preferential seating, alternative work site if needed, graphic organizers, access to a word processor, a structured and written homework routine, use of word lists and word banks, graphic organizers and mnemonics (Dist. Ex. 27).  Shortened homework assignments and extended time for tasks were also recommended (id.).  Testing accommodations included small group, additional examples, repeat directions, spell check device, calculator, markers, word processor, flexible setting and extended time (id.).  Assistive technology included an FM system books on tape, spelling device, and access to predictive word processing program and tape recorder (id.). 

            Respondent convened a CSE on May 6, 2004 to develop the student’s IEP for 2004-05, the student’s eighth grade year (Parent Ex. 107).  The director of special education from Norman Howard, the student’s teacher from Norman Howard, the student’s counselor from Norman Howard, the parents and district staff were in attendance (Tr. p. 21; Parent Ex. 107).  At the CSE meeting, the student’s teacher was asked to furnish respondent updated academic achievement scores (Tr. p. 212).  An IEP for the 2004-05 school year was developed after the May 6, 2004 CSE meeting which mirrored the student needs, the recommended programs and services, and the modifications and accommodations contained in respondent’s IEP from the year prior (Parent Ex. 107; Dist. Ex. 28).  At the May 6, 2004 CSE meeting, petitioners requested reimbursement for the student’s tuition at Norman Howard from May 6, 2004 through June 30, 2005.  Petitioners’ request was reiterated in a letter to respondent dated June 8, 2004 (Dist. Ex. 2). 

            The student’s teacher at Norman Howard e-mailed a written statement on June 1, 2004 to respondent’s school psychologist with the information that had been requested (Tr. p. 213).  A CSE meeting was scheduled for July 30, 2004, but did not proceed due to the absence of necessary members (Tr. pp. 310, 755, 756; Dist. Ex. 1). 

             By letter dated August 6, 2004, petitioners requested an impartial hearing regarding the student’s “program and placement” (Dist. Ex. 1).

             Another CSE meeting was scheduled and held on August 30, 2004 (Dist. Ex. 8).  At this meeting, the CSE changed its program recommendation to a 12:1+1 special class placement for core academic areas from the consultant teacher and resource room model recommended at the May 6, 2004 CSE meeting (Tr. p. 283; Dist. Ex. 8).  This change was made reportedly due to the anxiety and emotional concerns of the student expressed by the staff at Norman Howard and petitioners at the CSE meeting (Tr. p. 283).  The 12:1+1 special class recommended by the CSE was described as a small group instructional setting where the services are delivered by a special education teacher and a teaching assistant (Tr. p. 286).  The 12:1+1 special class is further supported by an assigned social worker and a psychologist who consults regularly with the teacher (Tr. p. 297).  Petitioners rejected this placement (Tr. pp. 602-611, 757).   

            The impartial hearing was held on four days between September 16, 2004 and September 23, 2004.  In a decision dated December 24, 2004, the impartial hearing officer found that respondent offered to provide the student a free appropriate public education (FAPE) for seventh and eighth grades (IHO Decision, pp. 8-9).  The impartial hearing officer, therefore, denied petitioners tuition reimbursement for Norman Howard for the period between May 6, 2004 and June 30, 2004 and denied petitioners’ request for placement of the student by respondent at Norman Howard for the 2004-05 school year (id.).

            On appeal, petitioners request that the impartial hearing officer’s decision be “overturned,” that respondent be directed to “assume responsibility for (the student’s) placement at the Norman Howard School for the 2004-05 school year” and that petitioners be awarded “tuition expenditures for school days subsequent to the May 6, 2004 CSE meeting” (Pet. at p. 20).  Petitioners contend that the May 6, 2004 CSE was improperly constituted (Pet. ¶ 58) and that the IEP it developed was not based on an updated description of the student's needs, goals and objectives (Pet. ¶ 65).  They further assert that the program and placement recommendations by the CSE at its August 30, 2004 were inappropriate.

            Respondent asserts that the placement by the district for the 2003-04 and 2004-05 school years offers a FAPE in the least restrictive environment, that any defect in the composition of the May 6, 2004 CSE was waived by petitioners' attendance and participation along with their legal counsel and that any decisions that resulted were superceded by the August 30, 2004 CSE meeting.    

           The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a 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 parent's 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. 04-043). 

           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 Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the student 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).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlett 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 WL31521158 [S.D.N.Y. Nov. 14, 2002]). 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]).

           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, 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]).

          An appropriate 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. 02-059; Application of a Child with a Disability, Appeal No. 01-105).

           With respect to the first criterion for an award of tuition reimbursement, respondent bears the burden of demonstrating that it offered an appropriate program.  I agree with the impartial hearing officer’s determination that respondent met its burden of demonstrating that it offered to provide an appropriate program to the student for the 2003-04 and 2004-05 school years that met the student’s needs.

            Upon a review of the record, I find that the August 28, 2003 IEP developed by respondent for the student’s 2003-04 school year appropriately addressed the student’s educational needs (Dist. Ex. 27).  The IEP contains goals and objectives in the areas of study skills, reading, writing, speech/language and social/emotional/behavioral, all of which have been identified as needs for this student.  These goals and objectives address how the student will be involved in and progress in the general curriculum and address how the IEP will meet the student's needs (34 C.F.R. Part 300, Appendix A Notice of Interpretation, Question 1). These goals and objectives provide defined expectations for teachers, defined targets for the student to aim her efforts, and provided reasonably defined areas of content for the parents to gauge the student's progress.  The student’s identified areas of need related to her disability were addressed through an array of appropriate program modifications, testing modifications and assistive technology devices. 

             Prior to the development of the 2003-04 IEP, the record reflects that the student made academic progress during the 2002-03 school year under a similar IEP (Dist. Ex. 41).  In June 2002, the student was administered the Test of New York State Standards (TONYSS) (Parent Ex.54).  Testing on the key ideas in mathematics revealed that the student obtained a performance level of 3 that indicated proficiency (id.). The testing report stated that the student provided sufficient evidence of knowledge of key mathematical ideas (id.). In English Language Arts, the student also scored a level 3, indicating proficiency (id.).  The testing report stated that the student had shown good development of reading, listening and writing skills (id.). 

              On December 1, 2002, a reading progress note stated that the student was making progress in respondent’s Corrective Reading Program (Dist. Ex. 37).  Teacher reports dated December 20, 2002 reported satisfactory academic progress in mathematics, with an 82 percent in the first marking period (Parent Ex. 74).  In social studies, science and language arts/reading, the student was reported to have made excellent progress (id.). 

               On January 30, 2003, the student received a report card that had A’s in all subject areas with the exception of a B in music and math (Dist. Ex. 34).  On March 28, 2003, the student was administered the WRMT-R in order to ascertain any growth the student made in a year’s time (Dist. Ex. 33).  A comparison of 2002 and 2003 scores revealed significant growth in word attack and passage comprehension (id.).  Percentile ranks for word attack increased from 23 percent to 34 percent and for passage comprehension from 15 percent to 48 percent (id.).  Word identification percentile rank was 15 percent in 2002 and 11 percent in 2003 (id.). 

                In April 2003 the student’s progress reports indicated that in language arts/reading the student was making satisfactory progress with a current grade of A- (Dist. Ex. 32).  In science, the student was making excellent progress with a current grade of A-.  In social studies, the student again was reported to be making excellent progress with a grade of B+.  In math, the student was reported to be making satisfactory progress. 

                A report card dated June 24, 2003 reported that the student received all A’s and B’s (Dist. Ex. 30).  The student’s sixth grade special education teacher testified that the student did very well academically (Tr. p. 41).  All of the student’s teachers reported that the student had earned her grades (id.).  The special education teacher clarified in testimony that although the student’s instruction was modified, the curriculum was not (Tr. p. 46). 

                Based upon the information before me, I find that the program developed by petitioner's CSE for the student for the 2003-04 school year provided appropriate personalized instruction and related services to meet the student's appropriately identified needs.  I further find that respondent met its burden of demonstrating that the recommended program, at the time it was formulated, was reasonably calculated to confer educational benefits and likely to produce progress for the 2003-04 school year. Finding that the student was offered a FAPE for the 2003-04 school year, I now address the 2004-05 school year. 

               Upon a review of the record, I find that the IEP developed at the August 30, 2004 CSE meeting is the student’s IEP for the 2004-05 school year, superceding the IEP developed for the 2004-05 school year at the May 6, 2004 CSE meeting (Parent Ex. 107; Dist Ex. 8).  Upon reviewing the August 30, 2004 IEP, I find that respondent offered to provide the student a FAPE for the 2004-05 school year.  The 2004-05 IEP developed by respondent appropriately addresses the student’s educational needs (Dist. Ex. 8).  This IEP contains goals and objectives in the areas of study skills, reading, writing, speech/language and social/emotional/behavioral, all of which continue to be identified needs for this student.  The student’s identified needs are again addressed through an array of appropriate program modifications, testing modifications and assistive technology devices.

                The change in program in the 2004-05 IEP to a 12:1+1 special class placement for core academic areas reflects the input given by the staff at Norman Howard and petitioners to the CSE with respect to the student’s continuing anxiety and emotional concerns.  I find the proposed 12:1+1 special class, wherein services are delivered by a special education teacher and a teaching assistant in a small group instructional setting with the support of a social worker and a psychologist to be reasonably calculated to meet the educational needs of the student.  This model would be held in a public school setting, allowing the student interaction with nondisabled students, and affords the student the opportunity to participate in the general curriculum.

                Having determined that the IEPs for the 2003-04 and 2004-05 school years are adequate and that respondent has met its burden of proving that it had offered to provide a FAPE to the student for those years, I agree with the impartial hearing officer’s determination that petitioners are not entitled to tuition costs at the Norman Howard School for the period between May 6, 2004 and June 30, 2004 and are not entitled to have respondent assume responsibility for the student’s placement at the Norman Howard School for the 2004-05 school year.  I need not reach the issue of whether or not the Norman Howard School is an appropriate placement for the 2003-04 or 2004-05 school years (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. 


Topical Index

Annual Goals
Parent Appeal
Present Levels of Performance