05-032

            Petitioner appeals from that portion of the decision of an impartial hearing officer which determined that the individualized education program (IEP) respondent's Committee on Special Education (CSE) recommended for her daughter for the 2003-04 school year was appropriate.  The appeal must be dismissed. 

            At the outset, a procedural matter must be addressed. Respondent raises an affirmative defense asserting that the appeal was commenced in an untimely manner and must be dismissed.  A petition for review to the State Review Officer must comply with the timelines specified in section 279.2 of the Regulations of the Commissioner of Education (8 NYCRR 279.13). The petition for review shall be served upon the respondent within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period, as required by 8 NYCRR 279.2(b).  A State Review Officer, in his or her sole discretion, may excuse a failure to timely seek review within the time specified for good cause shown (8 NYCRR 279.13). The reasons for the failure to timely seek review shall be set forth in the petition (id.). An answer to a petition may interpose procedural defenses and a reply may be submitted in response to defenses raised in the answer (8 NYCRR 279.6).

          The impartial hearing officer’s decision is dated January 27, 2005. The record reveals that the decision was served on petitioner by mail. On March 10, 2005, petitioner served respondent with a notice with petition and petition for review. The petition should have been served on March 9, 2005, therefore, it was served beyond the service deadline established by state regulation. Petitioner offers no excuse or good cause in her petition for the late service of the petition for review. As an affirmative defense, respondent asserts that the appeal be dismissed as untimely. Petitioner has not filed a reply to respondent’s procedural defense (8 NYCRR 279.6).  Petitioner offers no explanation for the delay in serving the petition for review; therefore, I have no basis upon which to excuse the delay.  I find that the appeal is untimely and the petition is, therefore, dismissed (Application of a Child with a Disability, Appeal No. 04-067; Application of a Child with a Disability, Appeal No. 03-109; Application of a Child with a Disability, Appeal No. 02-096).^1,2 

         Despite dismissing the petition as untimely, I have reviewed the merits of petitioner’s appeal and concur with the impartial hearing officer that respondent demonstrated that it offered an educational program which was reasonably calculated to confer educational benefits to petitioner’s daughter for the 2003-04 school year.

         The student was 15 years old (Dist. Ex. 1 at p. 1) and in the tenth grade (Tr. p. 23) at respondent's high school when the impartial hearing began in September 2004.  The student's eligibility for special education and her classification as a student with a learning disability (LD) are not in dispute in this appeal (see 8 NYCRR 200.1[zz][6]).

          A brief discussion of the student’s educational history is warranted. The student began attending public school in respondent's district during her kindergarten year (Tr. p. 433).  She was initially classified as a student with a speech or language impairment when she was in first grade (Tr. p. 548; Dist. Ex. 5 at p. 1).  Placement in a 12:1+1 integrated setting with speech as a related service was recommended at that time (Parent Ex. Q at p. 1).  An April 1997 psychological follow-up report, completed during her second grade year, indicated that the student had significant weaknesses in mathematical reasoning, reading comprehension and written expression (Dist. Ex. 5 at p. 2).  Short-term recall and attention focusing skills were also reported to be weak (id.).  As a result of this evaluation, respondent's CSE changed the student's classification to LD, however, the student remained in a 12:1+1 integrated setting with speech as a related service.  Two months later, a technology consultation recommended computer access and software, as well as follow-up consultations (id.).  A subsequent technology consultation resulted in computer software recommendations that targeted written language and math skills (id.).

            In May 1999, when the student was in fourth grade, a speech-language evaluation revealed the student's overall language skills to be within the average range, with subtest scores suggesting relative weaknesses in some areas (Dist. Ex. 5 at p. 2).  The student's first triennial evaluation was conducted in January 2000, during the student's fifth grade year (id.).  At this time, Mathematics continued to be an area of significant weakness; reading skills were no longer an area of deficit (id.).  The evaluator noted that the student had a good phonetics approach (Parent Ex. N).

          Administration of the Wechsler Intelligence Scales for Children-Third Edition (WISC-III) in January 2000 yielded a verbal IQ score of 92 (average range), a performance IQ score of 123 (superior range), and a full scale IQ score of 107 (average range) (Dist. Ex. 5 at pp. 3, 4). The triennial report reviewed in June 2003 noted that the student's performance IQ score from the January 2000 WISC-III administration was significantly higher than the May 1996 WISC-III administration, when the student's score of 94 was in the average range.

            In an October 2000 neurological summary, the physician noted that the student "appeared well related," had made excellent progress, and did not appear to have significant attentional or social problems (Parent Ex. R at p. 2).   He reported, inter alia, the student's unusual change in IQ scores and the marked discrepancy of 31 points between the student's verbal and performance scores (Parent Ex. R).  In a February 2001 administration of the Test of Written Language-Third Edition (TOWL-3), during her sixth grade year, the student performed at grade level (50th percentile) in contextual language, with a grade equivalent of 4.7 (25th percentile) in contextual conventions and a grade equivalent of 4.0 (37th percentile) in story construction (Parent Ex. S). In March 2001, a speech-language evaluation reportedly revealed that the student's overall language skills were in the average range, with a "few relative weaknesses" (Dist. Ex. 5 at p. 2; Parent Ex. U at pp. 1, 2). 

           A psychoeducational evaluation, conducted by a Westchester Medical Center learning specialist/psychologist May 18, 2001 through June 27, 2001, measured the student's general intellectual ability (GIA) through administration of the Woodcock-Johnson Tests of Cognitive Abilities (WJ-III COG) (Parent Ex. U at pp. 2-4).  The student's GIA was found to be in the average range for both grade and age.  Verbal ability was found to be at better than 51 percent of same age peers, with thinking ability found to be at the 36th percentile rank for age.  Cognitive efficiency, a measure of the ability to automatically process information and maintain concentration, which includes processing speed and short-term memory measures, was in the low average range and ranked at the 22nd percentile for age. 

          The evaluator advised that care be taken not to present too much new information requiring memorization at once, and to allow for sufficient practice and generalization (Parent Ex. U at p. 4).  Based on the student's difficulty with understanding directions, the evaluator concluded that she would benefit from modeling and step-by-step instructions when confronted with multi-step problem solving tasks (id. at p. 5).  The evaluator reported that synthesis was easier than analysis for the student, and that she has widely disparate auditory processing skills (id. at p. 5).  Recommendations included teaching the student compensatory strategies such as rehearsal, visualization, chunking, and mnemonics, in addition to teaching her paraphrasing skills (id. at p. 6).  The student was found to have significant strength in listening comprehension, but to be three or more years delayed in reading comprehension, phoneme-grapheme associations, and math fluency (id. at p. 10).  The evaluator concluded that criteria existed for a learning disabled diagnosis.  A speech evaluation conducted around this same time revealed that the student’s expressive and receptive language skills were within normal limits (Parent Ex. B at p. 2, Parent Ex. U at p. 10, Dist. Ex. 5 at p. 2).  Inclusion class and resource room services were recommended (id.).

            In July 2002, after completion of the student's seventh grade year, an educational evaluation was conducted (Dist. Ex. 5 at p. 2).  Academic scores were reported to be in the average to low average range, while oral expression skills were reported to be superior and mathematical reasoning was reported to be in the below average range.

            A June 11, 2003 triennial evaluation report produced during the student’s eighth grade year, indicated that the student was placed in a special class integrated for "major subjects," and a special class nonintegrated for reading three times within a six-day cycle (Dist. Ex. 5 at p. 1).  The student participated in a learning center one period daily (id.).  The triennial evaluation also indicated that the student was no longer receiving speech therapy (Dist. Ex. 5 at p. 3).  Counseling was reportedly added to the student's IEP in January 2003 to develop strategies toward improvement of self-expression, to cope with frustration, and to provide an outlet for stress management (id.).  The student also reportedly received testing modifications (id.).  The evaluator noted that the student was cooperative and attentive throughout the triennial evaluation testing, persisting on difficult tasks (id.). 

            The June 11, 2003 triennial evaluation report indicated that the student's level of intellectual functioning was assessed through the administration of the WJ-III COG (Dist. Ex. 5 at p. 4).  She received a score of 95 (average range) on the GIA cluster (id. at pp. 4, 5).  Academic assessment, through the administration of the Woodcock-Johnson Tests of Achievement-Third Edition (WJ-III), revealed average range scores in the areas of understanding directions, following directions as per an auditory recording, letter-word identification, reading fluency, and passage comprehension (id. at p. 6).  She received a low average score in the area of story recall using an auditory recording (id.).  The student's broad written language cluster, which includes the areas of spelling, writing fluency, and writing samples, was within the average range (id. at p. 7).  The evaluator also noted that the student was average in her ability "to produce written sentences that are evaluated with respect to quality of expression with increasing passage length, level of vocabulary, grammatical complexities, and level of concept abstraction" (id.).  The student's overall math skills were evaluated as average (id. at pp. 7, 8).           

           The CSE met on June 11, 2003 for an annual review of the student’s program (Dist. Ex. 4).  The IEP generated at that meeting indicated that the student had a significant delay in math fluency, difficulties with estimation and problem solving, and weaknesses in verbal comprehension.  It also noted that the student had processing problems and required extra time for reading comprehension. The student was described as having a quiet demeanor. According to the IEP, the student’s inferential reading comprehension skills had improved and she was able to independently find answers and information in her textbook.  The student’s math fluency had also reportedly improved since 2001.  For the 2003-04 school year, the committee recommended the student receive daily resource room services and eight counseling sessions during the course of the school year. The student was also apparently placed in integrated classes for content area courses, however, this was not noted on her IEP (Tr. pp. 25-26, 525).  The student’s IEP included the following program modifications and/or supports for personnel:  computer with updated software provided at home, assignments broken down into steps, review weaknesses in assignments, check for understanding, utilize a formal planner, provide preferential seating in first two rows, communicate with home as needed, allow gum chewing or hard candy to offset motor overflow and improve attention and focus, and provide vocabulary and outline (unit) at the beginning of material.  Testing accommodations included use of calculator, extended time (x2) and simplification of language in directions. The student was exempt from a second language. The recommended goals and objectives targeted the student’s study skills, math skills and social skills/emotional development (Dist. Ex. 4).

           By letter dated December 2, 2003, the student’s parent requested a CSE meeting citing “problems” with the student’s IEP, which were causing her academic difficulty (Parent Ex. G). A progress report for the period ending December 12, 2003 indicated that the student was in danger of failing the marking period in Science, that her grade range for Social Studies was 65-69 and that she was not attending her music lessons (Parent Ex. I).  The CSE convened on December 17, 2003 for a program review (Parent Ex. H, Dist. Ex. 2).  According to meeting minutes, the student’s mother reported that the student was having difficulty with reading and writing, as well as with concepts (Dist. Ex. 2 at p. 5).  The student’s Science teacher offered to stay late to assist the student with completing her labs and the student’s IEP was amended so that one day a week the late bus would drop her off at her home (Tr. p. 257; Dist. Ex. 2 at p.1).  The change in transportation was made to address a medical problem that made it difficult for the student to walk.  Although the committee recommended special transportation, the student indicated that she was unable to access the transportation due to a lack of information (Tr. pp. 483-84).

           On May 26, 2004, the CSE met to conduct the student’s annual review (Dist. Ex. 1).  Meeting minutes indicated that the student was failing orchestra due to non-attendance, was failing Science, and had not completed numerous labs (id.).  Minutes further indicated that student would probably pass Social Studies, and if she passed fourth quarter Mathematics she would pass math for the school year (id.). The student’s special education teacher reported that the student appeared more withdrawn in class (Tr. pp. 43, 44, 85). Progress reports for the 2003-04 school year indicated that the student mastered objectives related to using textbooks in content areas; computing algebraic expressions; identifying problems, choosing the appropriate operation and solving the problem; and independently assessing the mathematical process required and solving the problem (Dist. Ex. 6 at pp. 2-3).  In addition, the student demonstrated partial mastery of objectives related to understanding language necessary to solve word problems involving any of the four basic math operations, demonstrating the ability to develop and implement strategies to deal with frustration, and demonstrating the ability to seek out appropriate people and ask for help when under stress.  During testimony the student acknowledged that she was absent from each class at least 30 times during the 2003-04 school year (Tr. p. 528), that she did not attend orchestra because she couldn’t read the schedule (Tr. p. 469) and that she skipped resource room (Tr. p. 590). The student’s teachers testified that she missed 32 Social Studies classes (Tr. p. 30), 39 Mathematics classes (Tr. p. 206) and 65 or 66 Science classes (Tr. p. 256).  The record does not indicate that the absences were related to the student's disability (Tr. pp. 30, 134, 175, 474, 528, 533, 583-84).  In addition, the student failed to complete numerous class work and homework assignments (Tr. pp. 34, 39, 75, 101-03, 130, 175, 290, 465, 520) and reportedly refused testing accommodations (Tr. p. 260).  The student’s final grades for the 2003-04 school year were Social Studies (69), English (69), Math 1A (58), Orchestra (57), and Science (54) (Dist. Ex. 7).

          For the 2004-05 school year, the committee recommended that the student receive indirect consultant teacher services for two hours weekly, 12:1+1 special class daily for math and eight counseling sessions within the course of the school year (Dist. Ex. 1 at p. 1). The student’s IEP contained the same program modifications and/or supports for personnel as the previous IEP, with the addition of a note indicating the student’s teacher of record would “identify the orchestra lesson schedule by providing a monthly calendar to clarify which days are lessons and the general education teacher should be closely monitoring when there are schedule changes and informing the student.”  The IEP indicated that the student would be placed in the Regents credit bearing self-contained math class. The IEP also stated that the student should be allowed to use a computer disc (CD) with music during tests/writing assignments due to her sensory motor integration deficits. Recommended goals and objectives targeted study skills, math, and social skills.

         On July 9, 2004 the student’s parent requested an impartial hearing alleging that the student was denied access to a free appropriate public education (FAPE) and that her IEP for 2003-04 had “failed” as evidenced by her failing grades in Regents Earth Science, Math Course 1A and orchestra, as well as the student “barely passing” her Global Studies I and English 9 courses (Dist. Ex. 8 at p. 1, Dist. Ex. 9 at p. 1).  The parent’s request for relief included ordering the CSE to meet and address the failure of the student’s 2003-04 IEP, awarding the student 1:1 instruction in Regents Earth Science, Math Course 1A and orchestra, directing the district to expunge the student’s failing grades, and awarding any other appropriate relief that was just and proper.             

            By letter dated July 21, 2004 to the parties, the impartial hearing officer memorialized a July 20, 2004 pre-hearing conference determination that petitioner's hearing request included the student's 2004-05 IEP (IHO Ex. f at p.1).   

            The impartial hearing began on September 20, 2004 and concluded on November 17, 2004 after eight days of hearings.  The impartial hearing officer rendered his decision on January 27, 2005.  He found that the 2003-04 IEP was reasonably calculated to provide the student with educational benefits (IHO Decision, p. 3).   He determined that the student's teachers were familiar with the June 11, 2004 IEP requirements (IHO Decision, p. 4; Dist. Ex. 4).  The impartial hearing officer also found that, even though the situation was not always within the student's control, the student's excessive absences, failure to submit required work, and failure to take advantage of remedial opportunities offered by the district impeded her academic success (IHO Decision, pp. 4-5).  The impartial hearing officer determined that the IEP requirement for the student’s teachers to provide her with an “outline at the beginning of material,” found in the 2003-04 and 2004-05 IEPs, was not satisfactorily implemented.  The impartial hearing officer directed literal compliance with this IEP requirement (IHO Decision, pp. 6-7).      

              On appeal, petitioner claims that respondent failed to develop an appropriate IEP for the 2003-04 school year.  She also asserts that the 2003-04 IEP was not implemented, based on respondent's failure to provide copies of the IEP document to the student's teachers.  Petitioner contends that her daughter's classroom difficulties were not addressed, and that the student failed three courses as a result of the IEP being inappropriate or not being implemented.   Petitioner asserts that the student's IEP does not expressly address the student's needs arising from delays in areas including but not limited to critical thinking.  She also claims that respondent's proffered relief of summer school is inappropriate because, as offered, it does not provide instruction for students with disabilities.  Petitioner further claims that having her daughter repeat failed classes is an implausible remedy because she would not benefit from being taught the same material in the same manner.  Petitioner concludes by requesting that the State Review Officer annul the impartial hearing officer's decision and award the student 1:1 tutorial services for Regents Earth Science and Math Course A, in addition to either credit for or the provision of orchestra lessons in the stead of those missed during the 2003-04 school year.  Petitioner further requests a finding of a denial of a FAPE for the 2003-04 school year.    The issues raised on appeal are limited to the 2003-04 school year.

             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][D]; 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 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]). Not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  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 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).  This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 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. 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 regulation requires 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 also 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).

            An IEP must also include measurable annual goals, including 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]; see 8 NYCRR 200.4[d][2][iii]).  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][x]).

            Petitioner raises several challenges to her daughter's IEP.  Petitioner alleges that the 2003-04 IEP was not implemented, based on respondent's failure to provide the student's IEP to her teachers. The applicable state regulations require school districts to ensure "that each regular education teacher, special education teacher, related service provider, and/or other service provider…who is responsible for the implementation of a student's IEP is provided a paper or electronic copy of that document prior to the implementation of such IEP" (8 NYCRR 200.4[e][3][i]).  Federal regulations require the student’s IEP to be accessible to each regular education teacher, special education teacher, related service provider, and other service provider who is responsible for its implementation (34 C.F.R. § 300.342[b][2]). 

            The CSE Chairperson testified that the district's "system" is to either provide the teachers with a confidential copy of the IEP, or to have the teachers review a copy of the IEP, and "sign off" that they have viewed the IEP and are knowledgeable of its contents (Tr. p. 329).  The record is inconclusive as to whether a paper or electronic copy of the IEP was provided to the student's teachers. 

            However, respondent has demonstrated that the teachers were shown copies of (Tr. pp. 24, 164, 254; Dist. Ex. 12) and were familiar (Tr. pp. 164-65, 172, 202, 260, 280) with the 2003-04 IEP (Dist. Ex. 4).  The impartial hearing officer credited testimony that the student’s teachers were familiar with the requirements of the student’s IEP (IHO Decision, p. 4). With the exception of the provision of unit outlines to the student, the record reveals that the student’s teachers implemented the IEP (Tr. pp. 28, 34-35, 37-38, 49, 165-66, 168-70, 203, 260, 299-300, 468, 516, 531).  Further, the Social Studies teacher testified that the IEP remained in a folder, was always accessible (Tr. p. 148), and if there were changes in modifications made during a mid-year review, she would receive updated information (Tr. p. 149).  Respondent's conduct appears to have been consistent with federal regulations (34 C.F.R. § 300.342[b][2]).  However, I find that respondent has not demonstrated that it complied with the more stringent requirement of state regulation that paper or electronic copies of the student's IEP be provided to her teachers. I find that under the circumstances presented here, such failure did not result in a loss of educational opportunity to the student (Evans v. Bd. of Educ., 930 F. Supp. 83, 93-94 [S.D.N.Y. 1996]).

            Petitioner argues that respondent's CSE failed to develop an appropriate IEP for her daughter's 2003-04 school year.  Respondent's June 11, 2003 CSE considered the results of the following evaluations when making its recommendation: three psychological evaluations (June 2003, June 2001, December 1999), a speech/language evaluation (March 2001), a report card (May 2003), and an educational evaluation (January 2003) (8 NYCRR 200.4[b]) (Dist. Ex. 4 at p. 4). In addition, the student’s teachers (Tr. p 573; Dist. Ex. 4 at p. 4), as well as the student (Tr. pp. 432-33), her brother (Dist. Ex. 4 at p. 4), and her mother (Tr. p. 319) participated in the CSE meeting.

           A review of the student’s performance on recent testing revealed scores primarily in the average to low average range. The student’s scores on the WJ-III COG administered on February 5, 2003 were within the average range, with the exception of verbal comprehension, which was low average (SS 86) (Dist. Ex. 5 at pp. 4, 5).  The student also scored in the average range on the WJ-III achievement subtests, except for story recall and math fluency which were in the low average range (Dist. Ex. 5 at pp. 6, 7).  The student’s composite scores on the October 4, 2002 Key Math-Revised/NU were all reportedly within the average range (Dist. Ex. 4 at pp. 3, 4, Dist. Ex. 5 at p. 9).  The student scored in the low average range on the estimation and problem solving subtests (Dist. Ex. 5 at pp. 7-8).  

           The 2003-04 IEP was based upon an IEP in 2002-03 that had conferred educational benefit. The student demonstrated both academic and emotional progress during the 2002-03 school year. In the June 11, 2003 triennial evaluation report, the school psychologist noted that, since the prior school year, the student had shown improvement in organization, assignment completion, and attendance (Dist. Ex. 5 at p. 10).  She also noted gains in the student’s self-confidence and ability to seek out school personnel when the student needed to communicate.  The school psychologist further noted that individual counseling had been effective and helpful to the student (id.). Minutes from the June 11, 2003 CSE meeting indicate that the student’s math fluency had improved since 2001 (Dist. Ex. 4 at p. 4).  The resource management teacher reported that the student was one of her best students, working hard and completing all her work (id.).  The student’s special education teacher reported that the student was passing all of her classes with support, that her attendance had improved and that she completed assignments with minimal supports and completed homework (Dist. Ex. 5 at p. 10). The student’s final academic grades for the 2002-03 school year were as follows: Social Studies 8 (81), ELA (73), Math 8 (67), Orchestra (67), Science 8 (74), and Intensive Reading (89) (Dist. Ex. 7). 

           The student's 2003-04 IEP was substantially similar to the IEP recommended for the 2002-03 school year.  The student was recommended for resource room one period per day and counseling eight times a year (Dist. Ex. 4 at p. 1). The recommended goals and objectives appropriately targeted the student’s study skills, math skills and social skills/emotional development.  I find that at the time it was formulated, the June 11, 2003 IEP was reasonably calculated to confer educational benefits to petitioner’s daughter (see Antonaccio v. Bd. of Educ., 281 F. Supp. 2d 710, 724-25 [S.D.N.Y. 2003]).

           In addition, petitioner claims that her daughter's classroom difficulties were not being addressed and that the student failed Earth Science, Mathematics, and orchestra as a result of the IEP being inappropriate or not being implemented. The record does not support these contentions. Moreover, failing grades are not dispositive evidence of a denial of educational benefit (Sherman v. Mamaroneck Union Free Sch. Dist., 340 F.3d 87, 93 [2d Cir. 2003]). Even if the record revealed a lack of progress subsequent to the formulation of the June 11, 2003 IEP, which it does not, a showing of a lack of progress under a particular IEP does not automatically render that IEP inappropriate (Antonaccio v. Bd. of Educ., 281 F. Supp. 2d 710, 724 [S.D.N.Y. 2003]).

           In the instant case, the CSE met in December 2003 to address the parent’s concerns regarding the appropriateness of the student’s program. Special education teachers were provided in the student’s regular education classes (Tr. pp. 23, 29, 525, 578). The student refused test accommodations provided as part of her IEP  (Tr. pp. 260, 296).  Further, due to excessive absenteeism the student missed a substantial amount of instruction in each class she failed (Tr. pp. 30, 206, 256), which had a negative impact on her academic performance (Tr. pp. 30, 129, 175-76, 256, 261).  Throughout the year, the student's teachers offered to provide her with additional support after school, but the student rarely took advantage of this opportunity (Tr. pp. 104, 130, 134-37, 176-77, 257-58). Despite respondent's offer to provide extra help, the student neglected to complete various class projects and homework (Tr. pp. 29-30, 75, 101-04, 128, 130, 175, 290, 520). 

           I note here that the student's inability to read a posted orchestra lesson schedule was alleged to be the basis upon which the student missed orchestra lessons and consequently failed orchestra.  This is a problem for which there were many simple resolutions, among which would have been to request assistance from a fellow classmate, the orchestra teacher, the special education teacher, the special education aide, the guidance counselor, the parent, and/or the CSE.  In point of fact, the student's 2003-04 IEP indicates that the student has many friends and has "sought out school personnel when she feels the need to communicate" (Dist. Ex. 4 at p. 3).  Therefore, it appears deciphering the posted orchestra schedule was within the student's capabilities.  

          A student who does not attend school on a regular basis is not likely to master the curriculum for his or her grade (Application of a Child Suspected of Having a Disability, Appeal No. 97-50).  I have reviewed the student's failing grades in light of the evidence presented.  I find that petitioner's claim that the failing grades were a result of an inappropriate IEP to be without merit.

            Based upon the information before me, I find that the June 11, 2003 IEP accurately reflected the results of evaluations which identified the student's needs, established annual goals and short-term instructional objectives related to those needs, and provided for appropriate special education services in the LRE.  I also concur with the impartial hearing officer's determination, and I find that the June 11, 2003 IEP, at the time it was formulated, was developed consistent with procedural requirements and was reasonably calculated to confer educational benefits to the student for the 2003-04 school year.  Accordingly, respondent has satisfied its burden to demonstrate it offered to provide the student with a FAPE.

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

THE APPEAL IS DISMISSED.