05-046

           Petitioner appeals from those parts of the decision of an impartial hearing officer, which denied her requests for 393 hours of tutorial services for her daughter at the Huntington Learning Center (Huntington) and for the issuance of a “Nickerson letter.”  The appeal must be dismissed. 

            The student was 16 years old and attending the 11th grade at the time of the hearing (Tr. pp. 12, 33).  The student's eligibility for special education programs and services as a student with a learning disability is not in dispute (see 34 C.F.R. § 300.7[c][10]; 8 NYCRR 200.1[zz][6]).  The student is described as a "hard working, sociable young adult" who displays deficits in decoding unfamiliar words, reading comprehension, writing, math computation and reasoning skills as well as delays in auditory processing (Parent Exs. C at pp. 3-4, D at p. 3).  The student is bilingual in English and Cantonese and her parents speak Cantonese only (Tr. pp. 104-05; Parent Ex. E).  The record does not specify when the student passed the Language Assessment Battery (LAB), however, as of her fifth grade (1998-99) school year, she had passed the LAB and was evaluated "monolingually" in English (Parent Ex. L at p. 2). 

           The student has received resource room services since 1996 and at the time of a triennial evaluation of the student, conducted during the 1998-99 school year, she was receiving resource room as well as twice weekly speech and language therapy (Parent Exs. H at p. 2, L).  As part of the student’s triennial evaluation in 1999, the Wechsler Intelligence Scale for Children-III (WISC-III) was administered and yielded a verbal IQ score of 83 (low average), a performance IQ score of 79 (borderline) and a full scale IQ score of 79, which is in the borderline range of cognitive functioning (Parent Ex. L at p. 3).  The student exhibited difficulties with tasks involving general knowledge, expressive vocabulary and nonverbal reasoning (id.).  On the Woodcock Johnson Tests of Achievement-Revised (WJ-R), the student achieved scores in the 17th percentile for reading and 31st percentile for math (Parent Ex. H at p. 4).  The student exhibited a limited sight vocabulary compared to her peers and when attempting to decode unfamiliar words, experienced difficulty with syllabication, proper emphasis and blending of sounds within polysyllabic words (Parent Ex. H at p. 3).  While the student demonstrated the ability to complete addition and subtraction computations at the low third to mid-fifth grade level, she encountered difficulty with applying mathematical concepts to problem solving (id.).  It was reported that the student's bilingual background may have prevented her from absorbing factual knowledge that was presented in the classroom and it was recommended that the student continue to receive resource room and speech-language services for the upcoming school year (Parent Ex. L at p. 3).

            In March 1999, the student was receiving speech therapy twice weekly in a group of five (Parent Ex. K).  She exhibited a moderate-severe auditory processing disorder characterized by difficulty following multi-step oral directions and sequencing oral messages (id.).  The student also had difficulty with grammar concepts and word retrieval skills, which hindered her conversational speech (id.).  Although the student's performance on the Beery Test of Visual Motor Integration fell two and one-half years below age expectant norms, the record does not indicate that the student was recommended to receive services to remedy this difficulty (Parent Ex. H at p. 3; see Parent Exs. C, D).

           The Wechsler Individual Achievement Test (WIAT) was administered to the student in May 2002, when she was completing eighth grade.  Results indicated performance in basic reading at the fourth grade level, reading comprehension at the third grade level, math operations at the seventh grade level and math reasoning at the sixth grade level (Parent Ex. F at p. 2).  The evaluation report stated that the student exhibited an adequate sight vocabulary and was noted to have difficulty with decoding unfamiliar words (id.).  Reading comprehension was noted to be a significant area of weakness and the student exhibited difficulty in processing questions that were asked of her (id.).  The student’s math reasoning ability was characterized as "limited" (id.).  The evaluation report stated that since prior testing of the student in 1999, she had made adequate progress in math and minimal progress in reading skills (Parent Ex. F at p. 3).  Writing, reading and math remediation was recommended (id.).

           In May 2002 the student exhibited moderate expressive-receptive language delays in the areas of auditory processing and high-level language skills (Parent Ex. J).  It was recommended that the student receive speech therapy twice weekly in a group of three (id.).  Less than a year later, in March 2003, the student's speech-language pathologist stated that the student's needs in the areas of reading and language were being met in the regular education classroom and recommended dismissal from speech-language therapy (Parent Ex. I).  A progress report dated March 7, 2003 indicated that the student's performance was "fair" for exams, grades and in-class academic functioning (Parent Ex. E).  At that time, the student's teacher estimated her reading and math ability to be at a fourth grade level (id.). 

           Respondent’s Committee on Special Education (CSE) met on April 4, 2003 and developed an individualized education program (IEP) that offered the student a general education program with an 8:1 Special Education Teacher Support Services (SETSS) period three times per week in the general education classroom and twice per week in a separate location (Parent Ex. D at p. 1). The student also received extended time (1.5), separate location and the use of a calculator as testing accommodations (Parent Ex. D at p. 11).

          By letter dated July 28, 2003, petitioner requested that respondent authorize independent educational, psychological and speech-language evaluations of the student at the State University of New York (SUNY) Optometry Center due to her limited progress in reading during the previous school year and concern that the current placement was not meeting the student’s needs (Parent Ex. N). The letter indicated that the educational evaluation of the student had commenced but was not completed due to insurance constraints (id.).

          The CSE convened on February 27, 2004 for an annual review of the student (Parent Ex. C).  The resultant IEP, which was in effect at the time of this hearing, offered the student a general education program with five periods weekly of 8:1 direct SETSS in a separate location (Parent Ex. C at pp. 1, 7).  The IEP stated that the student exhibited minimal progress in the areas of reading, writing and mathematics (Parent Ex. C at p. 3).  The IEP also noted that the student's delays in auditory processing skills negatively affected all areas of study (id.).  Testing accommodations were continued from the previous year’s IEP (Parent Ex. C at p. 9, D at p. 9). 

          During the 2004-05 school year, the student attended an 11th grade class with approximately 15 to 18 students (Tr. p. 102).  She received SETSS instruction for at least one hour daily (Tr. p. 77).  The student received push-in SETSS in math daily and pull-out SETSS for different subjects between one and five times per day, depending on the nature of student's workload (Tr. p. 80).  The student received after school SETSS assistance as well (Tr. p. 82). 

          By letter dated October 19, 2004 to the CSE chairperson, petitioner, through her attorney, requested independent evaluations of the student (Parent Ex. M).  Petitioner expressed concern about the student's limited progress in reading and believed the evaluations were necessary to ensure the student's receipt of a free appropriate public education (FAPE). 

         An evaluation conducted by Huntington on December 29, 2004 using the California Achievement Test (CAT) revealed that the student performed in the second percentile in vocabulary (grade equivalent: 4.1; very poor), and in the first percentile for reading comprehension (grade equivalent: 3.1; very poor) (Parent Ex. B at p. 2).  The student's writing sample was judged to be "poor," as was her performance on the Slosson Visual Motor Performance Test and Slosson Oral Reading Test (Parent Ex. B at pp. 1, 2).  The student's math abilities were measured by a Huntington-specific inventory of skills, and her performance indicated that she had not mastered some mathematic concepts at the first grade level (Tr. p. 153; Parent Ex. B at pp. 2-3).  By letter dated February 9, 2005, the Managing Director of Huntington stated that the student required 393 hours of instruction, initially receiving 1:1 instruction with the expectation that she would be moved to a 3:1 ratio when she exhibited a level of independence that would allow her to continue to make progress at that ratio (Parent Ex. A). 

         By letter filed on January 19, 2005, petitioner requested an impartial hearing alleging that respondent failed to develop a proper IEP for the student and that the student had not made meaningful progress over the previous few years (Parent Ex. P).  Petitioner requested that respondent pay for tutorial services at Huntington with transportation costs, issue a “Nickerson letter” for the 2004-05 and 2005-06 school years, and pay for independent evaluations of the student.

         The impartial hearing was held on February 16, 2005.  The impartial hearing officer, in a decision dated March 15, 2005, found that respondent’s CSE, which developed the February 27, 2004 IEP, was not legally constituted because a district representative was not designated and therefore respondent failed to sustain its burden of showing that the program subsequently recommended was appropriate (IHO Decision p. 10).  Respondent’s CSE was ordered to conduct a triennial review of the student, including, but not limited to, psychoeducational, speech-language, social history, visual perceptual, audiological and neuropsychological evaluations (IHO Decision p. 12).  The impartial hearing officer also ordered respondent to issue authorizations allowing petitioner to obtain independent psychoeducational, speech-language, visual perceptual, audiological and neuropsychological evaluations at respondent’s expense (IHO Decision p. 12-13).  Respondent’s CSE was ordered to convene no later than two weeks from the date all evaluation reports were received in order to make recommendations utilizing the new evaluations, to determine the amount of skills instruction the student required to make academic progress and to include this in its recommendations (IHO Decision, p. 12).  Petitioner’s requests for tutorial services at Huntington and for a “Nickerson letter” were denied (IHO Decision p. 13).

          On appeal, petitioner requests that the decision of the impartial hearing officer be reversed and asserts that the student’s February 27, 2004 IEP was procedurally and substantively flawed and that the student was denied a FAPE during the 2004-05 school year.  Petitioner requests an award of 393 hours of tutorial services at Huntington at respondent’s expense, payment for a diagnostic testing fee and a registration fee at Huntington, and issuance of a “Nickerson letter.” 

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

           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).

           I concur with the impartial hearing officer’s determination that respondent’s failure to have a district representative at the February 27, 2004 CSE was a violation of 8 NYCRR 200.3(a)(1)(v) (IHO Decision, p. 10). Section 200.3(a)(1)(v) of the Regulations of the Commissioner of Education requires that the CSE include a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general curriculum and the availability of resources of the school district and further provides that the district representative may also be the same individual designated as the special education teacher or the special education provider of the student or the school psychologist (see 34 C.F.R. § 300.344[a][4]).  A district representative was not signed in for the February 27, 2004 CSE meeting (Parent Ex. C at p. 2).  Although a special education teacher was present, the record does not establish that this person possessed the requisite knowledge of the general curriculum and the resources available to the student as required by 34 C.F.R. § 300.344[a][4] and 8 NYCRR 200.3(a)(1)(v) (Tr. pp. 72-73). 

           The impartial hearing officer determined that respondent’s procedural violation denied the student a FAPE but did not address whether the procedural violation impacted the development of an adequate program for the student.  I have reviewed the record and find that the program recommended in the February 27, 2004 IEP was not reasonably calculated to confer educational benefit to the student.  The IEP is substantively inadequate.  For example it states that the student's auditory processing delays appear to negatively affect all areas of study yet does not refer to evaluative data that demonstrates that the student's auditory processing skills were tested (Parent Ex. C at p. 3).  Therefore, the annual goal that "[the student] will improve listening skills by one grade level in one year's time" is inadequate because her baseline grade level is not identified on the IEP (Parent Ex. C at p. 6).

            In addition, when comparing the February 27, 2004 IEP with the April 4, 2003 IEP, the evaluative data contained in the April 4, 2003 IEP offers a range of instructional levels for particular skills documented from testing administered in May 2002 (e.g. decoding: 4th-5th grade) (Parent Ex. D at p. 3).  The February 27, 2004 offers a single grade equivalent, rather than a range, and lists the date of the evaluations as from October and November 2003 (e.g. decoding: 4th grade) (Parent Ex. C at p. 3).  However, at the impartial hearing, respondent’s representative testified, "I believe they are using the results of the same tests. I think that they are just reporting scores from the test that was given in May 2002.  So the 2004 IEP is really repeating the same test that was done.  There was no new educational in 10/1/03.  It's the same test. Now granted that doesn't make for a great IEP, but it also doesn't tell you if [the student] has progressed or not progressed" (Tr. p. 32).  This testimony suggests that respondent reported the same assessment information from the May 2002 triennial inconsistently on the two IEPs, rendering the IEPs inadequate for the purpose of determining the student’s present level of performance and her present level of need, as well as ineffective to identify the appropriate amount of services or to measure the student’s progress.

            Although I concur with the final determination of the impartial hearing officer that respondent failed to sustain its burden of showing that the program recommended in the February 27, 2004 IEP was appropriate, I do so for the additional reasons discussed above.

            Petitioner requests a “Nickerson letter” as equitable relief for the denial of a FAPE.  A "Nickerson letter" is a letter from the Department of Education (DOE) to a parent authorizing the parent to immediately place the child in an appropriate special education program in any state-approved private school, at no cost to the parent (see Jose P. v. Ambach, No. 79 C 270, 3 EHLR 553:298 [E.D.N.Y. January 5, 1982]).  The remedy of a “Nickerson letter” is intended to address the situation in which a child has not been evaluated within 30 days or placed within 60 days of referral to the CSE (id.; see Application of the Bd. of Educ., Appeal No. 03-110; Application of a Child with a Disability, Appeal No. 02-075; Application of a Child with a Disability, Appeal No. 00-092).  The facts before me do not raise the issue of an untimely placement or evaluation relative to the student.  Accordingly, I concur with the impartial hearing officer and find that petitioner is not entitled to the requested relief. 

            Petitioner also requests 393 hours of tutorial services at Huntington as equitable relief to compensate for the asserted denial of a FAPE.  State Review Officers have awarded equitable relief in the form of additional educational services to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional educational services before the student becomes ineligible for instruction by reason of age or graduation (Application of the Bd. of Educ., 04-085; Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030).  In general, the award of additional educational services, for a student who is still eligible for instruction, requires a finding that the student has been denied a FAPE.

            I concur with the impartial hearing officer that there is insufficient current comprehensive evaluative date to determine what services are appropriate to meet the student’s current needs.  I also concur with the impartial hearing officer’s order that the student be referred for further evaluations and that the CSE convene and develop appropriate recommendations based on new evaluative data.  However, I find that the record provides sufficient information for a determination that in the area of skills instruction there is an immediate need and that there is a basis, without further evaluative data, to conclude that services addressing these areas of need are appropriate and should be provided prior to the beginning of the 2005-06 school year.  

            The student's SETSS teacher testified that the student is receiving a significant amount of additional SETSS service that is not on the 2004-05 IEP and that she would benefit from “more services” (Tr. pp. 78-81, 84-86, 88).  The SETSS teacher spends more time with the student in her math class, however, the student's greatest areas of need are in language, reading and writing (Tr. pp. 105-06).  The SETSS teacher characterized the student's needs in reading and writing as "skill" related, but skills classes are not offered to students after the 10th grade, allegedly due to respondent’s “fiscal constraints” (Tr. pp. 106-07).  He testified that although he is keeping the student "afloat" with his services, he opined that she needs two periods a day of phonics, decoding, comprehension and writing assistance in addition to the current program offered on her IEP (Tr. p. 109).  Although the SETSS teacher testified that the student has not made any progress in reading due to the lack of skills classes, the record does not reflect that the student's program has been adequately changed to remedy the problem (Tr. p. 113; Parent Exs. C, D).  Her program in 2003-04 and 2004-05 was general education with five periods weekly of SETSS, and the IEPs for those school years each state that the student has made "minimal progress in all areas of reading" (Parent Exs. C at p. 3, D at p. 3).  As a result of the impartial hearing officer’s order and my decision, I expect that an appropriate program will be in place for this student for the 2005-06 school year.

             I am persuaded by the testimony of the student’s SETSS teacher that the student is in need of two periods a day of phonics, decoding, comprehension and writing assistance (Tr. p. 109) and that respondent should provide these services to the student as soon as possible.  Therefore, I am ordering that respondent provide skills instruction totaling 60 hours in the areas of phonics, decoding, comprehension and writing and that this instruction be provided to the student before the 2005-06 school year begins (see Letter to Kohn, 17 IDELR 522 [OSEP1991]). 

              Finally, the student is 16 years old at this time and entering the 12^th grade.  Although not the subject of this appeal, the transition planning contained in the February 27, 2004 IEP is lacking.  Among the purposes of IDEA is the preparation of students with disabilities for employment and independent living (34 C.F.R. § 300.1[a]). To the extent appropriate for each individual student, an IEP must focus on providing instruction and experiences that enable the student to prepare for later educational experiences and for post-school activities, including formal education, if appropriate, employment and independent living (see Application of a Child with a Disability, Appeal No. 03-078, Application of a Child with a Disability, Appeal No. 02-111, 34 C.F.R. Part 300, Appendix A, Part III Question Nos. 11-13). For students 15 years of age and older, it must include a statement of the student's needs, taking into account the student's preferences and interests as they relate to transition from school to post-school activities including post-secondary education, vocational training, integrated competitive employment, continuing and adult education, adult services, independent living, or community participation (8 NYCRR 200.4[d][2][i][c], 200.1[fff]).

              The student’s transition services on the February 27, 2004 IEP are inadequate and therefore, respondent’s CSE shall develop an appropriate transition plan for the student in her 2005-06 IEP based on its review of the results of the new evaluations. 

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

THE APPEAL IS DISMISSED.

IT IS ORDERED that, unless the parties otherwise agree, respondent shall provide to the student skills instruction totaling 60 hours in the areas of phonics, decoding, comprehension and writing before the beginning of the 2005-06 school year; and

IT IS FURTHER ORDERED that respondent’s CSE shall develop an appropriate transition plan for the student in her 2005-06 IEP based on its review of the results of the new evaluations.