Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Arlington Central School District
Family Advocates, Inc., attorney for petitioners, RosaLee Charpentier, Esq., of counsel
Kuntz, Spagnuolo, Scapoli & Schiro, P.C., attorney for respondent, Jeffrey J. Schiro, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their son's tuition costs at the Kildonan School (Kildonan) for the 2004-05 school year. The Board of Education cross-appeals from the impartial hearing officer's determination that it failed to demonstrate that it had offered to provide an appropriate educational program to the student for that year. The appeal must be sustained in part. The cross-appeal must be dismissed.
At the outset, a procedural matter must be addressed. Respondent asserts that the impartial hearing officer erred by admitting into evidence a tape recording (tapes) and transcript1produced by the mother and purported to be a recording of the June 18, 2004 Committee on Special Education (CSE) meeting (Answer p. 14, ¶ 1). 2
Respondent argues that the tapes and transcript represent inadmissible hearsay (Answer p. 14, ¶ 2) and are not the best evidence of the events that took place at the June 18, 2004 CSE meeting (Answer p. 14, ¶ 3). Rather, respondent contends that the best evidence of the meeting is the testimony of the participants at the meeting (Answer p. 14, ¶ 3). Respondent asserts that the mother lacks the background, education, and/or training to produce an accurate and complete transcript of the events that transpired at the June 18, 2004 CSE meeting (Answer p. 14, ¶ 4). Respondent points to petitioners' failure to provide a sworn oath or verification of the transcript's accuracy and "completeness" (Answer p. 14, ¶ 5). Finally, respondent argues that the impartial hearing officer should have deemed both the tapes and the transcript inadmissible, based on petitioners' failure to establish the tape’s chain of custody (Answer p. 14, ¶ 6).
In the instant case, the mother testified that she had worked as a secretary for 20 years and had experience as a dictation machine transcriber 19 years ago (Tr. pp. 350-51, 354). She stated that when she arrived at the meeting, she placed the tape recorder in the middle of the table, and the participants knew that she was recording the meeting (Tr. pp. 351, 361). The mother used two tapes to record the meeting (id.). The impartial hearing officer ordered the original tapes to be submitted as the "official copy" (Tr. p. 363).
The mother further testified that she transcribed the contents of the tapes to the best of her ability (Tr. pp. 351, 361). An unsworn written statement dated September 21, 2004 under the mother's signature accompanied the transcript, and "certified" that the transcript was an exact transcription of the June 18, 2004 CSE meeting that the mother attended and recorded (Parent Ex. D at p. 1). The impartial hearing officer stated that the tapes would be important to assist him in resolving any ambiguity in the transcript (Tr. p. 362), and admitted both the tapes (Parent Exs. L, M) and the transcript into evidence (Parent Ex. D; Tr. pp. 363-364).
State Review Officers and the Commissioner of Education have held that a CSE must, with certain exceptions, permit a parent to audio tape a CSE meeting regarding the parent's child (Application of a Child with a Handicapping Condition, Appeal No. 90-18; Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep., Decision No. 12425, dated November 21, 1990; see Office of Vocational and Educational Services for Individuals with Disabilities [VESID], guidance on “The Use of Audio- or Video Tape Recording of CSE/CPSE Meetings” [September 2003]; see also 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 21). Such audio recordings have previously been made part of hearing records (see Application of a Child with a Disability, Appeal No. 98-1; Application of a Child with a Disability, Appeal No. 96-58; Application of the Bd. of Educ., Appeal No. 97-60). Formal rules of evidence that are applicable in civil proceedings are generally not strictly applied in impartial hearings (see Application of the Bd. of Educ., Appeal No. 05-007; Application of a Child with a Disability, Appeal No. 99-5; Application of a Child with a Disability, Appeal No. 99-48; see Application of the Bd. of Educ., Appeal No. 91-14). In the instant case, petitioner established a sufficient foundation for admission of the transcript and tapes into evidence, respondent did not allege or show that the evidence was unreliable, and respondent’s objections to the evidence go to the weight accorded the evidence, not its admissibility. I find that the impartial hearing officer did not err by admitting the tapes and transcripts.
At the time of the hearing, the student was 11 years old (Tr. p. 457), in his third year at Kildonan (Tr. p. 494), and attending sixth grade (Tr. p. 457). Kildonan is a nonpublic school that has not been approved by the Commissioner of Education to contract with school districts for the education of students with disabilities. The student's earlier educational history is set forth in a December 12, 2003 decision, Application of the Bd. of Educ., Appeal No. 03-100.3
On February 8, 2005, the last day of the current impartial hearing, during the proceedings, respondent's counsel acknowledged that it was undisputed that Kildonan was the student's pendency placement, and represented that respondent would "take care" of the student's tuition as of that date (Tr. pp. 554-55; see Petition ¶ 33; see also Tr. pp.11-12). The student's eligibility for special education and his current classification as a student with a learning disability (LD) (Tr. p. 39) are not in dispute in this appeal (see 8 NYCRR 200.1[zz]).
Briefly, as discussed in Application of a Child with a Disability, Appeal No. 03-100, the student had been diagnosed with an attention deficit hyperactivity disorder (ADHD), with significant deficits in the areas of attention, activity levels, achievement, cognition, and processing, which adversely impacted upon his learning (IHO Ex. 6; SRO Decision, p. 2). Additional severe deficiencies in receptive language skills interfered with his listening skills and hampered his ability to follow long and complex directions. Inadequate motor skills impaired the student's ability to write.
In February 2002, an evaluating neuropsychologist diagnosed the student with developmental dyslexia with impairments in the phonological and visual spatial routes to word recognition, a two-channel disability which made it extremely difficult for the student to learn how to read and spell (IHO Ex. 6; SRO Decision, p. 2). To address these deficits, the neuropsychologist recommended continued special class placement for reading, writing, and math, a structured and sequential phonics program, an occupational therapy evaluation, classroom accommodations for the student's attention problems, keyboard skills development, testing modifications, and provision of class notes.
During spring 2004, the student received speech-language, occupational therapy, educational, and psychological re-evaluations (Dist. Exs. 5, 13, 14, 15, 16). The speech-language re-evaluation was conducted on March 19, 2004 and March 29, 2004 (Dist. Ex. 16 at p. 1). Receptively, the student was able to listen to four words and identify two words that were related (Dist. Ex. 16 at p. 2). Receptive difficulties included the student's ability to follow directions of increasing length and complexity, and when listening to a short story, to understand the main idea and make inferences. Expressively, the student demonstrated an age appropriate ability to repeat sentences of increasing length. The student demonstrated expressive difficulty using some specific words in sentences that were grammatically and semantically correct (id.).
In addition, the student exhibited difficulty explaining word relationships when the words became more complex and abstract (Dist. Ex. 16 at p. 2). No difficulties were noted in the areas of articulation, voice, fluency, and hearing (id.). With respect to pragmatics, the speech-language evaluator reported that the student used language to initiate conversation, to express his wants and needs, to direct others, and to ask and respond to questions (id.). The student was also noted to use appropriate conversational turn-taking and topic maintenance skills during a discussion with the examiner (id.). At the time, he continued to work on topic maintenance skills (id.). Eye contact was judged to be appropriate (id.). It should be noted that the June 18, 2004 CSE minutes reflect the mother’s report that the student was still distractible, and although showing improvement in participating with peers, continued to have some difficulty (Dist. Ex. 3 at p. 6).
Educational testing, which included administration of the Wechsler Individual Achievement Tests-II (WIAT-II) and Woodcock-Johnson-Tests of Achievement-III (WJ-III), was conducted on April 1, 2004 (Dist. Exs. 13, 14). Administration of the WIAT-II resulted in a borderline mathematics composite standard score of 71 (Dist. Ex. 13 at p. 1). The student received a written language composite score of 65 on the WIAT-II (Dist. Ex. 13 at p. 1). The educational evaluator reported that because of the variability in his performance, the written language composite score of 65 might not be the best summary of his overall skills in writing (id.). Administration of the WJ-III showed low performance in reading and basic reading skills (Dist. Ex. 14 at p. 1).
An occupational therapy evaluation took place on April 8, 2004 at Kildonan (Dist. Ex. 15 at p. 1). The student was observed to have difficulty with a writing assignment and he stated that it often took a while for him to gather his thoughts before writing (id.). The evaluator reported that processing verbal directions given by the teacher appeared to be challenging for the student (id.). Similarly, the student engaged in tabletop tasks with minimal to moderate hesitation, but needed verbal cuing to stay focused on the task at hand (id.). The evaluator noted that when the student would start a written activity, he would start in the middle of the page instead of to the far left (id.). The student also demonstrated difficulty with visual motor skills, and motor planning skills that might interfere with classroom performance (Dist. Ex. 15 at p. 3). He demonstrated difficulty with the writing process with regard to copying information and creating adequate spacing between his written words (id.). Individualized occupational therapy once a week in a non-integrated setting was recommended (id.).
A psychological re-evaluation was conducted on June 8, 2004 (Dist. Ex. 5). Administration of the Wechsler Intelligence Scale for Children-Third Edition (WISC-III) yielded a verbal IQ score of 91, a performance IQ score of 106, and a full scale IQ score of 97, revealing the student's general cognitive ability to be in the average range (Dist. Ex. 5 at pp. 2-3). The student was also observed by the evaluating psychologist in two classrooms at Kildonan, each with approximately four children (Dist. Ex. 5 at p. 1). Behaviorally, the student was described as readily complying with all requests and willing to attempt all tasks, although he occasionally requested that questions be repeated. He was described as having related well to both peers and adults, as well as being able to follow classroom routines.
Respondent's CSE met on June 18, 2004 to conduct the student's re-evaluation and annual review for the 2004-05 school year (Dist. Ex. 3 at p. 1). Summer services were approved for reading and writing skill reinforcement (Dist. Ex. 3 at p. 2). As such, extended year service was recommended through the provision of a special education itinerant teacher for individualized instruction for one-hour sessions, three times per week, in a non-integrated setting at respondent's high school (id.). The individualized education program (IEP) formulated for the remainder of the 2004-05 school year recommended daily 40-minute, non-integrated, special classes, each with a 15:1 student to teacher ratio, in English, reading, math, and study skills (Dist. Ex. 3 at p. 1). Daily 40-minute, integrated science and social studies classes with 15:1 student to teacher ratios for the student's special education program were recommended (Tr. p. 144; Dist. Ex. 3 at p. 1), in addition to non-integrated, speech-language therapy for 40-minute sessions twice a week (Dist. Ex. 3 at p. 1). Small group counseling services were recommended twice a month for 30-minute sessions (Dist. Ex. 3 at p. 1). Individual occupational therapy was recommended once a week for a 40-minute non-integrated session (id.). Testing accommodations included extended time, the reading/explanation of instructions and questions for final, unit, and state exams, and flexible test settings (Dist. Ex. 3 at p. 2). Program modifications and accommodations included the provision of class notes in all content area subjects, refocusing and redirection, and preferential seating (id.). The use of a calculator when not measuring math computation and the waiver of spelling requirements for assignments and tests not assessing spelling were also recommended (id.). Assistive technology recommendations included the provision of books on tape for all academic classes and access to a word processor (id.).
By letter dated August 19, 2004 to respondent's Special Education Office, the mother rejected the 2004-05 IEP and informed respondent that her son would be continuing his placement at Kildonan for the 2004-05 school year (IHO Ex. 5 at p. 1). She stated that at the June 18, 2004 CSE meeting, she had been told that she would receive the 2004-05 IEP in a few weeks, but had not received it as of August 18, 2004. The mother further stated that she had not heard from either of the CSE co-chairpersons regarding changes that may affect her son's IEP.
In this letter, the mother also asserted that Kildonan was the correct placement for her child because: 1) respondent did not and had not met her son's dyslexia needs; 2) respondent did not offer an Orton-Gillingham program for her son, and Kildonan did so throughout her son's daily lessons; 3) in the past, the mother had requested a 1:1 tutor from respondent and had been denied while Kildonan provided a 1:1 tutor for her son for an hour daily through which his study habits improved and he made progress; 4) the student showed academic improvement this year as shown by his June 18, 2004 report card; 5) at Kildonan the student would only be with children who had dyslexia or learning disabilities; and 6) Kildonan's largest class size last year was limited to six students (IHO Ex. 5). The mother concluded by requesting an impartial hearing to seek reimbursement for tuition, associated costs, outside educational evaluation, and transportation costs related to her son's enrollment at Kildonan for the 2004-05 school year "under status quo placement" (IHO Ex. 5 at p. 2).
An impartial hearing convened on September 17, 2004 and concluded on February 8, 2005, after five days of hearings (IHO Decision, p. 1). By decision dated April 11, 2005, the impartial hearing officer found that respondent failed to have a regular education teacher in attendance at the June 18, 2004 CSE meeting, and that, therefore, the CSE which convened on June 18, 2004 to develop the 2004-05 program was not properly constituted (IHO Decision, pp. 5-6). The impartial hearing officer, assuming arguendo that his interpretation of the need for a regular education teacher was drawn too narrowly, proceeded to analyze the student's IEP and found it to be adequate (IHO Decision, pp. 6-7).
The impartial hearing officer further found petitioners had not met their burden to show that the Kildonan placement was appropriate for the student (IHO Decision, p. 8). He acknowledged some objective evidence of progress demonstrated by ungraded reports from Kildonan, and anecdotal testimony regarding social success (IHO Decision, p. 8). However, he found the compelling support for his conclusion based on the psychologist’s statement that the parents had reported that they were concerned that their son had become more discouraged and withdrawn and continued to struggle academically (Parent Ex. C at p.1; IHO Decision, pp. 8-9). The impartial hearing officer also cited to the same report as concluding, "all academic skills are four to five years delayed, despite intellectual capacity in the average range" (IHO Decision, p. 8). In addition, he determined that the benefit the student received from Kildonan's programmed instruction was marginal (IHO Decision, p. 9), citing to the Kildonan academic Dean's (Dean) testimony stating that the student made "slow progress" and was in the bottom third of his class (id.). He also referenced the dean's characterization of the student's work as "preventing backsliding" and his testimony that while math had been an area of slow growth, there had been no growth in writing, based on raw data (id.). The impartial hearing officer noted the student's failure to receive occupational and speech-language services at Kildonan, and Kildonan's lack of counseling services (id.). He did not determine whether the equities would have supported petitioners' claim for tuition reimbursement. The impartial hearing officer concluded by ordering respondent to reconvene a CSE meeting within two weeks, to consider the entire record, including the psychologist's report, and the possible need for further testing (id.).
On appeal, petitioners assert that there were numerous procedural violations relating to the 2004-05 IEP as developed at the June 18, 2004 CSE meeting (Pet. ¶ 23). They assert there was no general education teacher present for the vast majority and most important discussions of the CSE meeting on June 18, 2004 (id.). Petitioners further assert that no parent member (Pet. ¶ 24), speech/language therapist (Pet. ¶ 25), occupational therapist (Pet. ¶ 25), or Kildonan representative (Pet. ¶ 27) attended the CSE meeting. In addition, petitioners allege that without supportive evaluations, respondent's CSE recommended an IEP which was less intensive than that which had been found to be insufficient for the student previously by the impartial hearing officer and State Review Officer (Pet. ¶ 26). Petitioners next contend that respondent failed to provide petitioners notice of the IEP, as recommended by the CSE, within a reasonable period of time (Pet. ¶ 28). Petitioners allege that the 2004-05 IEP was not substantively appropriate for the student in light of his failure to benefit and make adequate progress from a substantially similar program in the past (Pet. ¶¶ 29, 30). Finally, petitioners assert that respondent is offering the student special instruction only through a large group-reading program offered once daily and, as demonstrated by class profiles, is proposing placement with children that have significantly different needs and abilities whereas Kildonan provided special instruction across the curriculum (Pet. ¶ 31).
Petitioners request that the impartial hearing officer's decision denying an award of tuition reimbursement be annulled and seek declarations that: 1) the 2004-05 IEP was not developed by a multidisciplinary team defined by the state regulation and is therefore a nullity; 2) the 2004-05 IEP failed to offer the student an opportunity to receive educational benefits and denied him a free appropriate public education (FAPE); 3) the student's placement at Kildonan was proper and appropriate for the 2004-05 school year; 4) the parents worked cooperatively with the district and provided requisite notice of their dissatisfaction, and intent to unilaterally place their son at Kildonan at public expense; and 5) to the extent any tuition monies are outstanding for the 2004-05 school year, respondent immediately reimburse the parents (Pet. p. 15).
In its answer and cross-appeal, respondent asserts that the impartial hearing officer properly concluded that petitioners are not entitled to tuition reimbursement for their son's unilateral placement at Kildonan for the 2004-05 school year (Answer p. 10, ¶ 1). Respondent claims that the June 18, 2004 CSE was properly constituted (Answer p. 11, ¶ 5). Respondent argues that the CSE's recommended 2004-05 program and placement offered the student a FAPE in the least restrictive environment (LRE), based on sufficient evaluative information (Answer p. 11, ¶¶ 2, 3). Respondent contends that its proposed special education program for the 2004-05 school year would have suitably grouped the student with other students with disabilities possessing similar educational needs and abilities (Answer p. 11, ¶ 4), as opposed to Kildonan's inappropriate and overly restrictive placement, given the student's specific educational needs and abilities (Answer p. 11, ¶ 6). Respondent claims that Kildonan failed to provide the student with specialized instruction during the 2004-05 school year to address his unique learning needs (Answer p. 12, ¶ 7). Respondent argues that equities balance against reimbursement of tuition for petitioners' unilateral placement of their son at Kildonan for the 2004-05 school year (Answer p. 12, ¶ 8).
Respondent requests an order affirming the impartial hearing officer's dismissal of petitioners' tuition reimbursement claim, and reversing the impartial hearing officer's finding that the IEP formulated by respondent for the student's 2004-05 school year was procedurally inappropriate (Answer p. 15).
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][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[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 ). 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 ). 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 ; 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 ). 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][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]).
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 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]; see also 8 NYCRR 200.4[d][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).
In addition, the IDEA and its implementing regulations require that the CSE include "at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment)" (20 U.S.C. § 1414[d][B][ii]; see 34 C.F.R. § 300.344[a]; 8 NYCRR 200.3[a][ii]). The regular education teacher member "shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate behavioral interventions and strategies and the determination of supplementary aids and services, program modifications, and support for school personnel" (20 U.S.C. § 1414[d][C]; see 34 C.F.R. § 300.346[d]; 8 NYCRR 200.3[d]). The regular education teacher must also "participate in discussions and decisions about how to modify the general curriculum in the regular classroom to ensure the child's involvement and progress in the general curriculum and participation in the regular education environment" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 24), and participate in any review and revision of the IEP (20 U.S.C. § 1414[d][B]; 34 C.F.R. § 300.346[d]; 8 NYCRR 200.3[d]). In its official interpretation of the regulations, the U.S. Department of Education explains that the regular education teacher member "should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 26)
The U.S. Department of Education has explained that the purpose behind the regular education teacher requirement is for that teacher to serve a critical role in providing input on modifications and supplementary aids and services that would allow the child to remain in the regular education environment to the maximum extent appropriate (Assistance to States for the Education of Children With Disabilities and the Early Intervention Program for Infants and Toddlers With Disabilities, 64 Fed Reg. 12591 [March 12, 1999]). The State Review Officer has found that although a board of education cannot always be expected to know who the student's regular education teacher will be prior to the CSE meeting, it should nevertheless have sufficient information about the student to designate a regular education teacher who is not only appropriately certified to teach the student, but who is also teaching in the subject matter or grade level in one of the programs which might be appropriate for the student (Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-100; Application of a Child with a Disability, Appeal No. 02-080; Application of the Bd. of Educ., Appeal No. 02-056; Application of a Child with a Disability, Appeal No. 00-060).
I will first address petitioners' contention that the June 18, 2004 CSE was improperly composed due to respondent's failure to have a general education teacher present for the "vast majority and . . . most important discussions . . ." of the CSE meeting on June 18, 2004 (Pet. ¶ 23). A review of the record reveals that the June 18, 2004 CSE was composed of two CSE co-chairpersons, a psychologist, a general education math teacher (math teacher), the student's proposed special education teacher for sixth grade, the grandmother, and the parent (Tr. pp. 86-87; Dist. Ex. 3 at p. 5).
Testimony from the special education teacher (Tr. pp. 188-89) indicated that the math teacher presented a synopsis of respondent's math programs at the CSE meeting and did not attend the entire meeting (Tr. pp. 232-33, 359, 462). The special education teacher left the CSE meeting to cover the math teacher's class while the math teacher participated in the meeting (Tr. pp. 359, 477). After her presentation, the math teacher returned to her class (Tr. pp. 359, 462). The special education teacher returned to the CSE meeting once the math teacher resumed teaching (Tr. p. 359). After listening to the tape of the CSE meeting, the mother estimated the period of the math teacher's participation in the meeting to be nine minutes (Tr. pp. 462, 472). The CSE meeting lasted approximately two hours (Tr. p. 359; Parent Exs. D at p. 2, L, M). The mother testified that she had expected the math teacher to have returned to the meeting because they were at the CSE meeting after school ended and her classes were done for the day (Tr. p. 472).
The mother further testified that there was a lot of confusion, chaos, and commotion at the meeting, with people going through the conference room (Tr. pp. 462, 476). The public announcement system was reportedly used by the principal many times, (class) bells rung, students walked through the corridors, and teachers walked into the meeting room to access another room (Tr. p. 477). The mother described one teacher as "screaming" as she was walking through the meeting room, not realizing that there was a meeting going on (id.). She also testified that the meeting seemed to be "stop and go, we were all talking, losing train of thought," (Tr. p. 477) and concluded that the CSE meeting "should be more of a meeting . . . and everybody [should] stay there" (Tr. p. 478). The mother stated that after she listened to the tape again and read the transcript, she heard more than she may have heard or remembered from the meeting itself (Tr. p. 476).
The mother testified that she had wanted to ask the math teacher what type of sixth grade math the student would be learning, given that the math teacher had described the sixth grade math program as incorporating integers, decimals, and division, although the student was still working on addition and subtraction, time, and money concepts (Tr. pp. 472-73). She stated that she did not know what classes the special education teacher that attended the CSE meeting (Tr. pp. 188-89) would have been teaching and whether she would have been able to answer the math questions (Tr. p. 473). Other areas of confusion for the mother reportedly included teaching methodology (Tr. p. 480), identification of the classes that would be integrated (Tr. p. 463), the way in which the integrated classes in science and social studies would have worked (Tr. p. 467), whether the student would have used a sixth grade level text book in the integrated classes (Tr. p. 467), questions about the meaning of the 15:1 student to teacher ratio (Tr. p. 467), whether the student would receive computer or home and career services (Tr. pp. 462-63), when the student would be pulled out of class, and the number of students that would be in a class (Tr. p. 463). The mother testified that she did not understand what was being proposed at the meeting (Tr. p. 463) and that she was told to contact the guidance office to find out what the student's schedule would be and if he would be receiving computer or home and careers class (Tr. pp. 463-64).
With respect to the first criterion for an award of tuition reimbursement, respondent bears the burden of demonstrating that it offered the student an appropriate program. I concur with the impartial hearing officer’s determination that the CSE was not properly constituted (IHO Decision, p. 6). Respondent did not demonstrate that the June 18, 2004 CSE included a regular education teacher "who is, or who may be responsible for implementing a portion of the IEP", so that the teacher can participate in discussions about how best to teach the child" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 26). The general education teacher position on the CSE was represented by a sixth grade general education math teacher who had no familiarity with the student (Tr. p. 87). Because the student was recommended for a special class in math in a non-integrated setting (Dist. Ex. 3 at p. 1), the math teacher would not have been one of the student's teachers, had he attended public school.
Had either of the regular education teachers from the student's proposed science or social studies integrated classes participated in the CSE meeting, respondent would have been able to demonstrate that the CSE included a regular education teacher who was, or who may have been responsible for implementing a portion of the IEP. As differentiated from the math teacher, either the science or social studies regular education teacher would have been able to participate in discussions and decisions about how to modify the general curriculum in the regular classroom to ensure this child's involvement and progress in the general curriculum, and participation in the regular education environment (see 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 24).
Education Law §4402(1)(b)(1)(b) permits certain members of the CSE to serve in two capacities, but the statute does not authorize a special education administrator or a student's special education teacher to serve also as the student's regular education teacher member of the CSE (see Application of a Child with a Disability, Appeal No. 04-088; Application of a Child with a Disability, Appeal No. 01-083). A special education teacher from the science or social studies integrated class programs was not represented on the June 18, 2004 CSE (Tr. pp. 140-42, 178; Dist. Ex. 3 at p. 5). Rather, the special education teacher who participated in the CSE meeting was responsible for the multisensory reading program (Tr. p. 190). Although, along with the CSE co-chairperson, the special education reading teacher offered limited and general discussion regarding the science and social studies integrated class approach (Parent Ex. D at pp. 15-16), there was no one available on the CSE to participate in discussions and decisions regarding the modification of the general curriculum in the regular classroom to ensure the child's involvement and progress in the general curriculum, and participation in the regular education environment (see 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 24) (Dist. Ex, 3 at p. 5; Parent Ex. D at pp. 15-16).
Next, I look to the extent the regular education teacher participated in the CSE meeting. Respondent is correct in asserting that commentary to the applicable federal regulations states that while a regular education teacher must be member of the IEP team if the child is, or may be, participating in the regular education environment, the teacher need not (depending upon the child's needs and purpose of the specific IEP team meeting) be required to participate in all decisions made as a part of the meeting or to be present throughout the entire meeting or attend every meeting (Answer p. 12, ¶ 4). The extent to which it would be appropriate for the regular education teacher member of the IEP team to participate in IEP meetings must be decided on a case-by-case basis (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 24).
Assuming arguendo that the math teacher had been an appropriate regular education teacher, I am not persuaded that her presence was no longer needed after her presentation at the CSE. Respondent has offered no evidence supporting its assertion that the regular education math teacher participated in the development, review and revision of the student's IEP, including assisting in: 1) determining appropriate positive behavioral interventions and strategies for the student; and 2) determining supplementary aids and services, program modifications and supports for school personnel that would be provided for the student (Answer p. 13, ¶ 8). Further, the transcript of the CSE meeting fails to support respondent's contention regarding the substance of the math teacher's participation (Parent Ex. D at pp. 2-8).
The math teacher provided a cursory and very general review of respondent's math programs. By spending so little time at the CSE meeting and leaving the meeting prior to its conclusion, the math teacher was not able to participate in the development of the student's IEP, including the determination of appropriate behavioral interventions and strategies and the determination of supplementary aids and services, program modifications, and support for school personnel. For example, in response to the student's receptive language difficulties (Dist. Exs. 13, 16 at p. 2), a regular education teacher on the CSE team would have been aware of the extent that verbal instruction is offered and how best to make the curriculum accessible (see Arlington, 2002 WL 31521158 at *9; Application of a Child with a Disability, Appeal No. 04-088).
Under the circumstances, I find that the absence of the regular education teacher from the June 18, 2004 CSE meeting impeded the development of an appropriate IEP, denied educational benefit to the student and, therefore, denied the student a FAPE for the 2004-05 school year (Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002]; Application of the Bd. of Educ., Appeal No.02-056; Application of a Child with a Disability, Appeal No. 01-105; Application of a Child with a Disability, Appeal No. 01-083). It also seriously impeded petitioners' participation in the creation or formulation of the IEP because the mother had no appropriate regular education teacher of the student present at the CSE meeting with whom she could discuss programs, services, and supports for the student's participation in regular education. Consequently, I find that respondent has failed to demonstrate the appropriateness of the program its CSE recommended for the student for the 2004-05 school year.
Having determined that respondent has not met its burden of proving that it had offered to provide a FAPE to the student during the 2004-05 school year, I must now consider whether petitioners have met their burden of proving that the services provided to the student by Kildonan during that school year were appropriate (Burlington, 471 U.S. 359; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-080). In order to meet that burden, the parents must show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., that the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 04-108; Application of a Child with a Disability, Appeal No. 01-010). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).
The student entered Kildonan in his fourth grade year and at the time of the impartial hearing was in his sixth grade year (Tr. p. 494). Kildonan provides a private, co-educational boarding and day school program, exclusively for students with dyslexia, for grades 2 through 12 (Tr. p. 491). Kildonan's academic dean (dean) testified that the school's mission is to remediate basic language skills through the use of one-on-one daily language training tutorials using the Orton-Gillingham (O-G) method, to provide stimulating and enriching academic materials, and to foster self-confidence (Tr. pp. 491-92).
The dean testified that the student is one of Kildonan's most severely disabled students, explaining that in addition to the student's language skills, the facility with which he learns language is still extremely difficult for him (Tr. p. 494-95). He further testified that the student had social and emotional issues as well (Tr. p. 495).
The student's academic progress at Kildonan was reported to petitioners through interim reports. A Kildonan progress report in math dated February 24, 2004 and available to the CSE at the time of the annual review anecdotally indicated that the student gained automaticity with multiplication facts through the five's tables, was beginning to learn how to extend basic knowledge, such as using his ability to add ten to a number in order to add other multiples of ten to the same number, and was improving his ability to read very large numbers (Dist. Ex. 20).
The student was seen for a private neuropsychological evaluation during August 2004 (Parent Ex. C at p. 1, F), after the student's annual review was held. The neuropsychologist determined the student's general intellectual ability to be in the average range, with evidence of significant cognitive processing deficits in the areas of directed and sustained attention, particularly in mental tracking, as well as a "strikingly severe" deficit in visuospatial perception (Parent Ex. C at p. 16). The areas of visual memory and visuospatial problem solving were considered strengths (id.). Significant anxiety was also reported (id.). The extreme inconsistency in the student's cognitive performance across testing sessions [three sets of WISC-III administrations in three years and one current Wechsler Intelligence Scale for Children-Fourth Edition (WISC-IV) administration] was attributed to the student's motivation issue, which, along with his visual perceptual deficit, was characterized as his major obstacle to learning (Parent Ex. C at pp. 9-10, 16). All academic skills were reported to be four to five years delayed, despite intellectual capacity in the average range (Parent Ex. C at p. 16).
The neuropsychologist concluded that the student's history and findings were consistent with Asperger's syndrome, anxiety, and a severe visual perceptual deficit (Parent Ex. C at p. 16). She recommended one-on-one instruction with highly engaging materials, and an intensely structured feedback and reward system (Parent Ex. C at p. 17). The incorporation of computers into his educational program and the availability of support and guidance with behavioral strategies to be used at home were also recommended (id.).
The dean testified that Kildonan provided a very nurturing community with a very small group of students (Tr. pp. 490-97). Commensurate with the recommendations of a neuropsychological evaluation conducted in February 2002, (IHO Ex. 6 at p. 3; Dist. Ex. 3 at p. 6; Parent Ex. F), as well as the results of the more current triennial re-evaluations (Dist. Exs. 5, 13, 14, 15, 16), Kildonan provided one-to-one language training (Dist. Ex. 21; Tr. p. 491) that corresponded to the student's identified need for a structured, multisensory, phonological reading approach to address his dyslexia (Dist. Ex. 3 at pp. 1, 6). Phonics is one of the main focuses for the language-training tutorial for the students (Tr. p. 537). The student used computers in the language training session (Tr. p. 516). In science, and social studies, the student used computers for information searches and for inspiration to facilitate the mapping of thoughts and ideas for a project or presentation (id.).
The dean explained that no occupational therapy is formally provided outside the language training tutorial because many Orton-Gillingham trained teachers have been trained in how to teach handwriting in terms of posture, grip, et cetera, and Kildonan has not had a student who has needed service outside of what it was able to provide with its handwriting component (Tr. pp. 535-36). In response to the August 2004 neuropsychological evaluation, Kildonan implemented certain aspects of behavior modification by helping to provide the student with external motivators to keep him on task, and to engage in activities that he would not necessarily have been interested in approaching (Tr. pp. 518-19). He has been given concrete rewards for accomplishing and finishing tasks, which has helped significantly (Tr. pp. 519-20). Based on a review of the record, I find that at the time petitioners considered continuing the student's education at Kildonan, the program was appropriately designed and implemented so as to convey a meaningful benefit for the student (see C.B. v. NYC Dep't of Educ., 2005 WL 1388964, at *18, *21 [E.D.N.Y. June 10, 2005]). I further find that petitioners demonstrated that Kildonan offered an educational program that met their son's special education needs (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 94-29).
Because the 2004-05 school year ended prior to the conclusion of the appeal, information was available regarding the student's growth during his sixth grade year at Kildonan. The dean testified that, as anticipated, the student had not made "fast and furious growth" over his three years at Kildonan but he had made slow progress, which was not atypical of a student with similar levels of difficulty (Tr. p. 495). In fact, the dean testified that the student's rate of progress was typical of about a third of Kildonan's students (Tr. p. 530). The dean summarized his position by stating that Kildonan students are rarely going to be on par with their peers because they are always going to have some degree of difficulty around language (Tr. p. 543). Nevertheless, the dean stated that multi-sensory instruction has been beneficial for the student (Tr. p. 499). He testified that math had been an area of slow growth in which the student still experiences difficulty (Tr. p. 512). The student's handwriting is legible when he is reminded to take his time, but because of the student's limited patience, he is focusing a little more on keyboarding (Tr. pp. 536-37).
In contrast, some of the student's most conspicuous areas of growth have been in the social-emotional areas (Tr. p. 496). Some of the social-emotional growth has been attributed to the student's maturation; some has been attributable to troubleshooting sessions with the co-heads of the program (Tr. pp. 508-09). The need for these sessions has decreased from the beginning of 2002 to the present (Tr. p. 509). The dean testified that the student has learned how to interact much more appropriately with his peers (Tr. p. 496) and has made behavioral progress in terms of recognizing the consequences of his behavior (Tr. p. 498). In addition, the dean indicated that the student is starting to understand cause and effect relationships in terms of social (interactions) and this, in turn, is meaningful for the potential it may have in academic areas (Tr. p. 499). The dean assessed the student as having had a good year overall (Tr. p. 501). He explained that the work the student had been doing really helped him to prevent backsliding, and helped him lay a foundation to help him with motivation (id.).
The final criterion for an award of tuition reimbursement is that the parents' claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; Mrs. C v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2nd. Cir. 2000]); see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp.2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff’d, 471 U.S. 359 ). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; Weast v. Schaffer, 240 F. Supp. 2d 396, 406-409 [D. Md. 2002]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). The record reveals that the mother attended and participated in the CSE meeting and cooperated with respondent's CSE in the student's evaluations and in preparing the student's IEP. In the absence of any other equitable factor, I find that the petitioners' claim for tuition reimbursement is supported by equitable considerations.
Respondent's counsel acknowledged Kildonan as the student's pendency placement, and represented that respondent would "take care" of the student's tuition as of the last date of the hearing (February 8, 2005) (Tr. pp. 554-55; see Petition ¶ 33). Respondent is directed to reimburse petitioners' tuition costs for the 2004-05 school year.
I have considered petitioners' and respondent’s remaining contentions and I find them to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
THE CROSS-APPEAL IS DISMISSED.
IT IS ORDERED that the impartial hearing officer's decision is hereby annulled to the extent that it found that petitioners failed to demonstrate that the student's placement at Kildonan met their son's needs and;
IT IS FURTHER ORDERED that respondent shall reimburse petitioners for the cost of their son's tuition at the Kildonan during the 2004-05 school year, upon petitioners' presentation to respondent of proof of such payment.
1 I note that respondent's allegations contain citation errors. Paragraph one (Answer p. 14) incorrectly refers to Parent Exhibit O as the tape and transcript of the June 18, 2004 meeting. Paragraph six also incorrectly refers to Parent Ex. D as containing both the tapes and transcript of the June 18, 2004 sub- CSE meeting (id.). This creates confusion as to the substance of Parent Exhibit D, as used in paragraphs two, three, and five (id.). As a point of clarification, Parent Exhibit O incorporates the mother's testimony from the impartial hearing held for the 2002-03 school year (Tr. p. 556) and does not include the tape and transcript resulting from the June 18, 2004 meeting. Parent Exhibits L and M represent the first and second tapes of the June 18, 2004 meeting, respectively (Tr. pp. 363-64, 447). Parent Exhibit D includes the transcript of the June 18, 2004 meeting tapes, unaccompanied by tapes (id.). However, based on the existence of only one set of tapes of the June 18, 2004 CSE meeting in the hearing record, I will review respondent's allegations regarding the tapes and transcript as though Parent Exhibits O and D represent both tapes and transcript.
2 Because I do not reach any issues dependent upon the characterization of the June 18, 2004 meeting as a sub-CSE meeting, for the sake of clarity, the June 18, 2004 meeting will be characterized as a CSE meeting throughout this decision.
3 In Application of the Bd. of Educ., Appeal No. 03-100, the district's appeal from an impartial hearing officer's decision awarding parents reimbursement for their son's tuition at Kildonan for the 2002-03 school year was dismissed, based on findings that: 1) the individualized education program (IEP) was deficient because it did not adequately describe the child's needs regarding deficits in processing, memory, and phonemic awareness, did not provide appropriate programming, lacked appropriate goals and objectives, and was not amended to include occupational therapy services recommended by the CSE; 2) measurable strides in phonemic awareness and decoding, writing skills, math facts, fine motor skills and behavior demonstrated that the child's academic needs were met at Kildonan; and 3) the parents' claim for tuition reimbursement was supported by equitable considerations (IHO Ex. 6).