05-063

       Petitioner, the Board of Education of the Carmel Central School District, appeals from the decision of an impartial hearing officer which found that it failed to offer an appropriate educational program to respondents' daughter and ordered it to reimburse respondents for their daughter’s tuition costs at the Kildonan School (Kildonan) for the 2004-05 school year.  The appeal must be dismissed.

        Respondents' daughter was 12 years old and attending seventh grade at Kildonan when the impartial hearing began on January 18, 2005 (Tr. pp. 387, 445).  The Commissioner of Education has not approved Kildonan as a school with which school districts may contract to instruct students with disabilities.  The student began attending Kildonan at the beginning of the 2003-04 school year and had attended Crossroads School (Crossroads) for the 2002-03 school year (Tr. pp. 412-13, 418-19).  The student attended petitioner’s schools through the 2001-02 school year (fourth grade) (Parent Exs. 27, 28).  The student's eligibility for special education as a student with a learning disability (LD), as determined during the 1998-99 school year, is not in dispute (Tr. pp. 34, 77, 458-59; see 8 NYCRR 200.1[zz][6]).

        The student was initially classified as LD in December 1998 when she was attending first grade at petitioner’s Kent Primary School (Tr. pp. 458-59).  At the time, the student’s overall intellectual functioning fell within the average range (Dist. Ex. 19 at pp. 2, 3), however, she demonstrated significant deficits in reading, math, and spelling, as well as fine motor delays (Dist. Ex.  19 at p. 5). In addition, the student failed both hearing and vision screenings (Dist. Exs. 21, 22) and evaluators noted that she had difficulty understanding information presented orally (Dist. Ex. 18 at p. 1, Dist. Ex. 19 at p. 2). The student received resource room and consultant teacher services to assist her in her first grade classroom (Tr. pp. 77, 393, 458-59; Dist. Ex. 62). For second through fourth grades the student was placed in integrated classrooms where she received varying levels of consultant teacher services (Tr. pp. 78-80; Parent Exs. 27, 28). 

         In February 2002, the student was administered intelligence testing as part of a psychological reevaluation (Dist. Ex. 14).  The student’s scores on the Wechsler Intelligence Scale for Children-III (WISC-III) revealed that her general cognitive ability was within the average range of intellectual functioning (verbal IQ score 100, performance IQ score 98, and full scale IQ score 99) (Dist. Ex. 14 at p. 1).  Although the student’s processing speed index score was in the average range (SS 93) (Dist. Ex. 14 at p. 3), the psychologist testified that the student’s response to test items was delayed and that as compared to the results of earlier testing the student’s processing speed was slowing down (Tr. pp. 173-74).  For fifth grade (2002-03) the Committee on Special Education (CSE) recommended that the student’s reading, Mathematics, and writing instruction be provided in a special class (Tr. pp. 179, 413; Dist. Ex. 63 at pp. 1, 8).  Consultant teacher services were also recommended for social studies and science (Tr. pp. 180, 413; Dist. Ex. 63 at pp. 1, 8) and weekly counseling services were added to the student’s individualized education program (IEP) (Dist. Ex. 63 at p.1).

         The student’s mother reported that she was becoming concerned about her daughter’s poor self-esteem and lack of desire to succeed (Tr. pp. 413-14).  In September 2002, respondents decided to unilaterally enroll the student in Crossroads, a Montessori school, for fifth grade (Tr. p. 413).  In April 2003, respondents referred the student back to petitioner’s CSE for evaluation (Parent Ex. 16; Tr. pp. 415-16). In May 2003, petitioner administered the Woodcock-Johnson III Tests of Cognitive Abilities (WJ-III COG) and Woodcock-Johnson III Tests of Achievement (WJ-III ACH) to the student (Dist. Ex. 12; Tr. p. 1226).  Compared to same-age peers, the student’s performance was average in Mathematics and written expression; and low average in broad reading, basic reading skills, math calculation skills, and written language skills (Dist. Ex. 12 at p. 3).  There were no discrepancies found among the student’s cognitive and achievement abilities (Tr. p. 1229; Dist. Ex. 12 at p. 3).  Based on the results of testing, petitioner’s evaluator opined that the student would probably find age-level tasks requiring computational skills and automaticity with basic math facts difficult (Dist. Ex. 12 at p. 2).  In addition, due to delays in processing speed and on tasks requiring visual perceptual speed, the evaluator suggested that the student would find age-level tasks requiring “cognitive speediness” very difficult (Dist. Ex. 12 at p. 2).

         In September 2003, respondents unilaterally enrolled the student in Kildonan for the sixth grade (Tr. p. 419).  At Kildonan the student studied phonetic concepts and sentence types, and learned to write basic paragraphs (Dist. Ex. 10 at p. 1, Dist. Ex. 68).  In math, the student continued to have difficulty with multiplication facts (Dist. Ex. 10 at p. 6). On April 28, 2004, when the CSE met for the student’s annual review, respondents expressed concern that updated testing was needed, and the CSE agreed to update the testing and reconvene (Dist. Ex, 5, Dist. Ex. 65 at pp. 3-4).  Although the CSE reconvened on May 26, 2004, no updated educational or cognitive testing had been performed (Dist. Ex. 4 at p. 4).  The academic dean from Kildonan participated in this meeting by phone and gave an overview of the student’s program and progress (id.). His comments were summarized in the draft IEP generated from this meeting, which reflected that the student was progressing in decoding, comprehension, vocabulary, and fluency but needed continued intensive work in reading (id.).  A discussion regarding touch-typing and computers led the CSE to recommend an assistive technology evaluation (id.; Parent Ex. 24 at pp. 34-40).  The meeting was tabled with the understanding that another meeting would be scheduled to review the results of the recommended evaluations (Dist. Ex. 4 at p. 4).

         In May 2004, Kildonan assessed the student’s reading and writing abilities using a variety of standardized tests (Parent Ex. 8 at p. 2). According to her language tutor, the student’s scores on the Gray Oral Reading Test, Fourth Edition (GORT-4) showed significant improvement in the student’s reading rate and accuracy (Parent Ex. 11 at p. 1, Parent Ex. 8).  The tutor also noted a marked improvement in the student’s spelling (Parent Ex. 11 at p. 1, Parent Ex. 8).  As measured by the Gates-MacGinitie Reading Test the student’s vocabulary had improved, however, the tutor reported that the student’s reading comprehension score did not reflect the gains that she had made (Parent Ex. 11 at p. 1, Parent Ex. 8).  The student’s math teacher reported that the student had mastered most of her multiplication facts but that she had not reached a level of automaticity in relation to long division processes  (Parent Ex. 11 at p. 2).

         On June 16, 2004 the district conducted a cognitive and educational evaluation of the student using the WJ-III COG and WJ-III ACH (Tr. p. 243; Dist. Ex. 8).  As measured by the WJ-III COG the student’s overall processing speed score was in the low average range (Dist. Ex. 8 at p. 1) and the student’s performance was described as “very limited” on tasks requiring visual perceptual speed (SS 74) (Tr. pp. 264-65, 294; Dist. Ex. 8 at p. 1).  On the WJ-III ACH, the student’s performance was average in reading comprehension and written expression, and low average in broad reading, basic reading skills and basic writing skills (Dist. Ex. 8 at p. 2).  Significant weaknesses were noted in spelling (Tr. p. 271).  The student’s math skills were not reassessed (Tr. pp. 274, 317; Dist. Ex. 8 at p. 2).  Also in June 2004, an assistive technology evaluation was completed by the school district, and both assistive technology devices and services were recommended for the student (Dist. Ex. 7).

         On August 17, 2004 the CSE met, reviewed and discussed the results of petitioner’s educational and cognitive and assistive technology evaluations  (Dist. Ex. 3 at p. 4).  For the 2004-05 school year (seventh grade) the CSE recommended that the student be placed in a special class part-time for English, math and reading and attend general education classes with resource room support for social studies and science (id.). Recommended program modifications included refocusing and redirection, preferential seating, copy of class notes, extended time for in class assignments and books on tape (Dist. Ex. 3 at p. 2).  Assistive technology devices and services included access to a word processor, books on tape, Dragon Naturally Speaking and an unspecified assistive technology consultation (id.). The student was afforded the following testing modifications: extended time (1.5), directions read/explained, clarification of test questions, special location, and spelling requirements waived (Dist. Ex. 3 at pp. 1-2).  The proposed IEP contained goals and objectives related to study skills, reading, writing, Mathematics and social/emotional/behavioral needs (Dist. Ex. 3 at pp. 4-6). 

        Respondents rejected the proposed 2004-05 placement by letter dated August 19, 2004, which was received by petitioner on August 20, 2004 (Parent Ex. 30).  Respondents stated their belief that the student would not succeed in the Carmel school system due to her slow processing speed and her problems with reading (id.).  They opined that their daughter required one-to-one instruction for language arts and also the multisensory nature of the Orton-Gillingham approach, used at Kildonan, due to their assertion that she had dyslexia, amblyopia, and had one eye that was “almost completely unusable” (id.).  Respondents informed the district that they would be sending the student to Kildonan and requested reimbursement for tuition and related costs (id.).  Respondents signed the Kildonan contract on August 20, 2004 (IHO Ex. 6).

        In response to respondents’ letter, petitioner attempted to schedule a CSE meeting for August 30, 2004 but respondents were unable to attend (Dist. Ex. 51; Parent Ex. 29).  The CSE reconvened with respondents on September 9, 2004 and modified the IEP by replacing the recommendation for mainstream social studies and science with resource room support with a recommendation for special class part-time for those subjects (Dist. Ex. 2).  In addition the student was recommended for weekly group counseling sessions to support her transition (Dist. Ex. 2 at p. 4). Respondents kept the student at Kildonan (Tr. p. 445).  By letter dated December 7, 2004, respondents requested an impartial hearing (Dist. Ex. 25). 

            The impartial hearing commenced on January 18, 2005 and concluded on April 15, 2005 after ten days of testimony.  On May 19, 2005, the impartial hearing officer rendered his decision finding that the district had failed to offer a free appropriate public education (FAPE) to the student for the 2004-05 school year, that respondents’ unilateral placement was proper, and that equitable considerations supported granting tuition reimbursement to respondents for the 2004-05 school year.  Specifically, he held as follows:  1) the CSE composition for the August 17, 2004 CSE meeting was improper due to the lack of a proper special education teacher and regular education teacher; 2) the evaluations considered by the CSE were deficient; 3) the goals and objectives listed on the IEP were inadequate and failed to properly account for the student’s present levels of performance; 4) respondents’ unilateral placement of the student met her needs and allowed her to progress; and 5) equitable considerations supported respondents’ claim for tuition reimbursement (IHO Decision, pp. 16, 23, 27, 28).

            On appeal, petitioner requests reversal of the impartial hearing officer’s decision insofar as it found that the IEP offered to the student by petitioner for the 2004-05 school year was inappropriate, found that the placement of the student at Kildonan was appropriate and that equitable considerations supported awarding tuition reimbursement to respondents, and granted the award of tuition reimbursement for the 2004-05 school year.

            I agree with the determination of the impartial hearing officer that the student’s 2004-05 IEP was inappropriate, that respondents’ unilateral placement was appropriate and that equitable considerations support tuition reimbursement. 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]).¹  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 F.3d 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 amended IEP supersedes the initial IEP (Application of a Child with a Disability, Appeal No. 05-021; Application of the Bd. of Educ., Appeal No. 02-076; Application of a Child with a Disability, Appeal No. 99-54).  The August 17, 2004 IEP (Dist. Ex. 3) amended and superseded the April and May IEPs (Dist. Exs. 5, 4).

         Petitioner argues that, contrary to the impartial hearing officer’s findings, the August 17, 2004 CSE was properly composed and that the impartial hearing officer erred in finding that the evaluations used by the CSE were deficient.  Petitioner also argues that the impartial hearing officer erred in finding that it had failed to properly describe the student’s current levels of performance on her IEP and had failed to appropriately set forth annual goals and short-term objectives.

          In New York State, a CSE must include the parent of the child, at least one regular education teacher of the child (if the child is, or may be participating in the regular education environment), at least one special education teacher of the child or, if appropriate, at least one special education provider of the child, a school psychologist, an additional parent of a student with a disability residing in the district, a representative of the school district who is qualified to provide or supervise the provision of special education, and an individual who can interpret the instructional implications of evaluation results, and persons having knowledge or special expertise regarding the student, and if appropriate, the student (34 C.F.R. § 300.344[a]; 8 NYCRR 200.3[a][1]). 

        The IDEA, its implementing regulations, and New York law 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][1][B][ii]; see 34 C.F.R. § 300.344[a][2]; 8 NYCRR 200.3[a][1][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][3][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][4][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 (64 Fed. Reg. No. 48, at p. 12591).  State Review Officers have 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 a Child with a Disability, Appeal No. 04-088; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-100, n.1; 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).

            It is well established, however, that the existence of a procedural flaw in the formulation of a student's IEP does not automatically require a finding of a denial of a FAPE (Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-015; see also Grim, 346 F.3d at 381; Pawlet Sch. Dist., 224 F.3d at 69; Evans, 930 F.Supp. at 93-94; Pascarella, 153 F.Supp.2d at 153; Brier, 948 F.Supp. at 1255; Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158.  Rather, a denial of a FAPE occurs only if the procedural violation results in a loss of educational opportunity for the child, or seriously infringes upon respondents' opportunity to participate in the process of formulating the IEP, or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP.  Members of the August 17, 2004 CSE included the student’s mother and father, the CSE Chairperson, a psychologist from the district’s elementary school, a fifth grade special education teacher and a fourth grade general education teacher (Tr. pp. 188, 801-02; Dist. Ex. 3 at p. 4). The additional parent member did not attend pursuant to a written request made by respondent on August 17, 2004 that the additional parent member not attend the CSE meeting  (Dist. Ex. 53; see 8 NYCRR 200.3[a][1][viii]; 200.5[c][2][v]). 

            I concur with the impartial hearing officer in his finding that the August 17, 2004 CSE meeting was improperly composed due to the lack of a proper regular education teacher.  The student’s recommended placement included participation in general education social studies and science classes as well as computer technology, art, music and physical education (Tr. pp. 105-06).  The regular education teacher present at the August 17, 2004 CSE meeting was a fourth grade teacher (Tr. pp. 802, 1020; Parent Ex. 25 at p. 11).²  It does not appear that she spoke or contributed at the August CSE meeting (Parent Ex. 25) and she did not testify at the impartial hearing.  There was no evidence presented that she had any seventh grade teaching experience or that there was any possibility that she would have been the student’s teacher (Tr. p. 987).  Petitioner does not dispute the improper composition at the August 2004 meeting, but argues that respondents were able to meaningfully participate in the IEP process at the two prior CSE meetings in April and May 2004.  It should be noted, however, that the April and May 2004 CSE meetings were tabled to enable petitioner to obtain updated educational and cognitive testing, which was not available for discussion until the August 17, 2004 meeting (Dist. Exs. 3-5). 

           The contribution from the proper regular education teacher was essential because petitioner was recommending mainstream classes for the student (Dist. Ex. 3).  Consideration of curriculum modifications or other specialized instruction or support services is integrally related to an appropriate program for a child with a learning disability (see 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 24).  The record reveals that the special education teacher on the committee expressed concern over the student’s ability to be successful in the general education environment, even with additional support (Parent Ex. 25).  I find that there was a lack of contribution at the August 17, 2004 CSE meeting from a required regular education teacher of the student, who could discuss the specific curriculum requirements and could provide input on the modifications and supplementary aides and services to ensure involvement and progress in the general curriculum, and participation in the regular education environment to the maximum extent appropriate. The lack of contribution compromised the development of the student’s IEP, significantly impeded parental participation in the formulation of the IEP and denied the student educational benefits. I concur with the impartial hearing officer that the student was thereby not offered 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).  Having found that the absence of an appropriate regular education teacher in the development of the student’s IEP at the August 17, 2004 CSE meeting resulted in the development of an inadequate IEP, it is not necessary that I consider petitioner’s contention regarding the special education teacher.

            Even if the CSE had been properly constituted, I would be constrained to find that the 2004-05 IEP was deficient.

            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).   An IEP must 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 a statement of the special education and related services and supplementary aids and services to be provided to or on behalf of the student, as well as a statement of the program modifications or supports for school personnel that will be provided to the student (34 C.F.R. § 300.347[a][3]; see 8 NYCRR 200.4[d][2][iv]).  Such education, services and aids must be sufficient to allow the student to advance appropriately toward attaining his or her annual goals (34 C.F.R. § 300.347[a][3][i]; see 8 NYCRR 200.4[d][2][iv][a]).

        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]).

        The impartial hearing officer found that the district’s evaluations of the student that were available to the CSE at its August 17, 2004 meeting were deficient (IHO Decision, pp. 16-21). I agree.

         When the CSE initially convened for the student’s annual review in April 2004, respondents were concerned that the CSE did not have updated information and the CSE agreed to update the educational testing (Dist. Ex. 5).  In June 2004, the CSE conducted an educational and cognitive evaluation, which included a writing sample and an assistive technology evaluation (Dist. Exs. 7, 8, 9).  The August 17, 2004 IEP indicates that the CSE considered the following additional information: a social history dated October 14, 1998, a psychological evaluation dated February 22, 2002, a physical examination dated September 3, 1998, an observation dated October 22, 1998, an IEP teacher report dated April 15, 1999, a mainstream teacher report dated April 23, 1999, and a report card dated March 7, 2001 (Dist. Ex. 3 at p. 4). 

         Petitioner argues that during the hearing neither respondents nor their attorney raised any concern that the student’s hearing or vision had not been properly evaluated or addressed.  However, testimony from multiple school district representatives revealed that petitioner was aware that the student had vision and hearing problems that impacted her ability to benefit from instruction (Tr. 92, 155, 163, 164, 178, 264, 297-98, 299, 1274).   Additionally, concerns about the student’s vision and hearing had been noted in a prior IEP (Dist. Ex.  63).  Further, respondents’ August 2004 letter to petitioner, which was sent several months prior to their request for a hearing, noted that the student had severely impaired vision in one eye and that her eye was “almost completely unusable” (Parent Ex. 30).  Despite this information, the CSE did not seek additional information from the student’s physician or, in the alternative, recommend an updated physical examination.

          The impartial hearing officer noted a classroom observation of the student in her current educational setting, i.e., Kildonan, was lacking (IHO Decision, p. 19).  A classroom observation in the student’s then "current educational placement" is required in an initial classification (34 C.F.R. § 300.533[a][1][ii]; 8 NYCRR 200.4[b][1][iv]), and, when appropriate, in any subsequent annual evaluation (34 C.F.R. § 300.533[a][1][ii]; 8 NYCRR 200.4[b][5][i]).  Due to the fact that the student had been out of petitioner’s school system for almost two years, an observation of respondents’ daughter in her current classroom placement at Kildonan would have been appropriate in this instance in aiding in the determination of the child's present levels of performance and in setting individual goals and objectives for the upcoming school year (see Application of a Child with a Disability, Appeal No. 01-007).  However, while the impartial hearing officer references a possible need for a functional behavioral assessment (FBA) (IHO Decision, pp. 21-22), there is nothing in the record to show that the student’s behavior impedes her learning or that of others (see 8 NYCRR 200.1[r], 200.4[b][1][v]).

         No Kildonan test results were considered according to the August 2004 IEP.  (Dist. Ex. 3 at pp. 2-3).  The record contains evidence that some CSE members may have reviewed some Kildonan testing prior to the August 17, 2004 CSE meeting, but there was no evidence that it was discussed at the meeting (Tr. pp. 138, 184, 188-89, 224, 1051-52). 

          I concur with the impartial hearing officer that the evaluative data considered by the CSE on August 17, 2004 was insufficient for the CSE to determine the student's present levels of performance and areas of need, and to develop appropriate goals and objectives for each of the student’s need areas.

          The lack of appropriate evaluations and anecdotal information regarding the student’s performance in the classroom is reflected in the August 17, 2004 IEP, which fails to adequately describe the child's present levels of performance (Dist. Ex. 3).  Global statements such as “[the student’s] cognitive abilities are average with the exception of processing speed” and “[the student’s] “reading and writing skills are below average,” do not provide a meaningful description of the student’s abilities or needs, or suggest specific deficits that need to be addressed (Dist. Ex. 3 at p. 2).  For example, although the August 2004 IEP indicates that the student needs to improve her reading skills, it does not indicate if the student needs to improve her decoding skills, reading comprehension skills or some other aspect of reading such as fluency (Dist. Ex. 3).  Furthermore, the IEP does not describe the student’s current reading abilities or state what grade level material the student is capable of reading  (Dist. Ex. 3 at p. 2).  The IEP as written contains no baseline from which to project goals and objectives.  The present levels of performance and individual needs outlined on a student's IEP serve as the foundation on which the CSE builds to identify goals and services to address the student's individual needs (see 34 C.F.R. Part 300, Appendix A, Section 1, Question 1; see also Office of Vocational and Educational Services for Individuals with Disabilities (VESID), “Sample Individualized Education Program and Guidance Document,” p. 40 [December 2002]).  Without performing appropriate evaluations of the student and developing a detailed description of her present functioning, it is unclear how the CSE determined appropriate goals and objectives for respondents’ daughter.  

           The student’s specific needs are not addressed appropriately in the August 17, 2004 IEP.  One goal is actually identical to a goal from the 2000-01 IEP (“Demonstrate an improvement in word recognition and decoding skills necessary to read for information and understanding.”) (compare August 2004 IEP, Dist. Ex. 3, at p. 4 (goal 4), with 2000-01 IEP, Parent Ex. 27 at p. 4 [goal 1]).  The goals and objectives section also fails to set forth appropriate short-term objectives because all objectives are evaluated at the end of the school year (Dist. Ex. 3 at pp. 4-6).  It is not clear what intermediate progress the student would have been expected to achieve.  The manner in which the objectives are written is not sufficient to allow a teacher to evaluate progress and conceptualize subsequent direction, to gauge the need for continuance of a task, or to identify the need to adjust the student’s goals.  Additionally, the goals are too vague and immeasurable to meet the requirements set forth in state and federal regulations.  For example, the goals recite generally that the student should “demonstrate an improvement . . .” (Dist. Ex. 3 at pp. 4-6). The goals and objectives are not reflective of the student’s present levels of performance and therefore are not reasonably calculated to enable this student to receive educational benefit (see Rowley, 458 U.S. at 206, 207).

          Based upon the improper CSE composition at the August 17, 2004 meeting, the insufficiency of the evaluations considered by the CSE and the inappropriateness of the goals and objectives listed in the IEP generated on August 17, 2004, I find that the district failed to provide a FAPE to the student for the 2004-05 school year.

           Having determined that petitioner 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 respondents have met their burden of demonstrating that the Kildonan placement selected for the student for that school year was 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).

           There is sufficient evidence in the record to conclude that the student’s special education needs were met during her 2004-05 school year at Kildonan.  The academic dean of Kildonan testified in support of respondents’ claim for tuition reimbursement.  He testified that the student met the admissions criteria for Kildonan in that she had at least an average IQ and solid cognitive functioning but also had difficulty or lags in basic language skills (Tr. pp. 877, 882).  He reported that curriculum used by Kildonan was approved by New York State and designed to be multisensory in nature (Tr. p. 886). Documents in the record indicate that Kildonan’s academic program revolves around the intensive, daily, one-to-one Orton-Gillingham tutoring (Parent Exs. 4, 5). According to the academic dean, the Orton-Gillingham philosophy that structures and dictates the language training sessions, also influences the subject matter teaching (Tr. p. 886).  Reportedly all of the school’s subject matter teachers are trained and mentored in Orton-Gillingham, as well as multisensory teaching methodology (Tr. p. 886).  Visual, auditory, and kinesthetic presentations supplement textbooks in subject matter courses (Parent Ex. 5).

            Testing conducted during the 2003-04 school year revealed weaknesses in the student’s ability to perform tasks requiring visual perceptual speed (Dist. Ex. 8).  In addition the student performed in the low average range on measures of basic reading skills, basic writing skills and spelling (Dist. Ex. 8; Parent Ex. 8 at p. 2-spelling). The student’s performance on the GORT-4 suggests that she continued to struggle with reading fluency (Parent Ex. 8 at p. 2).  The dean reported that at the beginning of seventh grade the student continued to have difficulties in the areas of spelling, basic written expression, comprehension, and decoding (Tr. pp. 881-82).  He also reported that the student had difficulty in processing language (Tr. pp. 881, 926).  Notes from the student’s seventh grade teachers indicate that as of October 2004 the student’s weaknesses included spelling and reading multisyllabic words, learning vowel teams, writing, and verbal expression (Dist. Ex. 6).  The school psychologist suggested that the student had dysgraphia (Parent Ex. 25 at p. 24).

           The record demonstrates that the Kildonan placement was appropriate to meet the student’s needs at the time placement was effectuated and that the student’s academic needs were in fact addressed by the private school.  At Kildonan the student participated in a one-to-one tutorial designed exclusively for the student to address her strengths and weaknesses in the areas of reading, writing, and spelling (Tr. pp. 882-83).  Notes from the student’s tutor indicate that during language training sessions the student worked on handwriting, phonetic concepts, spelling, fluency, decoding, grammar and sentence structure, and writing sentences (Parent Ex. 9 at p. 1, Parent Ex. 39 at p. 1).  Keyboarding or touch-typing was included in the student’s academic program (Tr. p. 897).  The academic dean reported that in terms of subject matter classes the student was at an appropriate cognitive level for science, social studies and literature and that those classes controlled for independent reading and writing demands (Tr. p. 883, see also Tr. p. 919).  The academic dean testified that the student’s processing delay was addressed within her language training tutorial and in her classes (Tr. pp. 953-54).  Specifically, her teachers knew that the student might need information explained a second time or might need to spend additional time on a topic (Tr. pp. 953-54).  The dean reported that the teachers would take information from a textbook and put it in note form at the student’s reading level (Tr. p. 955).  For seventh grade the student was placed in a math class consisting of six students with similar needs (Tr. p. 885).  The dean opined that based on his observations of the student in her language training tutorial and her performance in academic classes she was continuing to make progress (Tr. p. 908).  He acknowledged that the student had not made enormous progress but indicated the progress was highly appropriate given her processing speed and the one-to-one Orton-Gillingham teaching provided to the student (Tr. p. 909).

           Petitioner challenged the appropriateness of Kildonan based on the lack of certified teachers employed by the school, the testimony of the academic dean that Kildonan had not recommended assistive technology for the student and a comment made by the academic dean related to subject area courses which is discussed below.  Petitioner also suggested that the student was inappropriately placed in the upper school at Kildonan because the dean had commented that contact with the older students was overwhelming to the student.  I find these arguments to be without merit.  It is well settled that a private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 14; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).  Although Kildonan did not recommend assistive technology for the student, it was providing the student with several of the devices and services recommended on the student’s August 17, 2004 IEP.  Specifically, the student had some access to a word processor and spellcheck (Tr. p. 897), the student was learning keyboarding and/or touch-typing (Tr. p. 897) and the Kildonan teachers provided students with textbook notes written at a reading level appropriate to the student (Tr. p. 955).  The dean indicated that based on the student’s age and abilities he thought it was better to spend time teaching the student remedial strategies rather than her spending that same time learning to use books on tape (Tr. pp. 907-08).  He indicated that books on tape might eventually be appropriate for the student.  Petitioner’s assertion that the dean testified he thought it would be a “waste of time” for students to be educated in grade level science or social studies, as long as they had access to a curriculum that was appropriate to their abilities, does not appear to accurately characterize the dean’s testimony (Tr. pp. 918-21, 948).  Finally, while the dean did testify that the student had “come back into her shell a little bit” after moving to the upper school, he indicated that it was “not to the level that she was in the beginning of sixth grade” when the student first entered Kildonan (Tr. pp. 949-50).

            Based upon the record, respondents have met their burden of demonstrating that Kildonan offered a program that met their daughter’s special education needs.

            The final criterion for an award of tuition reimbursement is that respondents’ 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 [2d 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 [1985]). 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]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026).

            In the absence of evidence demonstrating that respondents failed to cooperate in the development of the IEP or otherwise engage in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim of tuition reimbursement (Application of a Child with a Disability, Appeal No. 04-049).  Petitioner asserts that respondents improperly failed to share Kildonan information, but this is not supported in the record.  There is no evidence in the record establishing that respondents failed to sign consent forms for petitioner, that petitioner ever asked Kildonan for records and was refused, or that respondents were ever informed of an ongoing problem petitioner was having obtaining Kildonan records.  The record reveals that respondents attended and participated in the CSE meetings and cooperated with petitioner’s CSE in the student's evaluations and in preparing the student's IEP.  I find that respondents’ claim for tuition reimbursement is supported by equitable considerations.

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

THE APPEAL IS DISMISSED.