Application of the BOARD OF EDUCATION OF THE BARKER CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Hodgson Russ, LLP, attorney for petitioner, Ryan L. Everhart, Esq., of counsel
State University of New York at Buffalo School of Law Legal Assistance Program, attorney for respondents, H. Jeffrey Marcus, Esq., of counsel
Petitioner, the Board of Education of the Barker Central School District, appeals from the decision of an impartial hearing officer which found that it failed to offer an appropriate summer program to respondents’ son and ordered it to reimburse respondents for their son’s tuition costs at the Gow School (Gow) for the summer 2004 program and which determined that the educational program recommended by its Committee on Special Education (CSE) for respondents’ son for the 2004-05 school year was not appropriate. The appeal must be sustained in part.
At the outset, several procedural matters will be addressed. Respondents raise several affirmative defenses asserting that petitioner failed to comply with procedural requirements for the commencement of an appeal. First, respondents assert that petitioner improperly served the petition for review by delivering the petition for review to the 15-year-old daughter of respondents’ counsel at counsel’s home instead of personally serving respondents. Part 279 of the Regulations of the Commissioner of Education pertaining to practice of review of hearings for students with disabilities requires that the petition be personally served upon respondent (see 8 NYCRR 275.8, 279.2[c]). Here, however, respondents’ counsel affirmatively waived personal service upon his clients and requested that the appeal papers be sent to his home.1
As a second affirmative defense, respondents also assert that petitioner failed to serve the requisite notice with its petition. Petitioner concedes that the petition for review did not contain a notice with petition as required by 8 NYCRR 279.3. Respondents are represented by experienced counsel and their answer was served and filed in a manner comporting with the Commissioner’s regulations despite not having been advised that they were required to do so by a notice with petition.2 As for a third affirmative defense, respondents assert that petitioner’s 20 page memorandum of law utilizes extensive footnotes and expanded margins to circumvent the 20-page limitation imposed by 8 NYCRR 279.8[a]. Documents not comporting with the form requirements of the Regulations of the Commissioner may be rejected in the sole discretion of a State Review Officer (8 NYCRR 279.8[a]). Here, the footnotes and expanded margins were not used in a manner consistent with the form requirements, however, I do not find that petitioner has gained any advantage or that I need to reject or not consider the memorandum of law. I do, however, caution petitioner’s counsel to comply with the form requirements in the future.3
Taking into consideration respondents’ affirmative defenses and petitioner’s reply, I will exercise discretion and decline to reject the petition based on procedural grounds (8 NYCRR 279.8[a]). However, I remind petitioner of the practice requirements of Part 279 of the Commissioner’s Regulations and caution that failure to comply with service and form requirements may result in the dismissal of a petition.
At the time of the impartial hearing, the student was attending eighth grade at petitioner’s school. The student’s current eligibility for special education programs and services and his classification as a student with a learning disability (LD) are not in dispute in this appeal (8 NYCRR 200.1[zz]).
According to a February 25, 2002 psychological evaluation report, respondents’ son was first enrolled in the Barker Central School District in January 1999, and was repeating second grade during the 1998-99 school year (Dist. Ex. 51 at p. 1). The psychological evaluation also noted that the student was originally classified speech-language impaired when he attended kindergarten in another school district, but was subsequently classified as LD (Dist. Ex. 51 at p. 1).
Administration of the Wechsler Intelligence Scale for Children–III (WISC-III) to the student in February 1999 yielded a verbal IQ score of 99, a performance IQ score of 91 and a full scale IQ score of 95, indicating cognitive functioning in the average range (Dist. Ex. 51 at p. 2). The student has identified deficits in reading decoding and reading sight vocabulary as well as deficits in spelling, written language and math.
When the student entered second grade in petitioner's district, he received reading instruction in a 6:1+1 special education class which implemented the principles and strategies of the Orton-Gillingham reading methodology (Tr. pp. 576, 643-45). He reportedly made progress in this reading program and was placed in a specialized reading program in third grade during the 1999-2000 school year (Tr. pp. 643-45). Specialized reading is described in the record as a less restrictive program because, unlike the 6:1+1 program in which the student was placed the previous year, specialized reading is available to both classified and nonclassified students (Tr. pp. 572, 635, 643-45). Specialized reading is a 15:1 program, but it was noted that because the school district is a relatively small district, the 15:1 class does not have 15 students, but rather has five students (Tr. pp. 683-84).
The Wechsler Individual Achievement Test-Second Edition (WIAT-II) was administered to the student when he was nine years, nine months old and in third grade (Parent Ex. PPPPP at pp. 4-6). The student achieved standard (and percentile) scores of 70 (2) in basic reading and 69 (2) in reading comprehension, for a reading composite score of 66 (1), yielding a composite grade equivalent score of 1.5. His scores of 74 (4) in spelling and 101 (53) in written expression yielded a writing composite score of 78 (7).
The student's 2000-01 individualized education program (IEP) for his fourth grade school year indicates that the student received "Special Class 15:1 English Language Arts (In General Ed.)" five times per week for 72 minutes per day as well as test modifications of tests read, tests modified as needed, testing in a separate location, answers recorded in any manner and a scribe for state and local tests (Parent Ex. RRRR at p. 3). IEP reading goals included objectives for reading fluency, reading comprehension, and decoding of short and long vowel sounds, short vowel and long vowel patterns and consonant digraphs (Parent Ex. RRRR at pp. 4-5).
The student's 2000-01 IEP test accommodations were implemented for a February 1, 2001 administration of the New York State Test of Proficiency (NYSTP) in English Language Arts, and the student's score of 686 placed him in level three of the test's scoring rubric, indicating proficiency at grade level (Parent Ex. MMMM). Accommodations were also implemented for a May 16, 2001 administration of the NYSTP in math, for which the student's score of 656 placed him at level three, indicating proficiency (id.). Re-administration of the WIAT-II on March 26, 2001 when the student was ten years, nine months old and in the fourth grade yielded standard (and percentile) scores of 69 (2) for basic reading, 60 (<1) for reading comprehension, and a reading composite score of 62 (9) (Parent Ex. HHH). His scores of 69 (2) in spelling and 68 (second) in written expression yielded a writing composite score of 64 (1) (id.).
In preparation for the student's annual review, an occupational therapy (OT) evaluation was conducted on March 23, 2001 (Parent Ex. KKK) and a speech-language evaluation was conducted on April 5, 2001 (Parent Ex. LLL). The occupational therapist identified weaknesses in the student's upper limb coordination, balance, and visual motor control and recommended OT services "on a limited basis" for a three-month period (Parent Ex. KKK at p. 5). The speech-language therapist reported a mild delay in the student's ability to recall numbers presented auditorily and weaknesses in ability to identify final phonemes in words and in decoding vowel digraphs, r-controlled vowels, consonant-vowel-consonant words ending in /e/, and dipthongs (Parent Ex. LLL at p. 2). Speech services were not recommended, but the evaluator suggested providing as-needed consultation with the classroom teacher (id.).
An IEP progress report dated June 12, 2001 indicates that, during the 2000-01 school year, the student mastered four objectives on his 2000-01 IEP, made satisfactory progress in five objectives, and demonstrated difficulty with the remaining four objectives (Parent Ex. KKKK). The student's June 2001 report card indicated grades of "B" in content areas noted that these grades reflect a modified curriculum in reading and language arts and the receipt of "integrated support services" in math, social studies, and science (Parent Ex. JJJJ).
The CSE convened on May 2, 2001 for the student's annual review and recommended that, for the 2001-02 school year, the student be placed in general education fifth grade and continue to receive special education services of "Special Class 15:1 English Language Arts (In General Ed.)" five times per week for 72 minutes per day, and also be provided with test modifications as outlined in his 2000-01 IEP (Parent Ex. AAAAA at p. 5). The IEP identified ten management needs for the student, including preferential seating, help with recording assignments, notes provided, books on tape, reduced class and homework assignments and extended time to complete assignments (Parent Ex. AAAAA at p. 4). IEP goals and objectives for reading reflected specific weaknesses identified by the speech-language therapist in her April 5, 2001 evaluation (Parent Ex. AAAAA at pp. 6-7).
A psychological evaluation of the student was conducted on February 25, 2002 when the student was 11 years, nine months old and in the fifth grade (Dist. Ex. 51). The school psychologist who conducted the evaluation did not conduct formal cognitive testing. Consistent with a district policy indicating that previous test scores could be reviewed in lieu of re-administration of an I.Q. test if two past scores were consistent (Tr. pp. 541-42, 712-14), the school psychologist reviewed the results of the February 1999 WISC-III (Dist. Ex. 51 at p. 2). The WIAT-II was re-administered as part of the February 25 evaluation and yielded standard (and percentile) scores of 69 (2) in basic reading and 56 (<1) in reading comprehension for a reading composite score of 59 (<1) (Parent Ex. PPPPP at p.1). Scores of 66 (1) in spelling and 64 (1) in written expression yielded a writing composite score of 60 (<1). The student's scores of 99 (47) in math reasoning and 98 (45) in numerical operations yielded a math composite score of 98 (45) (id.).
The CSE convened on March 13, 2002 for the student's annual review to develop his IEP for the 2002-03 school year (Parent Exs. NNN, OOO). The committee recommended that the student be placed in sixth grade general education core courses with accommodations and again receive "Special Class 15:1 English Language Arts (In General Ed.)" five times per week, but reduced the time period for this service from 72 minutes per day to 36 minutes per day (Parent Ex. OOO at p. 3). It also recommended that the student receive "Specialized Reading (In General Ed.)" five times per week, 36 minute sessions and "Counseling (Outside General Ed.)" once per week for 30 minutes in a group to address the student's anxiety related to difficulty with assignments (id.). Management needs were similar to those recommended for the 2001-02 school year, and an additional testing modification was added, allowing the student to use arithmetic tables (Parent Ex. OOO at p. 4). The student's IEP for 2002-03 contained one counseling goal, an English Language Arts goal to "increase written language skills" with two objectives, a reading goal to "increase basic reading skills" with four objectives, and a spelling goal "to increase spelling skills" with one objective (Parent Ex. OOO at pp. 5-6).
The student again was administered the NYSTP in English Language Arts and in math at the end of fifth grade in June 2002. Modifications in accordance with the student's 2001-02 IEP were implemented for these tests, yielding results at level three on all tests, indicating proficiency (Parent Exs. OO, GGG, BBBB at p. 2). His June 19, 2002 report card listed final grades of B+ in social studies with tests modified, A+ in science with a notation of the student's consistent effort, and C+ in math with a notation that assignments were not completed on time (Parent Ex. RRR). The student's reading inclusion grade of B+, his language arts inclusion grade of B and his spelling grade of I (Improving) all contained notations indicating that these grades reflected provision of support services and test modifications (id.). A June 2002 IEP progress report indicated that the student had mastered two IEP objectives in 2001-02 (Parent Ex. UUU).
The WIAT-II was again administered to the student on May 20, 2003, in the spring of his sixth grade year (Parent Exs. EEE, PPPPP). The student achieved standard (and percentile) scores of 40 (<0.1) in word reading, 56 (0.2) in reading comprehension and 69 (2) in pseudoword decoding, for a reading composite score of 47 (<0.1), yielding a grade equivalent score of 1.6. He achieved standard scores of 56 (0.2) in spelling, and his math scores of 76 (5.0) in numerical operations and 96 (39) in math reasoning yielded a math composite score of 84 (14).
The CSE convened on May 28, 2003 for the student's annual review to develop his IEP for the 2003-04 school year (Dist. Ex. 47; Parent Exs. D, E, R). The committee recommended placement in seventh grade general education core courses, consultant teacher services in English Language Arts and math and 15:1 specialized reading in general education 36 minutes per day, five times per week (Parent Ex. D. at p. 3). The record indicates that the student's math, science and social studies classes were inclusion classes, although this is not reflected on the IEP (Dist. Ex. 40 at p. 3). Continuation of classroom and test accommodations from the previous IEP was also recommended (Parent Ex. C at pp. 3, 4, Parent Ex. D at pp. 2-3). The CSE further recommended that the student receive two guided study periods for assistance with homework and that he be offered the opportunity to receive additional assistance during the tenth period of the school day (Parent Ex. D at p. 3). Guided study is described in the record as a small group general education study hall in which students receive support with homework assignments (Tr. pp. 198-99). The student's 2003-04 IEP contained one goal to "increase writing skills" with two objectives, one math goal to "increase numerical operations skills" with four objectives, and a reading goal to "increase basic reading skills" with four objectives (Parents Ex. D at pp. 4-5). Although the 2003-04 IEP stated that the student was easily frustrated by homework and became anxious and upset when overwhelmed by assignments (Parent Ex. D at p. 2), the CSE did not recommend counseling and no counseling goals were included on the IEP.
NYSTP in June 2003 yielded a math performance score at level two, which is the basic performance level and in the 36th percentile, and an English Language Arts performance level three, which is the proficient level and in the 67th percentile (Parent Ex. FFF). The student's sixth grade report card final grades on June 20, 2003 included an 82 in English, a 94 in specialized reading, an 83 in social studies, a 79 in math and a 92 in science (Parent Exs. ZZZ, BBBB).
In October 2003, when the student was in seventh grade, his parents arranged for an evaluation by a private psychologist (Dist. Ex. 40; Parent Ex. H). The evaluation was conducted in several sessions between October 29, 2003 and January 6, 2004 (Dist. Ex. 40; Parent Ex. H). Administration of the Wechsler Intelligence Scale for Children-IV (WISC-IV) yielded a verbal comprehension score of 102, a perceptual reasoning score of 92, a working memory score of 88, a processing speed score of 83 and a full scale IQ score of 90, which is in the average range of cognitive functioning (Dist. Ex. 40 at p. 4). Subtest scores identified deficits in immediate recall and concentration (id.). Administration of the WIAT-II yielded standard (and percentile) scores of 40 (<01) in word reading, 83 (13) in reading comprehension, 57 (0.2) in spelling, 60 (0.4) in written expression, 58 (0.3) in numerical operations and 86 (12) in math reasoning (Dist. Ex. 40 at p. 4). The evaluator noted that results of the WIAT-II indicated "very significant reading problems, in the moderate range for a Reading Disorder, particularly in the area of word identification skills" as well as a mathematics disorder and disorder of written expression (id.). Administration of the Childhood Memory Scale identified significant difficulties with visual memory and delayed recognition (Dist. Ex. 40 at p. 5). Results of the Test of Variables of Attention suggested attentional problems (id.). Parent ratings on the Behavior Assessment System for Children were clinically significant for an attention deficit hyperactivity disorder (ADHD) inattentive type, but no teacher ratings were in the clinically significant range for attention deficits (Dist. Ex. 40 at p. 6).
The private evaluator offered a number of recommendations, including continuation of consultant teacher services, counseling to ensure the student's understanding of his disabilities, tutoring, and ongoing assistance in reading through both remediation and compensation (Dist. Ex. 40 at pp. 7-9).
The CSE convened on February 18, 2004 and reviewed the report from respondents' independent evaluator (Tr. p. 116; Dist. Exs. 32, 33; Parent Ex. C). The committee determined that the student required a more intense reading program and recommended a change from specialized reading to a 15:1 self-contained reading class (Dist. Ex. 32, Dist. Ex. 33 at p. 3). Information from respondents’ independent evaluator's report regarding the student's performance levels was included on the IEP, and several recommendations made by the evaluator which had not already been recommended by the CSE were also added to the IEP (Dist. Ex. 33). Goals and objectives for reading were revised to reflect placement in the special education reading class (Dist. Ex. 33 at pp. 5-6).
NYSTP in English Language Arts and math was conducted in May 2004 (Parent Ex. OO). At the request of the student's parents, test accommodations were not provided to the student for these tests. His English Language Arts score at performance level one was below the basic skill level and his math performance scale at performance level two was at the basic level.
An OT evaluation conducted on May 13, 2004 identified difficulty with complex organization and sequencing, below average visual motor skills for participation in academic tasks such as writing, and distractibility (Parent Ex. L at p. 2). The evaluator recommended direct and consultation OT services focusing on remediation of perceptual motor deficits, improving organizational skills and self-advocacy regarding modifications (Parent Ex. L at p. 3).
The CSE convened again on June 8, 2004 to prepare the student's IEP for the 2004-05 school year (Dist. Ex. 18). At the June 8 meeting, the CSE reviewed various progress reports, including a progress report from the student's reading teacher, who provided specific information regarding phonemes that the student was able to decode independently. The student's general education teacher reported that the student was passing all academic classes with support of both the consultant teacher and his IEP accommodations (Dist. Ex. 18 at p. 2). The CSE recommended that the student receive extended school year services in summer 2004 to ensure maintenance of gains he had made since implementation of the February 18 IEP (Tr. p. 210). A 6:1+1 special class at the Niagara Orleans Board of Cooperative Educational Services (BOCES) was recommended five days per week during summer 2004 to address reading, writing and math goals (Tr. p. 63; Dist. Ex. 18 at p. 5). OT services were recommended twice per week (Dist. Ex. 18 at p. 5). For the school year beginning in September 2004, the CSE recommended a 15:1 special class to address reading goals and a 15:1 special class to address math goals (Dist. Ex. 18). Consultant teacher services were recommended for English Language Arts, and OT was recommended once per week individually and once per week in a group (Dist. Ex. 18 at p. 5). Goals and objectives for reading, written language, math and OT were developed for implementation in summer 2004 as well as for the 2004-05 school year (Dist. Ex. 18). Consistent with the recommendations of respondents’ private evaluator, counseling was recommended on an as-needed basis (Dist. Ex. 18 at p. 4, Dist. Ex. 40 at p. 7).
After the June 8, 2004 IEP was developed for the 2004-05 school year, the student's mother contacted a BOCES representative to inquire about the summer program available to the student (Tr. p. 155). The BOCES representative advised the student's mother that a program would be available to implement the student's IEP (id.). However, in response to the mother's inquiry about an intensive reading program, the BOCES representative advised her that BOCES did not have a reading specialist (Tr. p. 155-56). Respondents rejected the recommended BOCES program and enrolled their son in the summer program at Gow, a residential summer program that provided intensive reading instruction through a methodology called reconstructive language (Dist. Ex. 15; Parent Exs. RR, SS, TT).
By letter dated August 31, 2004, respondents requested an impartial hearing, asserting that the student did not receive a free appropriate public education (FAPE) for either summer 2004 or the 2004-05 school year (Dist. Ex. 6; Parent Ex. P). They requested reimbursement for their son's summer 2004 placement at Gow, and also requested placement at the Norman Howard School for the 2004-05 school year (Dist. Ex. 6). By letter dated October 26, 2004, respondents moved to amend their hearing request (IHO Ex. 1) to address issues including the failure by the district to offer an appropriate placement and program for the 2004-05 school year; the failure by the district to offer an appropriate placement and program for the summer 2004; the long-term failure to address the student’s reading and writing needs dating back to when the student first enrolled in the district; the failure to base placement and program recommendations on appropriate evaluations; the failure to conduct a reevaluation prior to recommending a more restrictive placement for the summer program; the failure to have a properly composed CSE; the failure to take into proper consideration respondents’ independent evaluation; the failure to assure the student was appropriately grouped for instructional purposes with children having similar needs and abilities in both the summer program and 2004-05 school year program; and the failure to assure that the summer program teacher was qualified to deliver the intensive services that the student requires. Respondents further alleged that petitioner recommended programs that were not designed to meet the student’s needs, that the fall program was not designed to appropriately address his needs and the student should not be placed in a 15:1 class for reading because his needs were too severe for him to be adequately serviced in such a class; and that the recommended summer program did not have a sufficient intensive reading component and was ill designed to meet the student’s needs. Respondents also alleged a long-term failure by petitioner from the time the student entered the district up to the present to address his severe reading and writing problems. Respondents sought reimbursement for all costs and expenses associated with the summer placement at Gow and requested additional services for petitioner’s long-term failure to address the student’s problems. Respondents also requested that petitioner’s program be supplemented by hiring a reading expert for one year and requested that the impartial hearing officer void petitioner’s recommendations and send the matter back to the CSE for further review.
In response to respondents’ motion to amend the hearing request, petitioner moved to dismiss the claims in the amended request that related to prior years, citing the one year statute of limitations (see Application of the Bd. of Educ., Appeal No. 02-119). In a decision dated December 8, 2004, the impartial hearing officer granted respondents’ request to amend the hearing request (Parent Ex. IIIII). In a decision dated April 4, 2005, the impartial hearing officer determined that a one year statute of limitations was applicable in this matter (IHO Ex. 2).
The impartial hearing began on October 26, 2004. Testimony was heard for five days and concluded on April 6, 2005. The impartial hearing officer rendered his decision on June 18, 2005 and ordered petitioner to reimburse respondents for tuition and books at Gow for summer 2004 and directed petitioner to rewrite the student’s IEP to insure that the student received a program in which intensive reading remediation was woven throughout the program over the course of the school day and taught by teachers who were specifically trained to meet his needs (IHO Decision, p. 50).
On appeal, petitioner requests that the decision of the impartial hearing officer be reversed and asserts the educational program and placement offered and/or provided by petitioner during the summer 2004 and 2004-05 school year was reasonably calculated to confer educational benefit to the student. Petitioner asserts the impartial hearing officer: failed to acknowledge proof demonstrating that petitioner provided reading instruction that closely conformed with testimony indicating that the student required a multi-sensory, structured, sequential, reading program; improperly ignored the results of the Orton-Gillingham assessments when determining that there was insufficient evidence that the student progressed in reading; failed to consider testimony of the student’s special education and reading teacher regarding his improvement in reading; mischaracterized the present levels of performance as inconsistent and incomplete; neglected to consider proof at the hearing demonstrating that the student performed well in general education classes when he received classroom and testing accommodations that utilized his auditory learning skills; failed to consider principles of least restrictive environment (LRE) when ordering petitioner to place the student in an all day, intensive reading program; failed to acknowledge the existence of goals and objectives for summer 2004 which provided a clear guideline for the instruction that the student would have received during the summer session and wrongly accredited the testimony of two other witnesses, but not of testimony from the student's special education and reading teacher. Petitioner further argues that the impartial hearing officer’s determination that the proposed summer 2004 placement was not sufficiently specific is contrary to testimony at the hearing that the program would be a continuation of the student’s reading program with his reading teacher and the impartial hearing officer’s determination that the instruction at Gow was appropriate, whereas the instruction at petitioner’s school was inappropriate is incongruous, in that the record demonstrates that the instruction provided at Gow and at petitioner’s school contained the same characteristics with regard to instructional technique and approach.
Respondents request that the petition be dismissed in all respects and that the decision of the impartial hearing officer be affirmed.
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]).4 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]; Briere 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 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 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]; 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).
I will first address the appropriateness of the program offered by petitioner for the 2004-05 school year. In his decision, the impartial hearing officer determined that the IEP developed for the student on June 8, 2004 was "mostly accurate" but contained "hyperbole, inconsistencies and omissions" because it described the student's "great strides" in progress with reading decoding but failed to state that the student could not read (IHO Decision, p. 42). The impartial hearing officer also noted that the IEP contained IQ test scores that were outdated because they were more than five years old.
I have carefully reviewed the present performance levels on the June 8, 2004 IEP, and I do not concur with the impartial hearing officer's determination. The impartial hearing officer correctly stated that the WISC-III scores on the IEP were results of evaluation conducted in February 1999 (Dist. Ex. 18 at p. 1). However, when the CSE convened on February 18, 2004 it reviewed the January 2004 evaluation report from respondents’ private evaluator, whose administration of the WISC-IV yielded results consistent with previous testing (Dist. Ex. 32; Tr. pp. 114, 116). The record contains information describing petitioner’s policy regarding cognitive testing, which allowed for review of previous IQ test results in lieu of subjecting a student to additional evaluation if results of two previous evaluations yielded consistent results (Tr. pp. 110, 712-13; Dist. Ex. 51 at p. 2).
The impartial hearing officer stated that the IEP failed to indicate that the student cannot read (IHO Decision, p. 42). Careful review of the IEP's description of the student's present performance levels in the academic domain reveals that the IEP notes that the student is able to read at a 1.8 grade level and indicates that this grade level is based upon the Flesch-Kincaid readability formula (Dist. Ex. 18 at p. 2). Additionally, the IEP precisely describes the student's areas and levels of deficit in reading, stating, for example that he is able to recognize 88 percent of the non-phonetic words from the Tutor 1 list, is able to decode single syllable short vowel syllables with approximately 80 percent accuracy, and can blend phonemes into words and match sounds to symbols (Dist. Ex. 18 at p. 2).
While I concur with the impartial hearing officer's opinion that the statement in the IEP indicating that the student had made "great strides" in his intensive reading program is hyperbole, the remark is tempered by the reporting of scores and appears to reflect the commitment and enthusiasm of the reading teacher, who would be expected to consider the student's progress relative to his performance at the time her instruction was initiated. In her testimony on October 26, 2004, at the beginning of the 2004-05 school year, this teacher described the student as "enthusiastic" about his progress and noted that, in his reading class the student was " usually the first one that wants to read" (Tr. p. 88). This teacher also testified that she had assessed the student's reading performance the week before her testimony and he had scored at the third grade level (Tr. p. 86).
In the area of written language, the June 8, 2004 IEP describes the student's difficulty as well as his extensive foundation of background knowledge and ability to generate ideas and summarize information, which are areas of strength (Dist. Ex. 18 at p. 3). The IEP also describes the student's success in working with a scribe and in using graphic organizers (id.). Deficits in mechanics of writing are described in the June 8 IEP, summarizing results of administration of the Developmental Test of Visual-Motor Integration performed on May 13, 2004, which yielded scores in the severely low average range (id.; Parent Ex. L at p. 2). The June 8 IEP also includes specific information describing the student's performance in spelling. It notes that he has made progress in this area and often self-corrects, and that he does not always apply spelling rules he has learned (Dist. Ex. 18 at p. 3).
The June 8, 2004 IEP describes specific circumstances under which the student best performs math calculations – through use of charts or a calculator – as well as strategies most effective for addressing his difficulty with abstract math concepts, such as re-teaching and repeated review (Dist. Ex. 18 at p. 3). The student is described elsewhere on the IEP as able to use his skills as an auditory learner to achieve success in other core courses, but the IEP's description of the student's performance in math makes an important distinction, indicating that the student has difficulty solving word problems even if they are read to him. The IEP includes detailed descriptions of the student's current math skills, such as his ability to order numbers, compare and contrast shapes, solids, lines and angles, identify missing numbers in rote counting and compute multi-digit addition with regrouping.
In reviewing the June 8, 2004 IEP's description of the student's academic needs, I note that the IEP identifies four reading needs: – increased recognition of sight words, use of context clues to identify unknown words, reading fluency and phonemic awareness – which succinctly describe the student's reading deficits. Goals and objectives are included for each of these areas of need (Dist. Ex. 18 at pp. 7-10). Written language needs as described on the June 8, 2004 IEP emphasize spelling and organization and provide detailed instructions regarding modification of homework assignments into smaller components with associated short-term deadlines (Dist. Ex. 18 at pp. 3-4). The IEP's description of the student's written language needs delineates in detail his need for accommodations to address his written language deficits, in some cases identifying the specific deficit addressed by a particular accommodation (Dist. Ex. 18 at p. 6). A description of math needs focuses on improvement in math operations, specifically division, addition and subtraction of fractions, subtraction involving decimals, as well as functional skills relating to time and money, which had been identified as a deficit in a recent OT evaluation (Dist. Ex. 18 at p. 3; Parent Ex. L). The IEP also notes the student's need to increase his speed and accuracy in multiplication, supporting a statement in the performance levels section of the IEP which indicates that the student could complete multiplication facts from zero to ten in seven minutes with 75 percent accuracy (Dist. Ex. 18 at p. 3).
The June 8, 2004 IEP's statement of the student's present performance levels in the social domain describes the student as able to interact appropriately with peers and adults and to contribute to class discussions (Dist. Ex. 18 at p. 4). Counseling is identified as a need in order to address his learning disabilities, which are described in the record as being a source of frustration for the student (id.). Counseling is recommended on an "as needed" basis, consistent with the counseling recommendation made by respondents’ private evaluator in his January 6, 2004 report (Dist. Ex. 18 at p. 4, Dist. Ex. 40 at p. 7; Parent Ex. H at p. 7).
The June 8, 2004 IEP's description of the student's physical development notes that the student is able to participate in general education physical education classes (Dist. Ex. 18 at p. 4), which is supported by his report card grades in general education physical education (Dist. Ex 16; Parent Exs. PPPP, JJJJ, RRR, ZZZ, BBBB). The physical development portion of the IEP also describes in detail the student's visual motor deficits, stating precisely how these deficits affect the mechanics of writing, and identifies his need for OT services to address these deficits (Dist. Ex. 18 at p. 4).
In the management needs section of the June 8, 2004 IEP, the student's attentional deficits are not merely noted, but are described in a manner which indicates how and to what extent the student's ADHD is manifested in the classroom as well as the impact this has upon his ability to benefit from instruction (Dist. Ex. 18 at pp. 4-5). The IEP notes that the student is well behaved in class, participates, and demonstrates adequate effort, but often makes inappropriate remarks, and that on some occasions he appears to be off task but when questioned is able to recall what is being taught (Dist. Ex. 18 at p. 5). The IEP also provides insight into the student's difficulties with written assignments and a description of strategies which have been successful in helping the student complete his homework (id.).
The management needs section of the IEP includes a detailed list of classroom and testing strategies to accommodate the student's attention deficit, including modification of assignments, books on tape, and opportunities to participate in activities which require movement. Recommendations for close-proximity seating, modified assignments, extended time for assignments and use of a scribe are consistent with recommendations made by the respondents’ private evaluator in his January 6, 2004 report (Dist. Ex. 40 at pp. 7-9; Parent Ex. H at pp. 7-9). The identified need for the student to have his assignments checked for accuracy after he writes them in his agenda is consistent with the private evaluator's recommendation that the student receive assistance at the "point of performance" (Dist. Ex. 40 at p. 8; Parent Ex. H at p. 8).
To address the student's identified deficits, the 2004-05 IEP developed on June 8, 2004 recommended special class placement 72 minutes per day for reading and math and consultant teacher services 36 minutes per day to address written language deficits (Dist. Ex. 18 at p. 5). I note that this recommendation is consistent with recommendations made by respondents’ private psychologist in his January 6, 2004 report, in which the evaluator stated that the student should continue to receive the services of a special education teacher to monitor assignments and manage his academic workload (Dist. Ex. 40 at p. 8; Parent Ex. H at p. 8). Consultant teacher services are also consistent with the private evaluator's recommendation that the student receive assistance at the "point of performance" (id.). The June 8, 2004 IEP also recommended OT services to address the student's identified need to improve his perceptual motor skills (Dist. Ex.18 at pp. 4-5).
Regarding goals and objectives, the impartial hearing officer noted the testimony of one of the parents' witnesses, which the impartial hearing officer determined was not rebutted by the district (IHO Decision, p. 42). This witness opined that some objectives on the June 8, 2004 IEP were "unrealistic" for the student (id.). I note that this witness does not have an educational background in special education, is not certified to teach special education and is not certified in any other area by New York State, has never been a classroom teacher, and had never met the student (Tr. pp. 855-57). This witness had received training in implementation of an Orton-Gillingham based methodology referred to in the record as the Sonday System, at Gow, where the student's special education teacher had received the same Orton-Gillingham based training (Tr. pp. 35-36, 667, 802-04, 855-57, 860-861). I further note that this witness is employed by the Sonday System as a representative, presents training in use of the system to teachers, and also has a private practice in which she provides tutoring services (Tr. p. 802). I also note that the witness testified that she was aware that respondents had requested her services as a consultant in their request for relief (Tr. p. 886). I also find that there is a basis in the record for me to substitute my judgment for that of the impartial hearing officer pertaining the testimony of this witness. The June 8, 2004 IEP contains two written language goals, two spelling goals, two OT goals, three reading goals, and five math goals (Dist. Ex. 18 at pp. 6-12). The two written language goals were identified as the responsibility of the consultant teacher (Dist. Ex. 18 at p. 6). One goal states that the student will write an essay which would allow him to achieve a score of three on a rubric (id.). The IEP does not identify the rubric, but the record indicates that this rubric is related to scoring on New York State competency tests, for which a score of three on the rubric indicates proficiency (Parent Exs. OO, FFF, GGG, MMMM). The two objectives related to this goal address organization of ideas and developing supporting details (Dist. Ex. 18 at pp. 6-7). The IEP notes that the student will use a mapping sheet to organize his work and that his ideas and written assignments can be dictated to a scribe (id.). A second goal addresses the student's ability to write a book report, and allows for both use of Books on Tape and a scribe to whom the report can be dictated (Dist. Ex. 18 at p. 7). Both written language goals acknowledge the student's ability to generate and summarize ideas for dictation to a scribe as well as his need to improve his ability to organize ideas and develop supporting details sufficient to increase his scores on state tests. However, the student's score on state English Language Arts testing in May 2004 placed him at level one on that test's rubric, suggesting that a score of three might be an overly optimistic goal to achieve in one year if the CSE continues to comply with respondents’ request to withhold accommodations for state tests (Parent Ex. OO). I also note that the anticipated completion date of June 26, 2005 for objectives related to this goal does not provide benchmarks for determining the student's progress throughout the school year. Although I recommend that the completion date for this goal be adjusted to reflect the actual date state testing is scheduled to occur, I note that respondents have consistently been provided with quarterly progress reports on all goals and objectives, which mitigates this concern (Parent Exs. M, UUU, KKKK).
The June 8, 2004 IEP contains two OT goals (Dist. Ex. 18 at p. 7). One goal addresses mechanics of writing, an identified area of need (Dist. Ex. 18 at pp. 4, 7). Another goal addressing keyboarding is directed at providing the student with strategies to compensate for his writing difficulties (Dist. Ex. 18 at p. 7). Objectives for these goals are specific and measurable, stating, for example, that the student will be able to type the alphabet with 90 percent accuracy for four out of five trials, glancing at the keyboard one time or less (Dist. Ex. 18 at p. 7). The two goals address the student's need for remediation in writing as well as for compensation for his disability in this area through use of word processing. However, as was the case with the objectives for the student's written language goals, each objective has an anticipated completion date of June 25, 2005 which does not allow for ongoing communication of progress to respondents.
The June 8 IEP contains three reading goals to be implemented in the student's 15:1 specialized reading class (Dist Ex. 18 at pp. 7-10). A goal for identifying context clues addresses the student's reading vocabulary deficits and anticipates progress at the second grade level, appropriate for a student who was reading at the 1.8 grade level when the IEP was developed (id.). A goal to increase phonemic awareness has five objectives which specifically identify the conditions under which progress will be measured as well as the tools to be used for instruction and assessment (id.). The goal begins at the student's present performance level and has five objectives which progress in difficulty and which have target dates appropriate to each level of difficulty (id.). A goal for reading fluency has three objectives which reflect increasing levels of accuracy at the student's reading level (Dist Ex. 18 at p. 10). A spelling goal has four objectives which address functional vocabulary, long and short vowel clusters consistent with the student's reading level, and non-phonetic sight words, measured with weekly spelling tests (id.). A second spelling goal also addresses the spelling of common functional words and has objectives for spelling the days of the week and the months of the year, an area of need identified in a May 2004 OT evaluation (Dist. Ex. 18 at pp. 10-11; Parent Ex. L at p. 1).
The June 8 IEP also has four math goals (Dist. Ex. 18 at pp. 8, 11-12). The goal for multiplication indicates that the student will complete 100 multiplication problems from zero to ten with 90 percent accuracy within five minutes, and the first of two objectives states that the student will achieve 90 percent accuracy in ten minutes by January 2005 (Dist. Ex. 18 at p.11). This is consistent with the student's stated performance levels, which indicate that, at the time the IEP was developed, he was able to complete this task in seven minutes with 75 percent accuracy (Dist. Ex. 18 at p. 3). Other math goals and objectives are also behaviorally stated and include appropriate criteria for measurement of progress (Dist. Ex. 18 at pp. 8-9, 11-12). The scope and quantity of objectives appears to be somewhat ambitious, but may reflect the increase in level of service recommended for the student in math (Tr. p. 205; Dist. Ex. 1).
Evaluations used by the district in previous years relied primarily on WIAT-II scores, which provided a global measure of the student's performance and suggested regression (Parent Exs. EEE, HHH, PPPPP). The impartial hearing officer concluded that, because the WIAT-II was frequently relied upon in State Review Officer decisions and he could find no State Review Officer decision relying upon the IOTA, the student's IOTA scores, which indicated progress, should be disregarded and the WIAT-II scores, which showed regression, should be relied upon in determining the success of the student's program (IHO Decision at p. 44). Because of the severity of the student's reading disability, which requires intensive phonetic-based instruction, the assessment tool selected should measure the student's skills in recognizing each sound/symbol association. WIAT-II scores do not provide information at this level of specificity. The IOTA used by the special education teacher who began teaching reading to the student in February 2004 was an appropriate assessment tool (Dist. Ex. 3). It provides detailed information regarding learner progress in each sound/symbol combination, allowing instruction to be precisely tailored to the student's current performance level (id.). The IOTA provides information regarding student progress in small, discrete increments, critical for measuring progress of a student who, because of the severity of his disability, can be expected to make gains in small steps.
After careful review, I find that the 2004-05 IEP developed on June 8, 2004 contains detailed, specific information about the student's strengths and needs, supported by information in the record describing these strengths and needs. I also find that the extensive array of classroom and test modifications and accommodations are sufficient to enable the student to participate meaningfully and benefit from instruction in the general education setting. The success of these accommodations is documented in the record before me, which contains descriptions of how the student's grades in general education core courses were determined (Parent Exs. Y-CC, EE-GG, GGGG, LLLL). Respondents’ assertion that these grades are not valid because they are based upon a modified curriculum is not consistent with the standards and philosophies of inclusion programs, which are designed to incorporate these modifications and accommodations in order to allow a student to receive services in the LRE while performing at his level of ability.
Respondents’ private evaluator recommended that the student receive assistance in reading through both remediation and compensation (Dist. Ex. 40; Parent Ex. H). The 2004-05 IEP developed on June 8, 2004 provides for both methods of assistance. Remediation is provided to the student through a daily special education class, with goals for improving phonemic awareness, sight vocabulary, and reading fluency. Compensation services are addressed through an extensive array of classroom and testing accommodations and modifications, which include most of the accommodations recommended by respondents’ private evaluator in his report, and include additional accommodations beyond these recommendations, based upon the recommendations made by members of the CSE who interacted with the student on a daily basis and who were thus able to speak knowledgably about the effectiveness of various strategies.
The impartial hearing officer awarded respondents tuition reimbursement at Gow for the summer 2004, including the cost of books used in connection to the school curriculum. On this issue, I disagree.
When the CSE convened on June 8, 2004 to prepare the student's IEP for the 2004-05 school year, it recommended extended services for summer 2004 consisting of six hours per day in a 6:1+1 special education classroom at the Niagara-Orleans BOCES with related services of individual OT 30 minutes per week and OT in a small group for 30 minutes per week (Dist. Ex. 18 at p. 5). The CSE Chairperson submitted the June 8 IEP to the special education coordinator at BOCES responsible for arranging BOCES summer programs, who read the IEP and informed the CSE Chairperson that an appropriate summer program would be available for the student at BOCES (Tr. pp. 152-54). In testimony, the BOCES coordinator described the process by which Niagara-Orleans BOCES arranged summer services. She stated that extended school year programs were developed from IEPs submitted by participating districts (Tr. p. 153). The BOCES coordinator described the proposed program as a six-week full-day program with related services as specified in each IEP (Tr. p. 159). She described the available 6:1+1 self-contained classes as academic programs for students classified LD, multiply handicapped or speech-language impaired (Tr. pp. 161-62) and explained that instruction was provided "according to the IEP" (Tr. p. 162). The BOCES coordinator explained that all teachers in the program were certified special education teachers who provided instruction based on the IEPs developed by each student's CSE and who addressed goals identified for extended school year services on each IEP (Tr. pp. 153, 159, 162). Programs were developed to conform to the instruction each student received during the ten months of the school year "as close as possible to their classroom instruction from the proceeding school year" (Tr. p. 162). The BOCES coordinator testified that because respondent's son was never enrolled in the BOCES extended school year program, he was never assigned to a specific class, but she noted that appropriate 6:1+1 programs were available and, had the student been enrolled, she would have placed him at an appropriate location as close as possible to his home school district (Tr. p. 167). The BOCES coordinator testified that, after reading the June 8, 2004 IEP, she concluded that "as identified on the [student's] IEP, our program was very appropriate" (Tr. p. 157).
The impartial hearing officer determined that petitioner did not present sufficient evidence to establish the appropriateness of the recommended extended school year program in the June 8 IEP (IHO Decision, p. 39). I disagree. The recommended BOCES program was a self-contained academic class which implemented each student's IEP. The IEP forwarded to the BOCES coordinator was the June 8, 2004 IEP. As described above in my analysis of the June 8 IEP, this IEP contains sufficient specific information about the student to allow implementation by a special education teacher. Goals and objectives to be implemented in summer 2004 were clearly identified, as were accommodations, modifications, and descriptions of the student's present performance levels, learning styles and needs. Based upon the thoroughness of the information contained in the June 8 IEP, I find that a special education teacher in the BOCES extended school year program would have been able to use this IEP as the basis for providing a FAPE to the student.
Although the necessary inquiry is at an end pertaining to the proposed summer 2004 because petitioner demonstrated that it offered a FAPE, I do note that I concur with the impartial hearing officer’s conclusion that respondents provided sufficient evidence demonstrating that the summer program at Gow was appropriate. I find the summer program at Gow addressed the student’s needs. Testimony from the student's teacher at Gow and progress reports from the Gow 2004 summer program indicate that the program provided to the student at Gow included small-group instruction in the student's areas of need and implemented Orton-Gillingham based instructional methodologies comparable to those used by the student's reading teacher in the district beginning in February 2004 (Parent Exs. ZZ-CCC; Tr. pp. 587-89, 704-06).
Upon review of IEPs for the 2003-04 and 2004-05 school years and of progress reports and testimony, I find that, after receipt of the January 2004 report from respondents’ private evaluator, the CSE developed a program for the student which addressed his deficits in reading, written language and math, and that the IEP developed for 2004-05 further refined the appropriate program outlined in the February 18, 2004 IEP.
The impartial hearing officer rendered his decision on June 18, 2005, and petitioner's appeal was received by the State Review Officer after the 2004-05 school year had ended. In his decision, the impartial hearing officer remanded the matter to the CSE, directing it to revise the IEP to include intensive reading instruction throughout the entire school day (IHO Decision, p. 50). It is unclear from the record whether the CSE did reconvene to amend the IEP for the few days that may have remained in the 2004-05 school year. What is clear from the record is that the severity of the student's needs has now been adequately identified, and that the CSE is now responding appropriately to these needs. I direct the CSE to fully consider the impact of the student's reading and writing deficits upon his ability to participate in and benefit from academic instruction, and I direct the CSE to ensure that future IEPs provide all services necessary to allow the student to remain in the general education setting while his disabilities are addressed through individualized instruction. I further direct the CSE to increase the level of intensive reading instruction and employ all appropriate resources and strategies to compensate for the inadequacies of the reading instruction provided in previous years.
The student's reading deficit is severe. At the end of seventh grade, he was reading below the second grade level. As he enters ninth grade for the 2005-06 school year, reading demands will increase. While I concur with the impartial hearing officer and with respondents’ private evaluator that the CSE should give serious consideration to providing a more intense level of direct instruction in reading and written language, possibly through a 1:1 tutorial, it is not realistic to anticipate that direct instruction, no matter how individualized and intensive, will enable the student to read at a level which will allow him to meet the reading and writing demands in high school. Therefore, although I uphold the impartial hearing officer’s direction that the CSE develop an intensive program of instruction, I do not concur with the impartial hearing officer’s direction that the CSE provide a program in which "intensive reading remediation is woven throughout the program over the course of the school day" (IHO Decision, p. 50). Incorporation of reading instruction at the level required by the student into high school level core courses is neither practical nor advisable in a general education setting, because it could distract from the content of core courses and further frustrate the student.
In recognition of the severity of the student's reading and writing deficits, the CSE has consistently provided an array of accommodations which have allowed the student to participate meaningfully and successfully in general education courses despite his reading deficits. As the committee reconvenes to design an intensive reading program for the student, it should be mindful of the recommendation of respondents’ private evaluator to provide both remediation and compensation. Intensive remediation alone will not be sufficient for this student. If he is to benefit from instruction in a general education high school setting, he will require compensatory strategies in order to learn subject content. These strategies should include self-advocacy as well as the services and accommodations already in place.
I have considered petitioner’s and respondents’ remaining contentions and I find them to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that within 30 days from the date of this decision, the CSE reconvene to develop an intensive program of instruction in reading and written language, with accommodations and modifications which will allow the student to remain in the general education setting while his special education needs are addressed through individualized instruction.
1 Attached to petitioner’s reply is Exhibit A, which is a copy of a July 5, 2005 electronic mail from respondents’ counsel to petitioner’s counsel, requesting that the appeal papers be sent to the address of counsel’s home and private legal office. Generally, documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary in order to render a decision (Application of the Bd. of Educ., Appeal No. 04-068; see generally Application of a Child with a Disability, Appeal No. 04-030; Application of a Child with a Disability, Appeal No. 04-020). In the exercise of my discretion, I decline to accept the additional documents submitted on appeal but for the copy of the July 5, 2005 electronic mail. I find that Exhibit A was not available at the time of the hearing and it is necessary to enable me to render my decision.
2 In part, the content of the required notice advises a respondent that they are required to appear and answer the allegations in the petition, that the answer must comply with the regulations of the Commissioner, and that the answer must be timely served and filed (8 NYCRR 279.3).
3 In addition to the affirmative defenses raised in the answer, respondents assert that petitioner’s reply was not verified and it contained information that exceeded replying to respondents’ procedural defenses (8 NYCRR 279.6, 279.7). Petitioner has corrected its verification error by subsequent submission to the Office of State Review of a verified copy of the pleading in question (see, e.g., Application of a Child with a Disability, Appeal No. 04-081; Application of a Child with a Disability, Appeal No. 04-059; Application of a Child with a Disability, Appeal No. 02-009; Application of the Bd. of Educ., Appeal No. 01-014). I will accept petitioner’s reply but not consider responses contained therein that go beyond responses to respondents’ procedural defenses.
4 On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEIA], Pub. L. No. 108-446, 118 Stat. 2647). Citations contained in this decision are to the statute as it existed prior to the 2004 amendments. The relevant events in the instant appeal took place prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEIA do not apply.