Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Pine Plains Central School District
Family Advocates, Inc., attorney for petitioners, RosaLee Charpentier, Esq., of counsel
Shaw and Perelson, LLP, attorney for respondent, Garrett L. Silveira, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their son's tuition costs at the Kildonan School (Kildonan) for the 2004-05 school year. The appeal must be dismissed.
At the time of the January 5, 2005 hearing request, petitioners’ son was 14 years old (see Dist. Ex. 2). His educational history up to August 2003 is set forth in Application of a Child with a Disability, Appeal No. 04-093,1 and will not be repeated here in detail. The student's eligibility for special education programs and services as a student with a learning disability is not in dispute (see 8 NYCRR 200.1[zz]).
The student was enrolled as a seventh grade student at Kildonan during the 2003-04 school year (Tr. pp. 200-10). Kildonan is a co-educational boarding and day school program which serves students from 2nd to 12th grades and provides remediation in reading, writing and spelling to students with dyslexia (Joint Exs. 137, 152 at p. 833). Kildonan has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities. The student received a daily individual language training tutorial based on the Orton-Gillingham approach (Joint Ex. 152 at p. 846, Joint Ex. 158 at p. 1). The Orton-Gillingham methodology is a structured, sequential approach to reading and language arts, which uses multisensory teaching strategies (see Joint Ex. 152 at pp. 249-51). The student completed coursework in English skills, literature, mathematics, history, and earth science and received grades in the B-C range with the exception of English skills, which was an ungraded course (Joint Ex. 6). The student's academic progress at Kildonan was reported to petitioners by interim reports (Joint Exs. 8-12).
During the 2003-04 school year the student was described by the academic dean of Kildonan as having deficits in phonemic awareness, processing and verbal memory skills (Joint Ex. 152 at p. 836). The student's deficits were described by the dean as "on the more severe side" compared to the rest of the Kildonan population (Joint Ex. 152 at p. 840). The student’s "storage and retrieval system" was described as "ineffectual," resulting in difficulty recalling basic types of information, which required additional remediation (Joint Ex. 152 at pp. 837-39).
In an October 2003 progress report, the student was described as cooperative and receptive during tutoring sessions (Joint Ex. 8). He reportedly learned to write a basic paragraph and an expanded paragraph using transition words, as well as to read books aloud to improve reading fluency. A main focus of language training sessions was to improve the student’s encoding and decoding skills (id.). In a progress report dated November 26, 2003, the student reportedly focused on phonics including vowel and consonant sounds, syllable types and common vowel pairs (Joint Ex. 9 at p. 1). The student studied spelling rules and his spelling words were often derived from his own written product. He was reported to implement phonetic concepts and spelling rules subconsciously into his written work and was noted to apply decoding skills more automatically when reading aloud (id.). In a report dated February 24, 2004, the student was reported to have improved by one grade in spelling skills since the beginning of the school year and demonstrated "significant" gains in his ability to decode multisyllabic words (Joint Ex. 11 at p. 1). Throughout the school year many of the student's teachers at Kildonan commented that they would have liked the student to have participated more in class and to have asked for assistance when necessary (Joint Exs. 8-12). However, by the April 23, 2004 progress report, two out of four teachers noted improvement in these areas (id.).
Kildonan conducted standardized testing of the student in December 2003 and May 2004 (Joint Ex. 7; Tr. pp. 213-16). The word identification subtest of the Wide Range Achievement Test-Third Edition (WRAT-3) was administered to assess the student's ability to decode and pronounce words, which revealed an increase in standard scores from 90 in December 2003 to 101 in May 2004 (Joint Ex. 7 at p. 1). The Gates-MacGinitie Reading Tests-4th Edition (GMRT-4) was administered to assess vocabulary and comprehension. The student’s scores on the December 2003 administration placed his vocabulary in the 25th percentile. Administration in May 2004 placed him in the 34th percentile. In comprehension, he placed in the 19th percentile in December 2003 and in the 18th percentile in May 2004 (id.). The academic dean of Kildonan stated that although seventh grade norms were used, the student was administered the sixth grade version of the GMRT-4, as the purpose of the assessment was to provide Kildonan staff with information about how the student was applying certain skills (Tr. p. 215). The Gray Oral Reading Test, 4th Edition (GORT-4) was administered to assess rate, accuracy and fluency. In reading rate, the student placed in the 2nd percentile in both the December 2003 and May 2004 administrations (Joint Ex. 7 at p. 1). In fluency, he increased from less than the 1st percentile in December 2003 to the 1st percentile in May 2004. In accuracy, the student achieved the largest gains of the three subtests, scoring in the less than the 1st percentile in December 2003 and the 16th percentile in May 2004. The student's spelling skills measured by the WRAT-3 revealed standard scores of 81 in December 2003 and 85 in May 2004 (id.). Performance on the Stanford Diagnostic Math Test revealed a decline on the applications subtest from 62nd percentile in December 2003 to the 43rd percentile in May 2004 (Joint Ex. 7 at p. 2), however, the student's achievement on the computations subtest increased from the 11th to the 28th percentile during that same timeframe (id.).
Respondent’s Committee on Special Education (CSE) was scheduled to convene for an annual review on April 1, 2004, however, it was changed to a "progress meeting" as the CSE chairperson, who is also respondent’s assistant superintendent for curriculum instruction and pupil personnel services (Tr. pp. 29-30), was unable to attend (Tr. p. 97). Petitioners were provided with a draft individualized education program (IEP) to review at the meeting (Joint Ex. 156; Tr. p. 287).
The CSE convened on May 20, 2004 for an annual review of the student’s program and discussed a draft IEP which offered the student four periods of inclusion classes daily, one period of multisensory reading daily, one period of writing intervention daily, and once weekly counseling in a group of five (Joint Ex. 13, Parent Ex. B). Various testing accommodations were offered such as extended time, use of a word bank and spell check (Parent Ex. B at pp. 1-2). In addition, program modifications and access to assistive technology devices were offered (Parent Ex. B at pp. 1-2). Interim reports pertaining to the student's performance at Kildonan during the 2003-04 school year and testing completed in May 2004 were reviewed by the CSE (Joint Ex. 13 at pp. 1-5). Kildonan's academic dean participated at the meeting via telephone (id.). The CSE chairperson reviewed the student's proposed goals, objectives and modifications, as well as assistive technology needs (Joint Ex. 13 at pp. 5-8). At the meeting, the student's mother expressed disagreement with a statement contained in the IEP and subsequently, petitioners left the meeting (Joint Ex. 13 at pp. 8-9).
Respondent completed the final version of the student's IEP on August 5, 2004 which petitioners received on August 23, 2004 (Joint Ex. 14; Tr. pp. 69, 303). The resultant IEP was similar in most respects to the program described in the draft IEP discussed at the May 2004 CSE. It retained the inclusion program, multisensory reading and writing intervention, but removed counseling and behavior goals (compare Parent Ex. B at p. 1, with Joint Ex. 14 at p. 1).
The student attended eighth grade at Kildonan during the 2004-05 school year (Joint Exs. 1, 18, 24).
By letter dated January 5, 2005, petitioners requested an impartial hearing seeking tuition reimbursement for Kildonan for the 2004-05 school year (Joint Ex. 1). Petitioners alleged that that the student had improved and was doing well at Kildonan. Petitioners further alleged that respondent continued to deny that the Kildonan program met the student’s needs and refused to provide a similar program to the student. Petitioners also alleged that respondent continued to “mis-document information about our son” (id.). Respondent received a completed form from petitioners on January 18, 2005 requesting a due process hearing, and a proposed solution that respondent either provide the student with the program he was receiving at Kildonan or reimburse petitioners for tuition at Kildonan (Joint Ex. 2).
The impartial hearing was held on three separate days beginning on February 16, 2005 and concluding on April 11, 2005. The impartial hearing officer’s decision, dated June 24, 2005, found that respondent met its burden of showing that it offered the student an appropriate program for the 2004-05 school year and, therefore, denied petitioners’ claim for reimbursement of tuition at Kildonan for 2004-05 (IHO Decision at pp. 15-16). In doing so, the impartial hearing officer determined that he would not revisit issues decided in the prior hearing and appeal (IHO Decision, p. 10; see Application of a Child with a Disability, Appeal No. 04-093).
The impartial hearing officer found that although petitioners asserted procedural violations in a memorandum of law submitted to him, they did not allege any procedural violations at the hearing (IHO Decision, p. 11). The impartial hearing officer did note concern pertaining to two issues, neither of which he concluded rose to the level of a deprivation of a free appropriate public education (FAPE). First, the impartial hearing officer concluded that petitioners left the May 20, 2004 CSE meeting prior to completion of the IEP and although subsequent changes made to the IEP by the chairperson reflected discussion at the meeting and petitioners’ concerns, it would have been better for the entire CSE to have met to discuss the changes. Second, the impartial hearing officer noted that respondent did not send petitioners the final IEP until August 9, 2004, more than eleven weeks after the CSE meeting. As to his second concern, he was not persuaded by the chairperson’s explanation that continuing work on the goals and objectives justified the delay, but he noted that petitioners had already rejected the proposed IEP, had decided to reenroll the student at Kildonan, and were not prejudiced by the delay (IHO Decision, pp. 11-12). I concur with the impartial hearing officer’s concerns, his conclusion that a FAPE was not denied, and his directive to respondent to take corrective action in the future.
In addition, although noting with respect to the 2004-05 IEP that “the goals and objectives could be more precise,” the impartial hearing officer determined that the 2003-04 IEP, with similar and even identical goals and objectives, had been found appropriate by another impartial hearing officer, which in turn was upheld by the State Review Officer. The impartial hearing officer declined to contradict those findings. He found that petitioners had offered no evidence that the student’s needs had changed since 2003-04 and because of the similarity of the 2004-05 IEP, found that respondent had met its burden of demonstrating that it offered an appropriate program for the 2004-05 school year.
Petitioners argue that the impartial hearing officer's decision should be annulled and tuition reimbursement granted for the 2004-05 school year on the following grounds: 1) their ability to participate in the May 20, 2004 CSE meeting was compromised because at that meeting petitioners were given an “entirely different” draft IEP; 2) the reading goals contained in the IEP developed at the May 20, 2004 CSE meeting were inappropriate for the student; 3) the 2004-05 IEP contains a mischaracterization regarding the student's behavior; 4) the final version of the 2004-05 IEP was substantially different than what was discussed at the May 20, 2004 CSE meeting; and 5) the level of service proposed in the 2004-05 IEP was inadequate to meet the student's needs.
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]).2 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; 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, 32 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 Central School Dist., 346 F.3d 377 at 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 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][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. 04-029; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-109; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
I concur with the impartial hearing officer’s finding that the student’s 2004-05 IEP contains an extensive description of the student’s educational needs that were updated to reflect the student’s experience at Kildonan in 2003-04. At the hearing, respondent’s CSE chairperson testified that the IEP was developed based on interim reports from Kildonan (Tr. pp. 54-70), information from the academic dean of Kildonan who participated in the May 2004 CSE meeting (Joint Ex. 13 at pp. 1-5; Tr. pp. 57-58), May 2004 test results presented at the meeting by petitioners (Tr. pp. 60-61) and conversation with other CSE members (Tr. p. 62). The student's present levels of performance and areas of need were identified by the CSE from interim reports from and testing conducted by Kildonan (Tr. p. 65). The goals and objectives were developed to address the student's needs in the areas of reading, writing, spelling and organization (Tr. p. 70). Reading, writing and spelling goals/objectives were discussed at the May 20, 2004 CSE meeting by respondent’s staff who may have taught the student if he had returned to the district (Tr. pp. 71, 74-75; Joint Ex. 13 at pp. 5-8). According to the CSE chairperson, the study skill goals and objectives were reflective of the student's organization skills as detailed in Kildonan reports (Tr. p. 71). The CSE chairperson credibly testified that the CSE considered information received from Kildonan related to the student’s needs and progress during the 2003-04 school year during the development of the IEP goals and objectives (Tr. pp. 70-82).
On appeal, petitioners claim that the teacher who developed the reading goals did not "rely on anything specific" to the student, therefore, her plan was inappropriate. The teacher who developed the reading goals, and who was present at the May 20, 2004 CSE meeting, is a certified reading specialist with 20 years of experience (Tr. p. 136). She has had 30 hours of multisensory Orton-Gillingham training (Tr. p. 137). She testified that in developing the student's proposed reading goals and objectives, she used interim progress language training reports, test results from Kildonan, and the prior year's IEP (Tr. pp. 140; referring to Joint Exs. 7, 8, 9, 11). The teacher stated it was from the interim reports that she "thought about [the student] as a reader, where he was, what he might need, where he was strong, where he needed some additional practice training" (Tr. p. 141). She further indicated that the goals "seemed to be in line with who [the student] is as a reader, who he was at the time we reviewed them" (Tr. p. 142). The teacher testified that she developed the goals and objectives for decoding and word attack based on the student's needs revealed by the GORT-4 subtests in that the student needed to improve the accuracy of his decoding skills and to become more fluent (Tr. pp. 142-43) and that the process by which that occurs is to break down the reading process into "minute skills" such as the ability to decode prefixes and suffixes (Tr. p. 143). She indicated that the goals and objectives "seemed to be what [the student] needed, and I base[d] that on the test scores." The teacher further stated that the reading comprehension goals and objectives were developed out of the need to teach the meaning of root words, words with multiple meanings and the different strategies used to teach these concepts (id.). She testified that she considered the growth that the student had made when comparing Kildonan test results from December 2003 and May 2004 (Tr. p. 144). The 2004-05 IEP was developed for the student's eighth grade year. Although petitioners contend that reading goals and objectives are based on "what a reader would need in the eighth grade" when the student's test scores showed him to be functioning "many years below the eighth grade level," the teacher who developed these goals testified that she based her goals and objectives, in part, on May 2004 test results of the WRAT-3, which reported his decoding grade equivalent as eight (Tr. p. 140; Joint Ex. 7 at p. 1). Testing revealed that his comprehension and decoding skills were in the average range, however, he exhibited deficits in fluency, accuracy and rate (Joint Ex. 14 at p. 4). The IEP contains objectives that address these needs in addition to objectives targeting improving the student's decoding skills (Joint Ex. at pp. 6-7). Therefore, the record reflects that the teacher who developed the student’s reading goals and objectives appropriately considered the information in her possession about the student when she developed her recommendations for the IEP which resulted in adequate goals and objectives.
Program modifications and testing accommodations for the student were discussed at the May 20, 2004 CSE meeting and were offered based on prior evaluation reports and discussion of the student's needs (Tr. pp. 85-88). The program offered to the student was described as inclusion, with a special education teacher as the "hub" who oversees the classrooms (Tr. p. 67). The special education teacher communicates with the student's reading and writing teachers and teacher assistant. She is in the student's class for language and math, while the teacher assistant is with the student for science and social studies (id.). In addition, the student was offered group (1:5) multisensory reading and (1:10) writing instruction daily (Tr. p. 89).
Petitioners also allege that their ability to fully participate in the development of the IEP was impeded. I disagree. Petitioners allege that the student’s mother was not able to participate in the May 2004 CSE meeting because the draft IEP with which she was provided at the meeting was "entirely different" than a draft IEP previously provided at the April 2004 CSE progress meeting (Joint Ex. 156). In examining the April 2004 draft IEP and the May 2004 draft IEP, while there are differences between the two IEPs, the essential program and placement offered did not change between the two meetings (compare Joint Ex. 156, with Parent Ex. B).
Moreover, the transcript of the May 20, 2004 CSE meeting contained in the record reveals that petitioners, although present, did not participate during the meeting until the end, when the CSE chairperson asked if there were any questions (Joint Ex. 13 at p. 8). At that point, the student’s mother remarked upon the statement, "improvement was seen in not distracting others," in the IEP (Joint Ex. 14 at p. 3). The report from Kildonan reads "He was respectful and considerate during class and did not interrupt or distract others" (Joint Ex. 11 at p. 3). The student’s mother accused the CSE of intending to "mislead, misdocument information" and of misconduct (Joint Ex. 13 at p. 8). The CSE chairperson offered petitioners the opportunity to consult their attorney and petitioners left the meeting (Joint Ex. 13 at pp. 8-9). The CSE then reviewed the student's Kildonan reports and concluded the meeting (Joint Ex. 13 at p. 9). While I find that the aforementioned statement in the IEP did not precisely reflect the Kildonan report and the CSE chairperson could have discussed petitioners’ concerns in this matter before suggesting that petitioners consult their attorney, I do not find it a basis for petitioners to have left the CSE meeting before its end. The record does not reflect that the CSE precluded petitioners from participating during the meeting while they were in attendance nor does it reflect that petitioners were asked to leave at any point during the meeting. Petitioners did not participate and then chose to leave of their own accord. Therefore, I find that petitioners’ own actions precluded their continued participation.
I once again remind the parties that the IDEA requires that "the parents of a child with a disability are expected to be equal participants along with school personnel in developing, reviewing and revising the IEP for their child" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 5; Application of a Child with a Disability, Appeal No. 04-093). The Office of Special Education Programs of the U.S. Education Department has interpreted this provision as follows: "we recognize that the desired consensus among equal participants is not always possible. Where an open discussion does not lead to agreement on the contents of the IEP, the local educational agency has the ultimate responsibility for crafting [an appropriate] IEP. An IEP with which a parent disagrees then forms the basis for a due process hearing" (Letter to Simon, 211 IDELR 436 ; see, e.g., Application of the Bd. of Educ., Appeal No. 98-6).
I agree with the impartial hearing officer that respondent has met its burden of showing that it offered the student an appropriate program for the 2004-05 school year.
Based upon my review of the record, I find that the hearing was conducted in a manner consistent with the requirements of due process and that there is no need to modify the determination of the impartial hearing officer that respondent offered an appropriate program and that, for the reasons stated therein, petitioners are not entitled to tuition expenses (34 C.F.R. § 300.510[b]; N.Y. Educ. Law § 4404). I find the impartial hearing officer’s decision to be thorough and well reasoned in all respects. Therefore, in addition to the discussion above, I adopt the findings of fact and conclusions of law of the impartial hearing officer (see Application of a Child with a Disability, Appeal No. 04-009; Application of a Child with a Disability, Appeal No. 03-084).
Having determined that the challenged IEP was adequate and that respondent has met its burden of proving that it offered to provide a FAPE to the student during the 2004-05 school year, I need not reach the issue of whether or not the private placement was an appropriate placement and the necessary inquiry is at an end (M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134; Application of a Child with a Disability, Appeal No. 03-058).
I have considered petitioners’ remaining contentions and I find them to be without merit.
THE APPEAL IS DISMISSED.
1 On September 24, 2004, an impartial hearing officer denied petitioners’ claim for tuition reimbursement at Kildonan for the 2003-04 school year (Joint Exs. 16, 17 at p. 6). On December 8, 2004, I dismissed petitioners’ appeal of the impartial hearing officer’s September 24, 2004 decision (Application of a Child with a Disability, Appeal No. 04-093; Joint Ex. 17). Petitioners have sought review of Application of a Child with a Disability, Appeal No. 04-093, in federal court (Tr. p. 194).
2 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.