05-091

            Petitioners appeal from that part of the decision of an impartial hearing officer which, based on equitable considerations, denied their request for reimbursement for their son's tuition costs at the Kildonan School (Kildonan) for the 2004-05 school year.  The Board of Education of the Pawling Central School District cross-appeals from the impartial hearing officer's determination that it had failed to demonstrate that it had offered to provide an appropriate educational program to the student for that year, and his determination that Kildonan offered an appropriate program.  Respondent also seeks in its cross-appeal recoupment of tuition expenses paid by respondent to petitioners during the pendency of the proceedings.  The appeal must be dismissed.  The cross-appeal must be sustained in part.

             At the time of the request for a hearing on January 5, 2005 (Dist. Ex. 16), petitioners' son was 12 years old, and in the seventh grade at Kildonan (Tr. p. 744; see Dist. Ex. 6).  Kildonan is a private school for children with language-based learning disabilities, including disabilities in reading identified as dyslexia (Parent Ex. 4; Tr. pp. 742, 750, 787).  Kildonan is accredited by the New York State Board of Regents (Parent Ex. 5 at p. 17; Tr. pp. 743, 781-83), but has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (Tr. p. 784; see 8 NYCRR 200.7). 

              The student attended various public and private schools for his elementary education and was attending fourth grade in a private school when petitioners first referred him to respondent's committee on special education (CSE) for evaluation in February 2002 (see Dist. Ex. 8; Tr. pp. 1056, 1063-65).  The student had been diagnosed as having an attention deficit hyperactivity disorder (ADHD), for which he is prescribed medication (id.).  Administration of the Wechsler Intelligence Scale for Children – Third Edition (WISC-III) in 1999 yielded a verbal IQ score of 105, a performance IQ score of 116 and a full scale IQ score of 111, suggesting cognitive ability in the high average range (Parent Ex. Y at p. 2). The evaluator who performed the WISC-III reportedly indicated that the student's performance score was inflated by a high score on one subtest, and opined that the student functioned in the high end of the average range of cognitive ability (id.).  The student has a history of difficulty with reading decoding and fluency.  An April 2004 evaluation of the student included administration of the Wechsler Individual Achievement Test – II (WIAT-II), on which the student's standard (and percentile) subtest scores of 90 (25) in word reading and 94 (34) in pseudoword decoding were in the average range (Dist. Ex. 10 at p. 1).  The evaluator reported that during testing, the student exhibited difficulty reading vowel sounds in the middle of words, transposed syllables, and "in general, struggled to attend to the details of reading" but that his reading comprehension was adequate, as reflected by his standard (and percentile) score of 98 (45) on the reading comprehension subtest of the WIAT-II (id.)  The student's scores of 78 (7) in spelling and 89 (23) in written expression on the WIAT-II reflect deficits in these two areas (id.).  His math scores on both math subtests of the WIAT were in the high average range, as was his score of 113 (81) on the listening comprehension subtest (id.).

          An individualized education program (IEP) was developed by respondent in June 2002 for the student's fifth grade 2002-03 school year which classified him as a student with a disability (other health impaired; see 8 NYCRR 200.1[zz][10]) and provided special education services, including 15:1 special education classes in all academic subjects, a special 5:1 daily reading class, 15:1 resource room services once per day, and small group counseling once per week (see Parent Ex. 9).  The IEP also included assistive technology, testing accommodations and program modifications (Parent Ex. 9).  Petitioners rejected the recommended program and requested an individual educational evaluation (IEE); respondent agreed to pay for the evaluation (Parent Ex. 9 at p. 5; see Dist. Ex. 9).  Petitioners enrolled their son in fifth grade at Kildonan for the 2002-03 school year (Tr. p. 744).  The IEE was completed in September 2002 (Dist. Ex. 9).  In November 2002 the CSE reconvened to consider the results of the IEE, but no changes were made to the student's IEP (Parent Ex. 9 at p. 5).  A copy of the IEP was sent to the parents, who, despite notification, did not attend the meeting (id.).  The student remained at Kildonan for the 2002-03 school year (see Dist. Ex. 13).  In July and August 2003 petitioners contacted respondent about the student's program for the following school year, but were informed that no new IEP had been developed for the 2003-04 school year, and reportedly were told that a CSE meeting could not be held in August because there were not enough staff members available (Dist. Ex. 1 at p. 5, 10, 21-22, 25; see Tr. p. 575).¹  There is some indication that a draft 2003-04 IEP was started, but never completed, allegedly in part due to the parents' unwillingness to meet with the CSE (Dist. Ex. 1 at pp. 10, 22; Tr. p. 575).  Petitioners reenrolled their son at Kildonan in the sixth grade for the 2003-04 school year (Dist. Ex. 26; see Tr. p. 746), and in December 2003 requested an impartial hearing seeking tuition reimbursement (see Dist. Ex. 1 at p. 5).  An impartial hearing (Hearing 1) was held on the 2002-03 and 2003-04 school years over the course of several nonconsecutive days in Spring/Summer 2004 (see Dist. Ex. 1).  

            While Hearing 1 was in progress, on April 30 and June 23, 2004 the subcommittee on special education² convened and developed an IEP for the student's seventh grade 2004-05 school year (Dist. Exs. 4, 6).  After reviewing the results of various evaluations and progress reports, the subcommittee recommended classification as a student with a learning disability (LD) (8 NYCRR 200.1[zz][6]) (Dist. Ex. 6 at p. 1) and identified needs in reading, writing and spelling (id. at p. 3).  The subcommittee noted that reports from Kildonan indicated that occasionally the student was easily distracted, had difficulty following directions and paying attention, and was more likely to be successful in structured settings, and concluded that he needed cuing, refocusing, redirection and encouragement in core subject areas (id.).  The subcommittee also noted that the student required instruction using multisensory teaching strategies (id. at p. 4). Strengths were noted in math and listening comprehension (id. at p. 3).  ).  The subcommittee classified the student as a student with a learning disability (8 NYCRR 200.1[zz][6]), and the subcommittee recommended that the student be enrolled in 15:1 special education classes for English, Science and Social Studies, for 42 minutes each per day (id. at p. 1).  The subcommittee also recommended the student be placed in a 1:1 specialized reading class for 42 minutes per day to provide individual attention to address his reading and writing weaknesses (id.).  On the student's IEP, the subcommittee indicated testing accommodations which included extended time, flexible scheduling, location with reduced distractions, and waiver of spelling requirements (id. at p. 2).  For program modifications, the subcommittee indicated on the IEP that the student required refocusing and redirection, reteaching, clarification of rules and instructions, preferential seating, simplified vocabulary, books on tape and supplemental visual aids to maintain focus (id.).  Assistive technology was provided for on the IEP in the form of access to a computer and an Alpha Smart (id.).  IEP goals and objectives were developed to address study skills, reading, writing, and fluency (id. at pp. 2-3).

           A copy of the 2004-05 IEP was sent to the parents on August 5, 2005 (Dist. Ex. 6).  On August 21, 2005 petitioners informed respondent by letter that they were rejecting the 2004-05 IEP, stating that they were reenrolling their son at Kildonan in seventh grade for the 2004-05 school year and awaiting the impartial hearing officer's decision pertaining to the 2003-04 school year (Dist. Ex. 12).  The letter did not request an impartial hearing regarding the 2004-05 IEP (id.).  A decision on the 2003-04 school year was rendered four days later, on August 25, 2004 (Dist. Ex. 1).  The impartial hearing officer in Hearing 1 found that petitioners' claims for the 2002-03 school year were barred by the applicable statute of limitations (Dist. Ex. 1 at p. 24).  As to the 2003-04 school year, the impartial hearing officer found that, by failing to prepare an IEP for that school year, respondent failed to provide a free appropriate public education (FAPE) to petitioners' son, found that Kildonan did offer an appropriate placement for petitioners' son for that year, and so ordered  respondent to reimburse petitioners for the cost of their son's tuition at Kildonan for the 2003-04 school year (Dist. Ex. 1 at p. 28).

            Petitioners' son continued to attend Kildonan for the 2004-05 school year (see Dist. Ex. 26; Parent Ex. 12).  Letters from petitioners to respondent in October and December 2004 indicate that petitioners appeared to be of the belief that respondent was required to pay for their son's tuition at Kildonan for the 2004-05 school year, based on the favorable outcome of Hearing 1 (Parent Exs. 8, 10; Dist. Ex. 17; see also Tr.  pp. 427, 467-68, 475,-80, 499-500).  On January 5, 2005 petitioners wrote to respondent specifically requesting an impartial hearing on the 2004-05 school year, seeking tuition reimbursement (Dist. Ex. 16).  The hearing on the 2004-05 school year (Hearing 2) commenced on March 23, 2005 and concluded on June 21, 2005.  The impartial hearing officer rendered an interim pendency ruling on April 28, 2005, finding that, based on the prior unappealed decision in Hearing 1, that Kildonan was the student's pendency placement for purposes of Hearing 2, and ordered respondent to pay tuition costs for petitioners' son at Kildonan from the date of the request for Hearing 2 (January 5, 2005) through the duration of the proceedings (IHO Exhibit 1).  Respondent thereafter submitted payment to petitioners for the student's tuition at Kildonan for that time period totaling $16,481.01 (Ans./Cross-Appeal Ex. B). 

           The impartial hearing officer in Hearing 2 rendered a final decision on the 2004-05 school year on July 29, 2005, finding that respondent failed to offer petitioners' son an appropriate program and that Kildonan had offered an appropriate program, but nevertheless denied petitioners' request for an award of tuition reimbursement based on equitable considerations.  Petitioners appeal, contending that the impartial hearing officer erred by refusing to grant them an award of tuition reimbursement based solely on his belief that petitioners never intended to enroll their son in respondent's public school.  Respondent cross-appeals, seeking an annulment of that part of the impartial hearing officer's decision that found that respondent failed to offer an appropriate program and found that Kildonan did offer an appropriate program for the 2004-05 school year.  In the event the State Review Officer finds that the district did offer an appropriate program to petitioners' son for the 2004-05 school year, respondent also seeks a determination that petitioners were "unjustly enriched" by the $16,481.01 pendency award, and request an order directing petitioners to reimburse respondent for those costs (Ans./Cross-Appeal at p. 10).

        The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487)³ is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]).  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written individualized education program (IEP) (20 U.S.C. § 1401[8][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).⁴ A board of education may be required to reimburse parents for their expenditures for private special educational services obtained for a student by his or her parent, if the services offered by the board of education were 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, 370 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., F.3d , 2005 WL 2381962, at *5 [2d Cir. Sept. 28, 2005]). 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 (Carter, 510 U.S. at 14). 

         The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 [2d Cir. 2003]; M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 05-032).  To meet its burden of showing that it had offered to a provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v Rowley, 458 U.S. 176, 206, 207 [1982]). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

          While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim, 346 F.3d at 381).  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]).  A denial of FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student (see Evans v Bd. of Educ., 930 F.Supp.83, 93-94 [S.D.N.Y. 1996]), or seriously infringe on the parents' opportunity to participate in the IEP formulation process (see, Werner v. Clarkstown Cent. Sch. Dist., 363 F.Supp.2d 656, 659 [S.D.N.Y. 2005];  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 compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D. K., 2002 WL31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, 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]).  To do this, the record must be examined for “any objective evidence indicating whether the child is likely to make progress or regress under the proposed plan” (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 383 [2d Cir. 2003] [citation and internal quotation omitted]; 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).

          In the instant case, the impartial hearing officer found that the 2004-05 IEP was both procedurally and substantively inadequate in offering a FAPE to the student.  He based this conclusion on five findings: (1) improper subcommittee composition, (2) inadequate prior evaluation of the student, (3) inadequate descriptions of the student's present levels of performance, (4) lack of a functional behavioral assessment (FBA), and (5) inadequate goals and objectives.  The record reveals that the impartial hearing officer was incorrect in his conclusions concerning the student's IEP.

          The impartial hearing officer found that the subcommittee that developed the student's 2004-05 IEP was improperly composed because it did not include an additional parent member nor a representative from Kildonan. Federal law does not require an additional parent member be part of a CSE   (see 20 U.S.C. § 1414[d][1][B]; 34 C.F.R. § 300.344[a]).  Although New York State law and regulations do require an additional parent member to be part of a full CSE  (N.Y. Educ. Law § 4402[b][1][a][viii]; 8 NYCRR 200.3[a][1][viii]), they do not require such a member to be part of a subcommittee meeting (see N.Y. Educ. Law § 4402[1][b][1][d]; 8 NYCRR 200.3[c][2]). Contrary to the impartial hearing officer's finding, the June 23, 2004 meeting that formulated the student's 2004-05 IEP was not a meeting for an initial placement; the student's initial placement had been developed in the meeting that produced the student's 2002-03 IEP.  Because it was not a meeting for an initial placement, but for an annual review, a full CSE was not required (see N.Y. Educ. Law § 4402[1][b][1][d]; 8 NYCRR 200.3[c][4]), therefore the meeting was properly convened as a subcommittee meeting. Since the June 23, 2004 meeting was a subcommittee meeting, no additional parent member was required (see 8 NYCRR 200.3[c][2]).

            A representative from Kildonan was not a required to attend the June meeting, regardless of whether or not it was a CSE or subcommittee meeting.  Federal law does not require that a representative from the private school be part of the CSE  (see 20 U.S.C. § 1414[d][1][B]; 34 C.F.R. § 300.344[a]).  New York State regulations require that if a recommendation is that a student be placed in a school operated by an agency or school other than the school district in which the student would normally attend if the student did not have a disability or if the education of a student residing in a facility operated or supervised by a State department or agency is the responsibility of the school district, the school district must ensure that a representative of that agency or school attends the CSE meeting (8 NYCRR 200.4[d][4][i][a]).  Here, respondent was recommending that the student be placed in the district's public school, hence no member of Kildonan was required to be present at the June 23, 2004 meeting.  Thus, the June 23, 2004 subcommittee was properly composed under both state and federal regulations (see Application of a Child with a Disability, Appeal No. 05-095).  Notably, even though a representative from the private school was not required to be at the subcommittee meeting, respondent made efforts to gather substantial input from Kildonan in preparing the student's IEP.  The subcommittee sent a draft IEP to the parent over a month in advance and specifically asked the parent to share the proposed plan with staff at Kildonan and requested their input in developing the student's program (see Dist. Ex. 4 at pp. 1, 6; Tr. pp. Tr. pp. 263-64, 341-42).  Petitioners testified that the student's mother did review the draft IEP with Kildonan staff, and brought a lot of that information to the June 2004 subcommittee meeting (Tr. pp. 1076-77, 1085).  Respondent also made attempts to have the academic dean of Kildonan attend a subcommittee meeting in May 2004 (Tr. pp.  342; see Dist. Ex. 4 at p. 6), but the parent canceled the meeting (Tr. p. 342).  In addition, in formulating its recommended program respondent also sought out and considered information about the student's performance at Kildonan by reviewing numerous teacher records and test results of the student while he was at Kildonan for the 2002-03 and 2003-04 school years (Tr. pp. 335-36, 543-44), and by having respondent's school psychologist conduct a classroom observation of the student at Kildonan in May 2004 (Tr. pp. 341, 344; see Dist. Ex. 11), all of which were used as data in developing the student's 2004-05 IEP (see Dist. Ex. 6).  

          Next, the impartial hearing officer found that the subcommittee failed to properly evaluate the student or establish his present levels of performance.  State and federal regulations require that the student be assessed in all areas related to the suspected disability (20 U.S.C. § 1414[b][3][C]; 34 C.F.R. § 300.532[g]; 8 NYCRR 200.4[b][3]).  An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]).  School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).

           Under state regulations, the initial evaluation of a student with a disability must include a physical examination, a psychological evaluation, a social history, a classroom observation, and other appropriate assessments "including a functional behavioral assessment for a student whose behavior impedes his or her learning or that of others" (8 NYCRR 200.4[b][1]). Subsequent annual reviews of the student's program must consider the educational progress and achievement of the student and the student's ability to participate in regular education classes (N.Y. Educ. Law § 4402[1][b][2]; 8 NYCRR 200.4[f][1][i]; see 34 C.F.R. § 300.343[c]).  The annual review must also examine the student's last IEP and consider current information relating to the student's performance, including the strengths of the student, the concerns and input from the parents, the results of the initial or most recent evaluations of the student, the results of any standardized tests administered to the student, and any special factors including behavioral or assistive technology needs (8 NYCRR 200.4[f][1][i]; see 34 C.F.R. § 300.346[a], [b]).  In an annual review, the CSE or subcommittee must revise the IEP as appropriate to address any lack of expected progress in the general curriculum, and include the results of any reevaluation, any information provided by the parents, the student's anticipated needs, and other matters including the need for any additional test accommodations or program modifications (8 NYCRR 200.4[f][1][ii]; see 34 C.F.R. § 300.343[c]).  A reevaluation must be conducted if conditions warrant it, or the student's parent or teacher requests it, but at least once every three years (20 U.S.C. § 1414[a][2][A]; 34 C.F.R. § 300.536; 8 NYCRR 200.4[b][4]).  Any reevaluation must include a review of "existing evaluative data on the child, including evaluations and information provided by the parents of the child, current classroom-based assessments and observations, and teacher and related services providers observation; and …input from the child's parents" (20 U.S.C. § 1414[c][1][A], [B]; see 34 C.F.R. § 300.533[a]; 8 NYCRR 200.4[b][5]). 

           The record reveals that in developing the 2004-05 IEP in June 2004, the subcommittee relied on a variety of evaluations, including review of a physical examination (6/18/01), social history (2/19/02), speech-language evaluation (2/19/02), prior psychological evaluation and observation report (3/7/02) (Dist. Ex. 8), the independent psycho-educational evaluation obtained by the parents (9/5/02) (Dist. Ex. 9), results from standardized testing at Kildonan from 2002-03 (Dist. Ex. 13 at p. 9), a prior educational evaluation (11/01/03), Kildonan teacher reports from 2003 (Dist. Ex. 13; Tr. pp. 543, 1076), as well as the student's 2002-03 IEP (Tr. p. 578).  The subcommittee examined the results of additional data, including a new educational evaluation conducted by respondent in April 2004 (Dist. Ex. 10), new Kildonan teacher reports from 2003-04 (2/24/04) (Dist. Ex. 26), the student's recent Kildonan report card for 2003-04 (4/21/04) (Dist. Ex. 26 at p. 6), parent reports (see Tr. pp. 343-44), and a recent Kildonan classroom observation performed in May 2004 by respondent's school psychologist (Dist. Ex. 11) (see Dist. Ex. 6, IEP at p. 5; Tr. pp. 275-77, 335-36, 339-40, 648).  The recent psychological testing reviewed by the subcommittee included results from such standardized tests as the WIAT-II administered in 2004, the Gates-McGinitie Reading Tests 4  the Gray Oral Reading Test – Fourth Edition (GORT-4), the Stanford Diagnostic Math Test, and the Wide Range Achievement Test-III (WRAT-III)all administered at Kildonan in May 2003 (see Dist. Ex. 6, IEP at p. 3; Dist. Ex. 10; Dist Ex. 13 at p. 9).  In addition, the subcommittee chairperson testified that the subcommittee considered the results of the Conners' Rating Scales (Dist. Ex. 4, IEP at p. 5; Tr. p. 340), an instrument which measures behavioral indicators related to the probability of ADHD; as well as parental input regarding the student's behavior, including the parents' report that a recent medication change had successfully tempered the student's behaviors related to his ADHD (Tr. pp. 348, 354, 581; Dist. Ex. 6, IEP at p. 4).  Contrary to the impartial hearing officer's finding, the subcommittee reviewed a comprehensive array of past and current evaluative data from a variety of sources, representative of all areas of his suspected disability, in compliance with both state and federal regulations.⁵  

          Results of the evaluations provided a great deal of information about the student, cognitively, behaviorally, academically, and socially.  Results of the WIAT-II administered two months before the IEP was developed provided standardized scores identifying the student's academic strengths and needs, and was supplemented by evaluator comments describing the student's difficulty with vowel sounds, his tendency to transpose syllables, and his strategy of reviewing text to assist his reading comprehension (Dist. Ex. 10 at p. 1).  The evaluator described the student's encoding abilities as "inadequate," noting that his standard score of 78 on the spelling subtest of the WIAT-II was in the "Borderline Deficient" range, and that the student relied on a purely phonetic strategy to spell (id.).  Progress reports and standardized test results from Kildonan indicated that the student continues to exhibit deficits in reading fluency, word identification, spelling and writing (Dist. Ex. 13 at p. 9).  Academically, the student’s report cards and teacher comments from Kildonan revealed that the student was performing satisfactorily in all of his subjects during the 2003-04 school year, although his one-to-one language tutor reported inconsistent performance on assignments, noting that the student often did the minimum amount of work required on his assignments (Dist. Ex. 26).  A February 2004 interim progress report from Kildonan indicated that the student encountered difficulty during the 2003-04 school year due to social distractions with peers and, in some classes, inconsistent quality in his assignments (Dist Ex. 26).  The student was described by teachers in both 2002-03 and 2003-04 as very capable, but distractible and needing to be refocused (see Dist. Ex. 26; Dist. Ex. 13).  However, the student's parents, the academic dean of Kildonan, the private psychologist and the school psychologist all agreed that a recent medication change now appeared to be successfully controlling many of the student's ADHD symptoms (see Dist. Ex. 6, IEP at p. 4, Tr. pp. 803-04, Dist. Ex. 9 at p. 3; Dist. Ex. 11).   Socially, the student's teachers described him as enthusiastic and well liked by his classmates (Dist. Ex. 13, at pp. 1, 5), but noted that he sometimes lacked confidence (Dist. Ex. 26 at pp. 1,  3).

          Based on these evaluations and progress reports, the student’s  present levels of academic performance were indicated on the IEP as follows: "[The student]'s  cognitive abilities are in the high average range.  [He] evinces a significant discrepancy between ability and achievement. His learning disability and ADHD impede his learning. [He] exhibits learning difficulties in reading, writing and spelling.  According to Kildonan reports from time to time, [he] becomes distracted and has difficulties following direction and paying attention. [He] tends to find success in more structured activities" (Dist. Ex. 6, IEP at p. 3).  The IEP includes a statement reflecting parent input regarding the positive effect of medication on the student's attentional difficulties, and notes the student's mother's report that recent medication adjustments had a positive effect on her son's classroom performance (id.  at p. 4).  The IEP also identifies the student's academic strength in math, supporting this description with recent standardized test results, which are included on the IEP (id.).  The IEP also includes results of standardized tests administered at Kildonan, as well as descriptions of how the student's variable performance in class and achievement measures appear to be related to his difficulties in focusing and attending to the task at a hand, reflecting teacher comments from 2003 and 2004 Kildonan progress reports (id.).  To supplement test scores and teacher remarks, the IEP from quotes directly from the most recent psychological evaluation, (4/24/04) which found that "'[The student] relies on purley phonetic strategy to spell.  [His] ability to write and combine sentences is more developed than his spelling, but is negatively impacted by his encoding deficit (id.)… He can adequately comprehend longer sentences and short passages, but his word reading weakness will probably impact his ability to comprehend longer reading assignments.  [He] has mastered basic writing mechanics, but his poor spelling impacts his ability to express himself in a written format. Listening comprehension is well developed'" (Dist. Ex. 6, IEP at p. 3, quoting from Dist. Ex. 10 at pp. 1-2).  Breakdowns of standardized test scores with subsets obtained two months prior to the final IEP were included in the IEP, providing present scores for the student in word reading, comprehension, pseudoword decoding, numerical operations, math reasoning, listening comprehension, spelling and written expression (Dist. Ex. 6, IEP at p. 3).  Contrary to the impartial hearing officer's conclusion, the descriptions of the student's present levels of performance on the IEP flow from and are directly tied to recent parent and teacher reports, observations, grades, and standardized test results, and accurately reflect the student's current strengths and weaknesses.

           The impartial hearing officer also found that respondent erred in not conducting a functional behavioral assessment (FBA) as a required evaluation of the student.  As noted previously, the regulations provide that an FBA is required "for a student whose behavior impedes his or her learning or that of others" (8 NYCRR 200.4[b][1][v]). In the instant case, when the subcommittee first met to begin drafting the 2004-05 IEP on the student in April 2004, the parents informed the subcommittee that the student's distractibility related to his ADHD had been successfully controlled with a recent medication change (see Dist. Ex. 6, IEP at p. 4; Tr. pp. 348, 354, 581).  Nevertheless, the subcommittee sent respondent's school psychologist to Kildonan in April 2004 to observe the student in class to determine if an FBA was warranted (Dist. Ex. 4, IEP at p. 5).  The school psychologist reported that the student's observed behaviors in class appeared typical of other students in the class and of his age in general, i.e., tapping a pencil, shifting positions, and tilting back in his chair (Dist. Ex. 11). She reported that "his behaviors were not at all disruptive, excessive, unusual or distracting to others," that petitioners' son demonstrated an excellent grasp of course material and answered questions correctly and volunteered alternate methods of solving problems (id.).  She reported that she did not observe any behaviors that would warrant an FBA, and in fact noticed that the student demonstrated excellent memory, reasoning, and expressive language skills during the lesson, consistent with teacher reports (id.).  The same school psychologist testified that after her observation she reviewed the student's entire file, including his prior psychological evaluations and Kildonan reports and nothing she reviewed in the student's records indicated that his behaviors interfered with his learning or that of others to a degree which would require an FBA (Tr. pp. 641-42, 646, 648-650).  In the only prior classroom observation conducted in March 2002, the evaluator noted that petitioners' son appeared to be less relaxed and more reserved than other children, but reported he "does not impress as a hyperactive child.  He appeared able to remain on task for all but one occasion during the hour and a quarter observation" (Dist. Ex. 8 at p. 4).  In the 2002 IEE conducted by the psychologist selected by the parents, results of the Conners' Continuous Performance Test-2 indicated that, at that time, the student's scores "within normal limits for a child of his age" suggesting that his current medication was having the desired effect  (Dist. Ex. 9 at p. 3).  The academic dean of Kildonan testified at the hearing that other than some frustration in class or talking to other students, petitioners' son exhibited no behaviors that had any real impact on his academic performance (Tr. pp. 803-04).  The subcommittee considered and discussed the possible need for an FBA, and also discussed the student's rating on the Conners' Rating Scales, at the June 2004 meeting, and all members unanimously agreed that no FBA was necessary at that time (Tr. pp. 340, 344-45; Dist. Ex. 6, IEP at p. 5).

           Based on the record, respondent fulfilled its responsibility for properly evaluating the student in all areas of his disability and accurately indicating on the IEP the student's present levels of performance (see Application of the Bd. of Educ., Appeal No. 05-058; Application of a Child with a Disability, Appeal No. 03-041; compare Application of a Child with a Disability, Appeal No. 05-062; Application of a Child with a Disability, Appeal No. 05-010). 

           An IEP must also include a statement of the special education and related services and supplementary aids and services to be provided to or on behalf of the student, as well as a statement of the program modifications or supports for school personnel that will be provided to the student (34 C.F.R. § 300.347[a][3]; see 8 NYCRR 200.4[d][2][iv]).  Such education, services and aids must be sufficient to allow the student to advance appropriately toward attaining his or her annual goals (34 C.F.R. § 300.347[a][3][i]; see 8 NYCRR 200.4[d][2][iv][a]).  Such educational services must also comport with the IDEA's strong preference that, to the maximum extent appropriate, children with disabilities be educated in regular classes with their nondisabled peers with appropriate supplementary aids and services (Walczak, 142 F.3d at 122; see 20 U.S.C. §1412[a][5]; 34 C.F.R. 300.550[b]; 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 1). 

          In the instant case, the subcommittee considered the standardized test results and Kildonan reports showing that the student was weak in reading fluency, writing, and spelling, and needed intensive multisensory instruction in reading. Under the student's current program at Kildonan, he was receiving a daily 1:1 language training tutorial class in reading and writing which employed an Orton-Gillingham program with multisensory methods of instruction and attended content area courses which provided multisensory instruction emphasizing hands-on projects  (Tr. pp. 745-46, 781, 753, 755-56).  Respondent’s latest psychological evaluation of the student indicated that he required individualized daily reading and writing instruction to improve word reading and his ability to complete longer reading assignments (Dist. Ex. 10). The subcommittee recommended that for the 2004-05 school year the student be placed in an individual daily reading class where he would receive 42 minutes per day of intensive 1:1 multisensory instruction in reading taught by a special education or reading instructor who was familiar with multisensory teaching strategies and with Orton-Gillingham programs (Dist. Ex. 6 IEP at pp. 1, 4; Tr. pp. 520-21, 549, 1160-61, 1176, 1185).  The reading class would have addressed the student's identified areas of weakness in fluency, word identification, and spelling, and would have provided support for content area courses (Tr. p. 350).  To further compensate for his difficulties in reading and writing, the student was also placed in small 15:1 non-integrated special education classes for English and Social Studies, both of which required a significant amount of reading and writing, where a special education teacher would provide direct instruction (Dist. Ex. 6, IEP at pp. 1, 2; Tr. pp. 356, 525, 1172, 1209-10).  The student's special education teacher had received training in implementation of Orton-Gillingham and other multisensory reading programs (Tr. pp. 523, 781, 1150-51). 

            For Science, which involved less reading and writing, the student was still to be placed in a 15:1 class to ensure individual attention, but the class was to be in an integrated setting, consisting of both regular and special education students, staffed by a regular education teacher and a teaching assistant who would work under the direction of a special education teacher, responsible for ensuring that the curriculum was presented in a manner responsive to the student's needs (Dist. Ex. 6 IEP at p. 1; Tr. pp. 356, 525, 1168, 1169-71, 1181, 1210-12).  Since math was a strength for the student and required little or no reading, he was to be placed in a regular education mainstream math class, and respondent offered to have the student tested over the summer to see if he qualified for placement in an advanced math class (Tr. pp. 349-50, 1147, 1097). Respondent's director of special education testified that there would have been constant contact between the student's reading teacher and his special education teacher, and communication with the student's regular education teachers concerning approaches used in meeting the student's needs (Tr. pp. 1152, 351-52). The subcommittee further recommended that the student be exempt from the foreign language requirement, due to the nature of his disability (Dist. Ex. 6, IEP at p. 1). 

           In addition, throughout the IEP, directions were given for the student's instructors to provide refocusing, redirection, cuing, and preferential seating to meet the student's special attentional needs and compensate for his distractibility (Dist. Ex. 6, IEP at pp. 2, 4).  Program modifications specific to the student's special needs throughout the school day included reteaching, providing clear instructions and simplified vocabulary, use of cuing to keep the student on task, availability of books on tape, and access to a computer and an Alpha Smart (Dist. Ex. 6, IEP at p. 2). Testing accommodations were also included in the IEP to compensate for the student's distractibility and learning deficits, and provided for flexible scheduling, extended time to complete tests, a separate testing location with minimal distractions, instructions clarified, and spelling requirements waived (Dist. Ex. 6, IEP at p. 2).  Additionally, since the student would have been transferring into respondent's district from a private school program, the subcommittee directed that it would reconvene after the student had attended in respondent's program for 30 days in order to review petitioners' son's progress in respondent's program and to make any necessary adjustments (Dist. Ex. 6, IEP at p. 5; Tr. pp. 355, 1212-13).  The IEP developed in June 2004 reflects careful consideration of the student's unique individual needs and recommended placement in an array of classes that would have provided the necessary level of support for each subject, while maximizing opportunities for mainstreaming, and also provided an array of appropriate program modifications and test accommodations directly related to the student's needs to allow petitioners' son to advance in the general curriculum in the least restrictive environment. 

            An IEP must also include measurable annual goals, including benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a][2]; see 8 NYCRR 200.4[d][2][iii]).  In addition, an IEP must describe how the student's progress towards the annual goals will be measured and how the student's parents will be regularly informed of such progress (34 C.F.R. § 300.347[a][7]; 8 NYCRR 200.4[d][2][x]). 

            In the instant case, goals and objectives on the student's 2004-05 IEP were grouped in the areas of study skills, reading, fluency, and writing (Dist. Ex. 6, IEP at pp. 5-6).  As previously noted, these areas are directly reflective of the student's needs as derived from evaluative data (see Dist. Exs. 9, 10, 13), and also reflect testimony from the academic dean of Kildonan (Tr. pp. 760-61, 796), the school psychologist who evaluated and observed the student (Tr. pp. 664, 690), and respondent's director of special education (Tr. pp. 352-53). The student's father testified that the parents agreed with most of the June 2004 subcommittee's recommendations regarding the nature of their son’s needs (Tr. pp. 1072-73).  Although the goals are somewhat generally stated, the objectives for each goal include sufficient specificity to allow for development of a program of instruction and include methods by which progress was to be measured (Dist. Ex. 6 at pp. 5-6).  Goals for reading decoding, study skills and writing indicate performance consistent within a seventh grade curriculum (id.).  Objectives include behavioral descriptions of expected outcomes.  In study skills, objectives state that the student will record assignments in his assignment book, work with the teacher to develop a timeline for assignments and complete assignments in accordance with the timelines (id.).  Reading decoding and vocabulary objectives require that the students identify letter and digraph sounds, identify and define root words in content area vocabulary, spell dictated words and identify suffixes (id.). Written language objectives outline a strategy in which the student would use writing assignments in content area courses to identify ideas, organize and develop paragraphs and edit his work (id.).  Reading fluency passages specify use of a multisensory program to gradually increase reading rate by one grade level (id.)   IEP objectives specify assessment of progress using means such as daily and weekly charts and checklists, teacher observation of the student's daily planner, scoring of daily assignments to determine proficiency with vocabulary, and review of weekly writing assignments in language arts and social studies (id.)  To monitor the student's progress in reading fluency, a running record was to be used to chart the student's rate of words read per minute (id.)   Examination of IEP objectives addressing each goal included in the June 2004 IEP reveals that the objectives provide specific behavioral and measurable descriptions of what the student was expected to accomplish over the course of the school year.  The IEP document in its entirety provides specific current information about the student's present performance levels, which could be used to ensure that goals and objectives would be implemented at a level commensurate with the student's current needs.   Reading the IEP as a whole, the goals, when read together with the objectives, are not vague but instead list adequate measurable criteria that satisfy the requirements of IDEA and sets forth the evaluation procedures to be used to measure progress for each objective (Dist. Ex. 6, IEP at pp. 5-6).  

            In conclusion, the 2004-05 IEP developed by the CSE accurately reflected the results of evaluations which identified the student's needs, established annual goals and short-term instructional objectives related to those needs, and provided for appropriate special education services in the LRE.  The IEP was reasonably calculated to confer educational benefits to the student by addressing his individual strengths and weaknesses, and developing a detailed program which would allow him to progress in the general curriculum with appropriate supports and services.  Having determined that the challenged IEP was appropriate, respondent has met its burden of proving that it had offered to provide a FAPE to the student during the 2004-05 school year, and I need not reach the issue of whether or not Kildonan was an appropriate placement, or whether equities would have barred petitioners from an award of tuition reimbursement; petitioners are not entitled to tuition expenses, and the necessary inquiry is at an end (Mrs. 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. 05-038; Application of a Child with a Disability, Appeal No. 03-058).

            As for respondent's cross-claim requesting that petitioners reimburse the district for payments that were made by respondent to petitioners from January 2005 through July 2005 totaling $16,481.01 under the impartial hearing officer's prior unappealed pendency order, I find that respondent has failed to cite to a single statute, regulation, or administrative or court decision which suggests that reimbursement to respondent for tuition payments made under the pendency provisions of the IDEA would be an appropriate remedy here.  Although this issue appears to be one of first impression in this circuit, two federal districts courts in New York have recently alluded in dicta to the fact that if this scenario ever presented itself, it would be unlikely that a district could recoup such payments (see  Bd. of Educ. v. Schutz, 137 F.Supp.2d 83, 92 n.15 [N.D.N.Y. 2001], aff'd, 290 F.3d 476 [2d Cir. 2002], cert. denied, 537 U.S. 1227 [2003]; Murphy v. Arlington Cent. Sch. Dist., 86 F.Supp.2d 354, 367 n.9 [S.D.N.Y. 2000], aff'd 297 F.3d 195 [2d Cir. 2002]).  After a review of case law from other circuits rejecting the idea of recoupment, the Court in Schutznoted "Accordingly, it appears as though the tuition payments made by the District during the pendency of [the proceedings] may not be subject to recoupment from [the parents], and no opinion is offered as to the manner in which this burden might be allocated between the District and the State" (Schutz, 137 F.Supp.2d at n.15 [J. Hurd]).  Given these circumstances, I decline to order petitioners to reimburse the district for costs incurred by respondent in maintaining the student's pendency placement, an expense it was required to pay in order to comply with the pendency provisions of state and federal law (see Murphy v. Arlington Cent Sch. Dist., 297 F.3d 195 [2d Cir. 2002]; Bd. of Educ. v. Schutz, 290 F.3d 476 [2d Cir. 2002], cert. denied, 537 U.S. 1227 [2003]; see also 20 U.S.C. § 1415[j]; 34 C.F.R. § 300.514; N.Y. Educ. Law § 4404[4]; 8 NYCRR 200.5[l]). 

              I have considered petitioners' and respondent's remaining contentions and I find them to be without merit.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's decision is hereby annulled.