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 Rye Neck Union Free School District
Neal H. Rosenberg, Esq., attorney for petitioner
Shaw & Perelson, LLP, attorney for respondent, Marc E. Sharff, 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 Windward School (Windward) for the 2004-05 school year. The appeal must be dismissed.
Before reaching the merits of petitioners' appeal, I must address a procedural issue. Respondent asserts that petitioners' appeal was not commenced in a timely manner as required by Part 279.2(b) of the Regulations of the Commissioner of Education and, therefore, should be dismissed. State regulation provides that the notice of intention to seek review must be served upon the school district within 25 days from the date of the decision sought to be reviewed and the petition for review must be served within 35 days from the date of the decision sought to be reviewed (8 NYCRR 279.2[b]). If the decision has been served by mail upon the petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the time period (id.). Respondent asserts that petitioners are not entitled to the presumptive additional "date of mailing and four subsequent days thereto" exclusion in calculating the time for service of a petition. In the petition and by letter, petitioners' attorney explained the circumstances surrounding the transmittal and receipt of the impartial hearing officer's decision and avers that service of the impartial hearing officer's decision was effectuated only by regular mail thus entitling petitioners to the exclusions in calculating time for service of the petition. I have considered the positions of the parties and, based upon the circumstances presented, I will accept the petition.
The student was nearly eight years old and in the second grade at Windward when the impartial hearing began in April 2005. Windward is not approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (8 NYCRR 200.7). The student has diagnoses of learning disability, attention deficit hyperactivity disorder (ADHD) for which he was taking medication, sensory integration disorder, and developmental coordination disorder (Joint Ex. 52 at p. 5; Joint Ex. 54 at p. 3; District Ex. 3 at p. 3). He has identified deficits in phonological awareness affecting his ability to discriminate and retain sounds and sound patterns, deficits in auditory sequential memory affecting his ability to retain information in order, visual perceptual deficits affecting his discrimination, reading, and writing of letters and numbers, oral motor deficits affecting his articulation, and fine motor deficits affecting his writing abilities (Tr. p. 80). The student's eligibility for special education programs and services and his classification as a student with a learning disability are not in dispute (see 8 NYCRR 200.1[zz]).
Petitioners' son received early intervention services, then transitioned to the jurisdiction of the Committee on Preschool Special Education (CPSE) and was classified as a preschool child with a disability (Joint Exs. 54, 59). Administration of the Stanford Binet Intelligence Scale in April 2001, when the student was three years old, yielded a composite standard age score of 111. For the 2001-02 school year, when he was four years old, the student received a program of occupational and speech-language therapy (Joint Exs. 59, 61). The CPSE met in May 2002 for the student's annual review (id.). It noted that the student continued to exhibit weaknesses in articulation, fine motor skills, sensory processing and interpersonal interactions (id.). The CPSE recommended extended school year services to begin July 1, 2002 and referred the student to the Committee on Special Education (CSE) as he would be turning five and transitioning to its jurisdiction (Joint Ex. 61).
The CSE also met on May 1, 2002 (Joint Ex. 60). It determined that the student be classified as having a speech or language impairment and that he receive related services of occupational and speech-language therapy. He began attending kindergarten at respondent's elementary school in the fall of 2002 for the 2002-03 school year (Tr. pp. 688-89).
In January 2003, the student was referred to the school's instructional support team (IST) due to academic, behavior and social concerns (Joint Ex. 58; Tr. p. 63). The kindergarten teacher reported that the student was not progressing in the classroom and that he was having a difficult time acquiring basic skills and concepts (Joint Ex. 58). Minimal progress was noted in occupational and speech therapy. The student's overall performance was described as "highly inconsistent," and there appeared to be a "significant lack of retention." The IST's recommendations included development of a plan for inappropriate behaviors, participation in a social skills group and additional testing. The IST met with petitioners on February 5, 2003 to discuss the student's progress (Joint Ex. 57). Meeting minutes reflect that the student was being evaluated by the Center for Learning Disorders (CLD).
At the request of petitioners and the student's pediatrician, the CLD evaluated the student in early 2003 because he was exhibiting difficulty learning letters and numbers, was becoming easily frustrated and was exhibiting some behavioral difficulties (Joint Ex. 54). The CLD conducted a neurologic, educational and psychological evaluation. The educational evaluator administered numerous tests including selected subtests of the Test of Visual-Perceptual Skills (nonmotor) (TVPS-R) and the Test of Auditory-Perceptual Skills-Revised (TAPS-R), the Woodcock Johnson III Achievement Test (WJ-III), and the Clinical Evaluation of Language Fundamentals-Preschool (CELF-Preschool) (Joint Ex. 51). She noted inconsistencies in the student's attention span, which she opined was due in part to low frustration tolerance (Joint Ex. 51 at p. 13). Inconsistencies also were found in the student's reading and mathematics skills. The evaluator reported that the student could not consistently discriminate among specific consonant or short vowel sounds. He also exhibited visual memory weakness, which the evaluator noted, might interfere with the development of a sight word vocabulary. She made various recommendations including placement in a self-contained class, occupational therapy, language therapy, additional instruction in phonemic awareness, classroom management strategies to improve attention, multisensory reading instruction, a basal reading program for a short period of time, and manipulatives for mathematics (Joint Ex. 51 at pp. 14-16).
As part of the CLD psychological evaluation, the psychologist administered the Weschler Preschool and Primary Scale of Intelligences – Third Edition (WPPSI-III) and the Wide Range Achievement Test-3 (WRAT-3) (Joint Ex. 52). Administration of the WPPSI-III yielded a verbal IQ score of 131, a performance IQ score of 90 and a full scale IQ score of 107 (Joint Ex. 52 at p. 4). The psychologist indicated the 41-point difference between the student's verbal and performance IQ scores made the student's full scale IQ score "meaningless" and was suggestive of "unusual cerebral organization." On the WRAT-3, the student achieved standard (and percentile) scores of 91 (27) in reading, 58 (<1) in arithmetic, and 66 (1) in spelling, indicating that his word recognition, spelling and arithmetic skills were at a prekindergarten level and an "early sign of dyslexia." The psychologist opined that the student was "very aware and concerned about his academic deficits," and found his regular education kindergarten class frustrating (Joint Ex. 52 at p. 5). He noted that there were concerns about the student's classroom behavior and ability to attend to classroom routines, but opined that the student's difficult behavior and apparent inattentiveness would not be a problem in a special education setting (id.).
In April 2003, the evaluators at CLD prepared their summary and recommendations (Joint Ex. 55). They noted that there was a 41-point difference between the student's verbal and performance IQ scores, "definite signs of learning disability, specifically early signs of dyslexia," some behavioral difficulties due to his frustration in school and problems with social skills. They also noted that the student exhibited a short attention span, but indicated that it was uncertain whether he was overwhelmed by the academics and his learning disability, or whether there was an underlying attention deficit disorder. The evaluators' recommendations included occupational therapy, language therapy, an Orton-Gillingham based reading program and a social skills program. The evaluators also recommended that the student be reevaluated in the middle of the year to assess his progress and to determine if his attention improved after he received the educational supports.
In an April 2003 occupational therapy progress report, the occupational therapist indicated that areas of concentration in therapy included fine motor coordination, visual motor integration and sensory integration (Joint Ex. 49). She reported that the student's sensory and visual processing difficulties impeded his ability to succeed at school. She noted that the student had a low frustration level and easily became upset when he was unable to perform a task. She also noted that the student was very aware of his difficulties and of what his classmates could do that he could not.
Respondent's CSE met on April 28, 2003 to review the student's program (Joint Ex. 47). The CSE reviewed the CLD reports including the results of the WPPSI-III. The CSE also reviewed the student's strengths and weaknesses, and, based upon significant weaknesses in math and reading, changed the student's classification to learning disabled (Joint Ex. 47 at p. 5). In addition, it recommended that the student's program be changed to include consultant teacher services for intensive math support, participation in a multisensory reading program, counseling, and a continuation of the occupational and speech-language therapy he had been receiving.
The student's kindergarten teacher conducted math assessments at various times during the school year and a writing assessment in June 2003 (Joint Exs. 43, 44). In addition, the speech-language therapist prepared a progress report in June 2003 noting "fair" progress (Joint Ex. 42). In a June 2003 reading progress report, the student's reading teacher indicated that she provided multisensory instruction using the Preventing Academic Failure (PAF) program (Joint Ex. 41). She identified the letters and sounds the student had learned, indicating he had also learned the motor pattern for each. She reported that he was learning to read, write and spell, and had made "much progress."
In a June 2003 kindergarten pupil progress report, the student's teacher commented that the student had grown academically and socially (Joint Ex. 46). She indicated that the student's letter/sound awareness had improved and that he had learned several letters. Number recognition continued to be challenging for the student. The teacher noted that, at times, the student reacted impulsively when faced with a frustrating social situation. She also noted that while the student's attention span had increased, teacher support continued to be necessary throughout the day.
The CSE subcommittee met on June 23, 2003 for the student's annual review and to develop his individualized education program (IEP) for the 2003-04 school year when the student would be in the first grade (Joint Ex. 39). It determined that the student continue to be classified as having a learning disability. It also recommended that the student receive extended school year services during summer 2003 in reading, math and occupational therapy (Joint Ex. 39 at p. 5). For the 2003-04 school year, the CSE subcommittee recommended that the student receive individual resource room services for intensive math support, that he participate in a multisensory reading program, individually and in a small group, and that he receive individual occupational therapy, individual and small group speech-language therapy, and beginning October 2003, informal social skills group counseling, all on a nonintegrated or pull-out basis (id.). The CSE subcommittee also recommended that the student participate in a school-wide enrichment model (SEM) independent project under the direction of respondent's SEM coordinator (id.).
In an August 2003 summer progress report, the occupational therapist indicated that the student made "nice improvements" with his visual perceptual and fine motor skills and that his planning and organization improved with the specific tasks practiced (Joint Ex. 37). She noted improvement in the student's transition to therapy when he was given clear guidelines as to when he could have a break and talk. She reported that his attention span interfered with his performance especially when the visual perceptual tasks became more difficult and when he was working on the task for more than 15 minutes at a time without a break.
The special education teacher who provided consultant teacher services in reading and mathematics to the student during summer 2003 prepared a progress summary (Joint Ex. 38). She indicated that she worked on the student's phonemic skills using the PAF program. She reported that by the end of the summer, the student was able to master many additional consonant letter sounds and some names of letters, was blending sounds to form consonant-vowel-consonant (CVC) words and was beginning to learn sight words. The summer special education teacher noted that handwriting was incorporated into all of the student's lessons. She also reported that the student was able to add and subtract quickly and accurately when manipulatives were used. The student began receiving private tutoring in August 2003 (Dist. Ex. 7).
The student began attending first grade at respondent's elementary school in September 2003 (Joint Ex. 12). Shortly thereafter, the student exhibited a series of inappropriate behaviors over the course of a few days (Joint Ex. 36). The elementary school principal scheduled a meeting with petitioners to discuss a behavior plan. Petitioners granted permission for a Board of Cooperative Educational Services (BOCES) psychologist to observe their son and consult with his teachers and the support staff in an effort to develop a behavior plan (Joint Ex. 35).
In October 2003, the CLD psychologist evaluated the student at petitioners' request as petitioners were considering Windward for their son and a psychological consultation was part of Windward's application process (Dist. Ex. 3). The psychologist described the student as a "very bright boy with very obvious learning disabilities." He reported that, in September 2003, petitioners consulted with the CLD pediatric neurologist because their son's behavior and attention problems continued. The student was prescribed medication for an ADHD and petitioners reported that he was no longer presenting behavior problems.
In a November 2003 letter to respondent's director of special services, the BOCES psychologist indicated that he had observed the student, consulted with school staff and met with petitioners (Joint Ex. 33). He further indicated that he developed a behavioral recording system, collected behavioral data and summarized the information on a graph which he attached to the letter. The chart showed behavioral frequency of various events in such categories as peer aggression, task avoidance and tearfulness.
In a November 2003 reading progress report, the student's reading specialist reported growth in the student's reading, writing and spelling since September 2003 (Joint Ex. 31). She identified the letters and sounds she had taught the student and indicated that he was able to recognize most of them. She also identified the sight words that she taught the student. The reading specialist reported that the student was able to write most words and sentences from dictation, was reading more fluently and had improved his handwriting.
The student's speech-language therapist also reported on the student's progress in November 2003 (Joint Ex. 30). She indicated that the student had made steady progress in his discrimination of sounds, verbal memory and ability to recall and complete longer directives.
The CSE subcommittee met on November 12, 2003 to review the student's progress (Joint Ex. 34 at p. 6). In addition to the progress described in the November 2003 reading and speech-language reports (Joint Exs. 30, 31), the classroom teacher reported improvements in the student's ability to attend in the classroom as well as in his behavior and social skills (Joint Ex. 34 at p. 6). She also described the student's progress in handwriting as "noteworthy." Progress also was noted in number recognition, number combinations, simple math problems and memory for basic math skills. In occupational therapy, the student showed improvement in his visual perceptual skills, specifically his ability to internalize strategies and visualize changes. Support personnel and petitioners agreed that the student would benefit from continued support delivered in small group settings with the opportunity for peer interactions. The CSE subcommittee recommended that the student continue in his current program with changes in the frequency and ratio of services including consultant teacher services for math in a group of two, multisensory reading instruction in a group of four, occupational therapy in a group of five and speech-language therapy in a group of two, all on a nonintegrated or pull-out basis. The CSE subcommittee continued its recommendation for the student's participation in an SEM independent project and changed informal social skills counseling to an as needed basis.
A progress report for IEP goals and objectives was prepared in December 2003 (Joint Ex. 32). The student was either "progressing satisfactorily" or "showing some progress" toward meeting his reading goals, "showing some progress" toward meeting his writing goals, and was either "progressing satisfactorily" or "showing some progress" toward meeting his mathematics goal. In addition, the student was either "progressing satisfactorily" or "showing some progress" toward meeting most of his occupational and speech-language therapy goals.
In March 2004, in connection with the Windward application process, the student's private tutor, who had been tutoring the student since August 2003, advised Windward that the student had a very poor phonological memory, and that while he had acquired the short vowel and most consonant sounds in isolation, he continued to struggle with basic CVC patterns (Dist. Ex. 7). She further indicated that the student had not yet developed a sight word vocabulary. The private tutor noted that the student's work production was labored. She noted that respondent provided occupational therapy support to the student and indicated that his graphomotor control had shown improvement. She further noted that the student continued to be distractible despite taking medication for ADHD. The private tutor opined that the student was in need of a highly structured, total immersion program.
In March 4, 2004, Windward conducted an initial educational screening (Dist. Ex. 10). Test results showed that the student was able to recognize some high frequency words, that he did not recognize any sight words, and that he was able to decode 70 percent of CVC words presented. In mathematics, the student demonstrated understanding of one to one correspondence, identified the larger of two numbers, and performed addition and subtraction of single digit numbers. Admissions screening comments included that the student was struggling, but beginning to acquire decoding skills, exhibited distractibility and needed a highly structured language based Orton-Gillingham program.
In a March 2004 speech-language progress report, the speech-language therapist indicated that the student had "shown improvements in all areas" (Joint Ex. 29). That same month, respondent's enrichment coordinator reported that she had observed the student in the classroom and together with the student's teacher developed a project for the student (Joint Ex. 26).
In a March 2004 reading progress report, the student's reading specialist reported that the student had made "steady progress in reading, writing and spelling skills since November" (Joint Ex. 25). She listed the sight words she had taught. She indicated that he was able to recognize and decode all initial consonant sounds in CVC words with the exception of b and d at times, that he had improved his ability to decode final consonants, that he was able to produce short vowel sounds with visual cues, that he could read a list of CVC words containing short vowels with some inconsistency with o, e, u, and that he continued to improve his reading fluency.
In March 2004, the occupational therapist administered the Beery Test of Visual-Motor Integration with supplemental tests and the Test of Visual-Perceptual Skills (non-motor) (Joint Ex. 23). She reported that the student was performing between high and low average with visual perceptual skills non-motor, and high average for visual motor skills. The occupational therapist indicated that the student made "excellent gains with sensory and visual processing," but noted that decreased attention and impulsivity affected consistency of performance.
A progress report for IEP goals and objectives was prepared in March 2004 and showed that the student was "progressing satisfactorily" toward meeting his reading goals, "showing some progress" toward meeting his writing goals, and had completed two of the three short-term objectives supporting his mathematics goal (Joint Ex. 32). In addition, the student had either completed or was "progressing satisfactorily" in most of his speech-language short-term objectives and occupational therapy short-term objectives.
The CSE subcommittee met again in March 2004 to review the student's progress, address parental concerns and begin planning for the student's annual review (Joint Ex. 24 at p. 7). The classroom teacher reported that the student made gains in his overall social development and demonstrated the ability to appropriately use verbal skills when problem solving. He was able to incorporate many strategies he had learned into whole group instruction, had generalized many skills that he had learned in the PAF program to his whole group writing activities, and had become more independent in writing. The classroom teacher indicated that ongoing communication and coordination with specialists had been integral to the student's progress. The consultant teacher reported progress in math, indicating that the student performed well on the first grade midyear math assessment. In reading, collaboration between small group reading instruction and whole class reading instruction had been successful in facilitating the student's progress. It was noted that since the last program review in November 2003, there had been a significant decrease in the student's tearfulness when he was pulled out for specialized instruction. Petitioners indicated that they were interested in reducing the number of pull-outs in their son's program for the 2004-05 school year. No changes were made to the student's 2003-04 IEP.
The CSE subcommittee met on May 3, 2004 and developed an IEP for the student for the 2004-05 school year (Joint Ex. 20). According to the Committee meeting information, teacher input and testing results indicated progress across all academic and social areas (id. at p. 6). End of year testing documented progress in phonemic awareness, math, reading, sensory and visual processing skills and fine motor skills. The CSE subcommittee recommended an extended school year program during summer 2004 of consultant teacher services to support reading and math skills. For the 2004-05 school year, the CSE subcommittee recommended group consultant teacher services for math and writing support twice per week on an integrated or push-in basis, and twice per week on a nonintegrated or pull-out basis, indirect consultant teacher services once per week, nonintegrated group reading instruction four times per week, nonintegrated individual reading instruction once per week, and reading consultation bimonthly with the classroom teacher to collaborate on vocabulary, fluency and decoding within the general education classroom. In addition, the CSE subcommittee recommended group occupational and speech language therapy once per week on an integrated basis and once per week on a nonintegrated basis. The CSE subcommittee also recommended that respondent's SEM coordinator continue to consult with the student's teacher regarding ongoing enrichment activities. Finally, the CSE subcommittee recommended that a review meeting be scheduled for November 2004 to assess the appropriateness of the student's programming.
On May 25, 2004, the school psychologist and respondent's administrator of special services met with the student's mother, at her request, to discuss her son's end of the year test scores (Joint Ex. 17).
In a letter dated June 3, 2004 to respondent's administrator for special services, the student's mother indicated that she reviewed her son's 2004-05 IEP and, contrary to a statement in the comment section of the IEP, she and her husband were not in agreement with the plan (Joint Ex. 15). She reiterated that they wanted less pull-out time and more push-in time than the previous year. Additionally, the student's mother advised the administrator for special services that someone needed to be in her son's regular education classroom to ensure that he was understanding the teacher's directions and writing coherently. She requested that appropriate amendments be made.
In response to the June 3, 2004 letter, respondent's administrator for special services and the school psychologist met with petitioners on June 22, 2004 to clarify and address concerns about the number of pull-out sessions in the recommended program and the need for the student to have assistance in the regular education classroom (Joint Ex. 11). Petitioners indicated that their son had been accepted to Windward and that they were "seriously considering this option." On June 25, 2004, another meeting was held (Joint Ex. 10). The individuals who would be providing services to the student in second grade attended the meeting and agreed that services in math, occupational and speech-language therapy could be provided on an integrated basis, but that the reading program needed to remain nonintegrated. Meeting minutes reflect that they were open to revisiting the issue midyear.
By letter dated June 25, 2004, petitioners advised respondent's administrator for special services that they had decided to enroll their son in Windward in the fall of 2004 and that they would be seeking reimbursement for tuition and transportation expenses (Joint Ex. 9).
In a June 2004 progress report, the speech-language therapist reported that the student made "good" progress and that he showed "great improvements in all of his abilities this year" (Joint Ex. 13). The reading specialist also indicated that the student made "good progress in his reading, writing and spelling skills this year" (Joint Ex. 14). Comments on the student's final report card for the 2003-04 school year indicate that he had improved his sight vocabulary, that significant progress was made in reading, and that he continued to make steady progress in math (Joint Ex. 12).
On August 1, 2004, respondent's administrator for special services sent petitioners their son's progress report for the 2003-04 IEP goals and objectives (Joint Ex. 6). Also in August 2004 progress reports for reading and mathematics were prepared (Joint Ex. 5). The reports indicate that, in reading, the student had continued to solidify the essential reading and writing skills that he learned during the school year. His decoding ability and reading fluency continued to improve and his handwriting was more legible. In mathematics, the student made continued growth during the summer sessions. His skills became more automatic and fluent in all areas covered.
In a letter dated September 13, 2004, petitioners requested an impartial hearing stating that the CSE's recommendation for the 2004-05 school year did not appropriately address their son's needs and was based upon an invalid and inappropriate IEP (Joint Ex. 1). They indicated that they placed their son at Windward for the 2004-05 school year and were seeking tuition reimbursement.
Windward administered tests to the student in September 2004 and May 2005 (Parent Ex. 18). It prepared student progress reports in February and June 2005 (Parent Exs. 15, 16) and reports cards were distributed quarterly (Parent Ex. 14).
To prepare for the students annual review, respondent's CSE arranged for observations of the student during a reading/writing lesson and a math lesson at Windward in April 2005 (Parent Ex. 17).
The impartial hearing began on April 6, 2005 and concluded on June 22, 2005, after five hearing sessions. The impartial hearing officer rendered his decision on October 31, 2005. He found that the record supported that the CSE's May 2004 recommendation was appropriate. Specifically, the impartial hearing officer found that the CSE's failure to be more exact regarding the date for review and monitoring of the recommended short-term instructional objectives did not render the IEP invalid. He also found that petitioners had a full opportunity to participate in the CSE process and that their claim that the CSE refused to consider other placement options was not supported by the record. The impartial hearing officer further found that petitioners' claim that the recommended program mirrored the student's prior educational program in which he made little or no progress was not supported by the record. He concluded that the student received substantial educational benefits and that the recommended program and placement was appropriate. Having found the May 2004 IEP appropriate, the impartial hearing officer did not address the remaining criteria for an award of tuition reimbursement. He denied petitioners' request for tuition reimbursement.
The impartial hearing officer addressed two additional issues. First, he found that the student's academic skills and abilities warranted a recommendation of placement in a general education class consistent with the least restrictive environment (LRE) requirement. Finally, he determined that the meetings that occurred subsequent to the May 2004 CSE meeting did not constitute formal CSE meetings and that there were no violations arising out of those meetings.
Petitioners appeal from the impartial hearing officer's decision on numerous grounds. They contend that the May 2004 IEP does not contain sufficient short-term instructional objectives to allow their son to progress toward meeting the long term goals, and that the goals were modest, resulting in trivial progress. They further contend that the CSE failed to take into account the emotional toll on their son of repeatedly being pulled out of his general education classroom. Petitioners also contend that the CSE failed to include them as active participants in the CSE process and ignored the CLD's recommendation for placement in a self-contained class designed for students with learning disabilities.
A purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487)1 is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][A]; Schaffer v. Weast, 126 S. Ct. 528 ). A FAPE includes 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]).2 A board of education may be required to reimburse parents for expenditures for private educational services obtained for their child, 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 ; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (id.). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073). 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).
A FAPE is offered to a student when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) 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 ). While school districts are required to comply with all IDEA procedures, 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]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, 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 WL 31521158 [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 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998][citation and internal quotation omitted]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132; Antonaccio v. Bd. of Educ., 281 F. Supp. 2d 710, 726 [S.D.N.Y. 2003]).
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).
Petitioners claim that the impartial hearing officer erred in finding that the program offered for their son for the 2004-05 school year was appropriate. The record shows that in addition to deficits in reading, writing and mathematics, the student also has deficits in speech, language, sensory integration and fine motor skills. The May 2004 IEP established goals related to those needs. Petitioners assert, however, that the May 2004 IEP does not contain short-term objectives. They claim that the IEP failed to "provide for any interim progress benchmarks."
An IEP must 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]; see 8 NYCRR 200.4[d][iii]). Once a CSE has developed measurable annual goals for a child, the committee can develop strategies that will be most effective in realizing those goals and must develop either measurable, intermediate steps (short-term objectives) or major milestones (benchmarks) that will enable parents, students, and educators to monitor progress during the year, and, if appropriate, to revise the IEP consistent with the student's instructional needs (34 C.F.R. Part 300, Appendix A—Notice of Interpretation, Section I, Question 1). Short-term instructional objectives break the skill described in the annual goal down into discrete components whereas benchmarks may be thought of as describing the amount of progress the child is expected to make within specified segments of the year. (34 C.F.R. Part 300, Appendix A—Notice of Interpretation, Section I, Question 1). The purpose of including short-term objectives or benchmarks is to enable a child's teachers, parents and others involved in the process to gauge at intermediate times during the year how well the student is progressing toward achievement of the annual goal, and, if appropriate, to revise the IEP consistent with the student's instructional needs (id.).
As noted above, the impartial hearing officer found that while the CSE could have been more exact regarding the date for review and monitoring of the recommended objectives, the failure to do so in light of the notation on the IEP for a November 2004 meeting to review and assess the objectives did not render the IEP invalid. I agree. Moreover, in addition to providing for a meeting in November 2004, the May 2004 IEP also provided that written reports indicating the child's progress toward meeting the annual goals were to be provided three times during the school year. I note that during the 2003-04 school year, written reports toward meeting the annual goals were provided in December, March and June, report cards were distributed three times during the year, the CSE met in November 2003 and March 2004 to review the student's progress and service providers completed progress reports at various time throughout the school year, including summer 2003. (Joint Exs. 12, 23, 24, 25, 26, 29, 30, 31, 32, 34, 37, 38).
Petitioners also claim that the May 2004 IEP was similar to the program provided to the student during the 2003-04 school year. They assert that the 2003-04 program had resulted in trivial progress, and that the 2004-05 program would have the same result. While the record shows that the program recommended for the student for the 2004-05 school year is similar to the program provided to the student during the 2003-04 school year, the record does not support petitioners' claim that their son's progress during the 2003-04 school year was trivial.
As noted above, the record shows that in early 2002, around the same time respondent's staff expressed concerns about the student's progress and ability to acquire basic skills, petitioners arranged for their son to be evaluated at the CLD. When respondent's CSE subcommittee convened in April 2003 to review the results of the private evaluations and the student's progress, the student did not have an adequate understanding of basic literacy concepts, could not follow along as sentences were read to him, could not always differentiate letters from words, could not identify when a particular letter came before another letter or word when looking at the letters or words, and was not able to read any sight words (Joint Ex. 51 at pp. 11-12). He was only able to name between nine and thirteen uppercase letters, approximately nine lowercase letters, and could provide the sound of approximately 13 consonants (id.). The student also was unable to count beyond 12, was not consistently able to recognize the numerals one through five, and could write some one-digit numbers, but tended to reverse them (Joint Ex. 51 at p. 13).
The following year, when the CSE subcommittee convened in May 2004 to develop the student's program for the 2004-05 school year, the student was consistently recognizing and decoding all initial and final consonant sounds except b and d, recognizing all CVC words, distinguishing short vowel sounds in CVC words most of the time, writing from dictation, and had expanded his sight vocabulary. He had improved in his abilities to spell CVC words and to formulate original sentences when given specific vocabulary. The student was counting to 100, pointing to corresponding numbers on a number chart, and was accurately and quickly solving addition and subtraction problems with combinations up to ten. He was interpreting information on a picture graph when questions were read to him and was identifying the tens and ones place of numbers one to one hundred using manipulatives. In speech and language, the student had increased his awareness of sounds and how to segment and blend. He had improved in discriminating sounds in the initial position of words, following two to three step directions with concept information, identifying and recalling story elements. His visual perceptual skills (nonmotor) were in the high to low average range with his visual motor skills in the high average range. The student also was communicating and interacting in a more socially acceptable manner with his peers.
The student's reading specialist in first grade testified that the student's progress was slow and erratic, but that he was "definitely progressing through the material" (Tr. p. 276). The student's mathematics teacher testified that the student had developed increasingly stronger math skills and "he made incredibly solid progress with me" (Tr. p. 1083). She further testified that the respondent's first grade followed a curriculum and that the student "was understanding and progressing with the areas of math that we teach" (Tr. p. 1119).
Based on a review of all of the student's progress reports, standardized test scores, and testimony, I find that, given the nature and extent of his disability, the student made meaningful progress in the program implemented during the 2003-04 school year. I further find that the May 2004 IEP was similar to and retained the essential elements of the program provided to the student during the 2003-04 school year. Accordingly, I find that the May 2004 IEP, at the time it was formulated, was reasonably calculated to enable the student to receive educational benefits.
Petitioners raise additional claims, none of which are supported by the record. They contend that the CSE failed to take into account the emotional toll that repeatedly being pulled out of the regular education classroom had on their son. The record shows, however, that in response to petitioners' concerns, the CSE subcommittee reduced the number of pull-out services in the program recommended for the 2004-05 school year, and that the administrator of special services met with petitioners and the student's second grade providers to discuss whether other services could be provided on a push-in basis. I must note that the record shows that at the beginning of the 2003-04 school year, the student displayed occasional resistance to being pulled out of the classroom, which was typical of students his age (Tr. pp. 305-06, 324-25, 994, 1079). The record further shows that his resistance lessened over the course of the school year (Tr. pp. 305-06, 994, 1079).
Petitioners also contend that the CSE failed to include them as active participants in the CSE process. The record shows, however, that not only did petitioners participate in three CSE meetings during the 2003-04 school year between November 2003 and May 2004, but also respondent's administrator for special services also met with petitioners after the May 2004 IEP was developed to discuss their concerns about the recommended program. Finally, petitioners claim that the CSE ignored the CLD's recommendation for placement in a self-contained class. Although a CSE must consider the results of privately obtained evaluations (8 NYCRR 200.5[g][v][a]), it is not obligated to adopt every recommendation. Rather, it is the responsibility of the committee to make recommendations regarding the student's needs and the services to be provided (Education Law § 4402[b]). The record shows that the CSE considered the CLD's evaluations. I note that the CSE's recommendations were consistent with a number of the CLD's recommendations including the use of the PAF program for reading instruction. Here, the May 2004 IEP, a continuation of an educational program that produced meaningful benefit, was based upon adequate assessments and offered special education programs and services in the LRE that were tailored and aligned to meet the student's then current individual needs (Application of the Bd. of Educ., Appeal No. 04-031; Application of the Bd. of Educ., Appeal No. 04-032). Based upon the information before me I find that the evidence demonstrates that the May 2004 IEP was reasonably calculated to confer meaningful educational benefit and that respondent offered a FAPE to the student for the 2004-05 school year.3 Having so determined, the necessary inquiry is at an end and there is no need to reach the issue of whether Windward was an appropriate placement (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 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.
2 The term "free appropriate public education" means special education and related services that -
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.
20 U.S.C. § 1401(8).
3 This determination would remain if during the administrative hearing the burden had been placed on the parents, the parties challenging the IEP, as the Supreme Court recently established in Schaffer v. Weast, 126 S. Ct. 528, 537 (2005) (see Application of the Bd. of Educ., Appeal No 05-120).