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 Wappingers Central School District
Family Advocates, Inc., attorney for petitioner, RosaLee Charpentier, Esq., of counsel
Donaghue, Thomas, Auslander, & Drohan, attorney for respondent, James P. Drohan, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their son's tuition costs at the Kildonan School (Kildonan) for the 2004-05 school year. The Board of Education cross-appeals from the impartial hearing officer's determination that it failed to demonstrate that it had offered to provide an appropriate educational program to the student for that year. The appeal must be dismissed. The cross-appeal must be dismissed.
At the commencement of the impartial hearing in June 2005, the student was 14 years old and enrolled at Kildonan (Tr. p. 36). The Commissioner of Education has not approved Kildonan as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.7, 200.1[d]). The student's history includes a diagnosis of a severe auditory processing disorder, characterized by weaknesses in the areas of auditory memory, auditory sequencing, auditory closure, binaural separation, and listening in the presence of background noise (Joint Ex. 3 at p. 2; see also, Joint Ex. 13 at p. 7). The student also has significant difficulty with attention and organization as well as difficulties with automaticity in applying decoding strategies (Joint Ex. 13 at p. 6), reading comprehension, written expression, and expressive language (Joint Ex. 1 at p. 2). He is able to complete math activities and assignments at grade level, but experiences difficulty with word problems (Joint Ex. 1 at p. 3). The student's eligibility for special education services as a student with a learning disability (see 8 NYCRR 200.1[zz]) is not in dispute.
The student's prior educational history is described in Application of a Child with a Disability, Appeal No. 03-039, decided on December 19, 2003, and will not be repeated here at length in this decision (Joint Ex. 3). The student reportedly began receiving special education services in respondent's schools when he was in kindergarten until his unilateral placement at Kildonan for the 2002-03 school year.
In December 2001, when the student attended a fifth grade inclusion class in one of respondent's elementary schools, and received speech and language services for thirty minutes three times in a six day cycle (Joint Ex. 8 at p. 3), a private neuropsychological evaluation was conducted to identify the student's strengths and weaknesses and to clarify his educational needs (Joint Ex. 9 at p. 1). At that time, administration of the Wechsler Intelligence Scale for Children- III (WISC-III) yielded a verbal IQ score of 93 (32nd percentile), a performance IQ score of 96 (39th percentile), and a full scale IQ score of 94 (34th percentile) (Joint Ex. 10 at p. 1). Although the student's scores were in the average range of cognitive ability, the neuropsychologist concluded that his performance on specific subtests of the WISC-III suggested that the student demonstrated general intellectual ability in the high average range, with evidence of significant processing deficits in the areas of attention and mental tracking, planning, organization and self-monitoring of responses, verbal associative learning, social and causal reasoning and social perception, directional orientation and spatial organization, and visuomotor integration (Joint Ex. 9 at pp. 3, 8). The neuropsychologist estimated that the student's general intellectual capacity was "at least in the 84th percentile" (Joint Ex. 9 at p. 3).
The neuropsychologist reported that the student's performance on selected subtests of various standardized achievement tests indicated that his strengths noted at that time were in the areas of verbal abstract reasoning and visuospatial problem solving when there is no speed or motor component, as well as the student's positive attitude and friendly manner (Joint Ex. 9 at p. 8). Academic skills were significantly below grade expectation, with the exception of math (id.), for which she concluded that the student's "potential math reasoning skills" were in the high average range, but that he had an "uneven grasp of concepts and procedures" for use of decimals and fractions (Joint Ex. 9 at p. 7). She found that the student's history and the results of her evaluation were consistent with a diagnosis of an attention deficit disorder (ADD), inattentive and internally distracted type, along with specific developmental visuospatial, visuomotor, fine motor and motor programming deficits, as well as a social perception deficit (Joint Ex. 9 at p. 8). Additionally, the neuropsychologist indicated that at that time, the student was in need of increased academic support, and made a number of recommendations, which included specific recommendations for preferential seating, limited distractions, nonverbal cuing from the teacher to stay on task, and multisensory instruction in small group settings with children of similar intellectual capacity and with similar cognitive weaknesses (id.). In addition, she also recommended that the student receive direct instruction in organizational and study skills, a reduced homework load, with fewer items per page, and reduced demand for copying with use of a computer for written work whenever possible (Joint Ex. 9 at pp. 8-9). Math problems were recommended to be done on graph paper with operators highlighted (Joint Ex. 9 at p. 9). An occupational therapy (OT) evaluation was also recommended to assess the student's OT needs as the evaluator noted that motor skills for handwriting, tracking and posture needed remediation (id.). Additional recommendations were: touch typing should be taught to reduce visuospatial and visuomotor demands of writing and editing; enlarged print when possible; a guide for scanning across a line and from line to line in text; provision of a scribe for tests demanding a lot of writing; and possibly in the future, a copy of class notes (id.).
An OT evaluation was conducted on February 7, 2002, when the student was eleven years old and in the fifth grade (Joint Ex. 8 at pp. 1, 3). Evaluation results identified fine motor, visual motor, and visual perception skill at or above age level, with weakness in visual-sequential memory (Joint Ex. 8 at pp. 2, 4). The student's handwriting was described as "generally legible" (Joint Ex. 8 at p. 4). OT services were not recommended for the student (id.).
In summer 2002, after the student had completed fifth grade, petitioners enrolled their son at Camp Dunnabeck, Kildonan's summer program (Tr. p. 473). Petitioners subsequently enrolled the student at Kildonan for sixth grade, after they objected to the Individualized Education Program (IEP) recommended by respondent's Committee on Special Education (CSE) for the 2002-03 school year and informed respondent that they would seek tuition and other reimbursements (Joint Ex. 3 at p. 3). An impartial hearing followed and the matter is currently pending in the United States District Court for the Southern District of New York (Pet. ¶ 9; Answer ¶ 9). In the interim, petitioners raised objections to the 2003-04 IEP developed by the CSE for the student's seventh grade year (Pet. ¶ 10; Answer ¶ 10). However, that claim was fully settled by the parties (Pet. ¶¶ 10, 11; Answer ¶¶ 10, 11) and the details of that settlement are not included in the record.
In October 2003, when the student was 13 years old and enrolled in the seventh grade at Kildonan, petitioners arranged for an educational evaluation by the neuropsychologist who had evaluated their son in December 2001 "in order to determine the type and extent of progress" the student had made at Kildonan (Parent Ex. C at p. 1). Based on results of administration of subtests from various standardized assessment tools, she concluded that the student demonstrated "a variable pattern of improvement" in reading and comprehension, and "math skills "approximately equal to those demonstrated in 2001" (Parent Ex. C at pp. 5, 6). Written expression was described as "having developed in relation to his grade, with a consistent pattern of weakness in mechanics and vocabulary" (Parent Ex. C at p. 7). The neuropsychologist recommended that the student "continue at Kildonan, where he seems to be thriving" and opined that the instruction that the student was receiving at Kildonan was "exactly what he needs" (Parent Ex. C at p. 8). She again recommended that the student receive instruction in organizational and study skills, keyboarding and touch-typing (id.).
On May 12, 2004, respondent's psychologist conducted an evaluation update in preparation for the student's triennial review (Joint Ex. 4). Administration of the Diagnostic Achievement Battery-Third Edition (DAB-3) yielded results in the above average to low range, with strengths identified in math calculation (75th percentile), math reasoning (50th percentile), and story comprehension (63rd percentile) (Joint Ex. 4 at p. 1). Difficulties were identified in reading comprehension (16th percentile), and alphabet/word knowledge (9th percentile) (id.). The Comprehensive Test of Phonological Processing (CTOPP) was also administered (id.). The evaluator reported that difficulties in one or more areas addressed by the test could contribute to the student’s learning difficulties (id.). Strengths were identified in phonological awareness, and weaknesses were noted in phonological memory based on the student's performance on subtests that required him to listen and repeat information in his short-term memory (Joint Ex. 4 at pp. 2-3).
On May 20, 2004, the CSE met to plan the student's eighth grade program for the 2004-05 school year (Parent's Ex. F at p. 1). The CSE chairperson, the parent representative, the parents, and the school psychologist, were in attendance (Parent Ex. F at p. 3). The academic dean from Kildonan, and respondent's general education teacher and special education teacher participated by telephone (id.). This meeting discussion was postponed, and the CSE was unable to complete a review of the IEP goals and update information in the time allowed, because respondent's teachers and Kildonan's academic dean had to leave the meeting due to other commitments (Parent's Ex. F at p. 2, Tr. pp. 179-80, 485).
A June 8, 2004 end of term progress report from Kildonan indicated that the student had achieved final grades of B+ in Literature and Introduction to Media, B in Math, and B- in Science and History (Joint Ex. 5). The student's Introduction to Media teacher reported that the student had demonstrated an improved ability to concentrate as the term progressed, but his Science and Literature teachers noted episodes of disruptive behavior and "periphery conversation. His Introduction to Media teacher also commented favorably on the quality of the student's work on class projects, but other teachers, including his Language Training tutor, reported that assignments were not handed in on time, and remarked on the poor quality of the student's work. His History teacher noted that the quality of the student's weekend assignments had deteriorated as the school term progressed.
Respondent's CSE reconvened on August 9, 2004 to discuss the student's annual review and to develop his eighth grade program for the 2004-05 school year (Joint Ex. 1; Tr. pp. 138, 493). Members included four individuals who had not attended the May 20 meeting: a CSE chairperson, special education and general education teachers who taught seventh grade, and a parent member (Tr. p. 170). The Kildonan representative was not available for the August 9 meeting (Joint Ex. 1 at p. 5, Parent Ex. K at p. 3). The CSE convened with petitioner's consent (Joint Ex. 1 at p. 5). CSE minutes reflect that the student's program was "to be determined;" however, respondent's CSE proposed either a 12:1+1 self-contained classroom or 12:1 integrated classroom (Parent Ex. K at p. 1). Related services of individual special class reading and speech and language therapy were also recommended, as were various test accommodations, program modifications and assistive technology devices (Parent Ex. K at pp. 1-2). At the meeting, petitioners indicated that they wanted specific information regarding the recommended placement prior to making a decision about the recommended program (Tr. p. 499). They also requested access to information regarding the class profile and the student's teachers' training and certifications (Parent Ex. K at p. 2).
By letter dated August 20, 2004, petitioners notified respondent that they rejected the proposed IEP as it had been discussed at the August 9, 2004 CSE meeting, and that they had decided to send their son to Kildonan for the 2004-05 school year (Parent Ex. N). They advised respondent that the “options discussed during the CSE meeting were inappropriate” for their son, because the proposed "program(s) will not be able to address his needs" (id.). Moreover, in their letter, petitioners stated that they "believe that the Kildonan School is the correct placement for [their son] because of the growth and development [they] witnessed at Kildonan" (id.). In closing, petitioners advised respondent that they intended to exercise their due process rights by requesting an impartial hearing, where they would seek tuition reimbursement for his program at Kildonan (id.). In a separate letter to respondent also dated August 20, 2004, petitioners requested transportation services to and from Kildonan for the 2004-05 school year (Parent Ex. G). By letter, respondent notified petitioners that the Board of Education had met to review and support the recommendations of the August 9, 2004 CSE and indicated that the recommendations had previously been provided to petitioners. (Tr. p. 170). Petitioners testified that they received the IEP on September 15 or September 16, 2004 (Tr. p. 513).
An October 15, 2004 interim progress report from Kildonan contained teacher narrative comments indicating that the student was easily distracted and that his assignments were frequently late and poorly done (Parent Ex. U). His History teacher indicated that the student was resistant to note taking (Parent Ex. U at p. 5.) A handwritten comment on the report from Kildonan's academic dean exhorted the student to spend more time on assignments and the student's language training tutor suggested that the student increase his "diligence" (Parent Ex. U at p. 1.) On a November 24, 2004 progress report, the student's Language Training tutor noted that the student had demonstrated a "changed attitude" as evidenced by a "surge of diligence" but other teachers again reported difficulty with lack of attention and late or incomplete assignments (Parent Ex. U at pp.11-15). His History teacher again noted resistance to note taking and his Math teacher commented that the student's grades would improve if he refrained from "drawing during class discussions"(Parent Ex. U at pp 12, 14,). On a January 26, 2005 interim progress report, the student's Math teacher noted that the student had failed to hand in seven homework assignments, and his History and Science teachers commented on the student's need to "use effort during class" and "exercise better self-control" (Parent Ex. U at p. 9.). A handwritten note from the academic dean encouraged the student to "buckle down and be more focused" (id.).
By letter dated January 3, 2005, petitioners made a formal request for an impartial hearing (Parent Ex. J).
The impartial hearing commenced on June 15, 2005 and concluded on December 21, 2005 after seven days of testimony. At the impartial hearing, petitioners asserted that respondent failed to offer their son a free appropriate public education (FAPE) for the 2004-05 school year and that his educational placement at Kildonan was appropriate. Respondent contended that the IEP prepared for the student was procedurally and substantively adequate, and that it offered an appropriate placement for the student. Respondent argued that petitioners were not entitled to tuition reimbursement.
On March 23, 2005, the student participated in testing at Yale University as part of a research project examining learning and attention (Yale report) (Joint Ex. 13). Administration of the Weschler Abbreviated Scale of Intelligence (WASI) yielded an estimated Verbal IQ score of 86, an estimated Performance IQ score of 98, and an estimated Full Scale IQ score of 90, which the evaluators indicated placed the student in the average range of overall cognitive functioning, with nonverbal abilities more developed than verbal skills (Joint Ex. 13 at p. 2). Administration of selected subtests of the Woodcock Johnson Psychoeducational Battery – III yielded a Letter-Word Identification standard (and percentile) score of 87 (20), a Word Attack standard score of 91 (28), and a Passage Comprehension standard score of 80 (9) for a Basic Reading Skills standard score of 89 (24) (Joint Ex. 13 at p. 2-3).
The Yale report noted that analysis of responses by the student's parents and teachers indicated that petitioners' son demonstrated significant difficulty with attention at home and in school (Joint Ex. 13 at p. 5). The evaluators concluded that the student required a "consistent behavioral program in school to address this concern" and that his education program should include "specific provisions for ensuring that he maintains his attention appropriately in the classroom." The Yale report also noted that the student appeared to have "difficulty organizing his work, listening when spoken to directly, attending to details, and sustaining his attention," and recommended that he receive assistance in planning and organizing at the beginning and end of each day to "clarify expectations."
In July 2005, when the student was 14 years old and had completed his third year (eighth grade) at Kildonan, and while the impartial hearing was in progress, he was again evaluated by the neuropsychologist who had evaluated him in 2001 and 2003 (Parent Ex. B). Administration of the Wechsler Intelligence Scale for Children – IV (WISC-IV) yielded composite scores (and percentile rankings) of 95 (37 - average range) in Verbal Comprehension, 110 (75 – high average range) in Perceptual Reasoning, 88 (21 – low average) in Working Memory, 88 (21 – low average) in Processing Speed and a Full Scale IQ score of 95 (37 – average) (Parent Ex. B at p. 16). Although the neuropsychologist again reported that the student's subtest scores "ranged widely, from the 16th to the 95th percentile," she did not conclude, as she had in her 2001 evaluation report, that his performance was indicative of general intellectual ability in the high average range (compare Parent Ex. B at p. 6 with Joint Ex. 9 at p. 8), noting instead that the student's "strengths in abstract reasoning and mental calculations were in the Very Superior Range" (Parent Ex. B at p. 10).
Based upon her review of selected percentile and grade equivalent scores from selected subtests of standardized achievement tests, the neuropsychologist concluded that the student's basic reading skills were at the fifth to sixth grade level, and that his reading comprehension had "improved significantly" since his initial evaluation in December 2001 (Joint Ex. B at p. 10). She also determined that petitioners' son had made "very significant academic progress since he was last seen," and recommended a "specialized educational program with an individualized, small group, multisensory approach" in which assignments were "broken down into small and very specific steps…and accompanied by behavioral incentives." Lastly, the neuropsychologist opined that the student's placement at Kildonan was appropriate.
The impartial hearing officer rendered a decision on February 17, 2006, holding that respondent failed to offer petitioners' son a FAPE, in part, because the composition of the May 2004 and August 2004 CSE meetings failed to include the necessary members (IHO Decision, p. 19). She noted that an eighth grade teacher was not present, and also found that neither meeting included a speech and language therapist, despite a recommendation for that service (id.). Moreover, the impartial hearing officer concluded that CSE members were not provided with copies of evaluative data during either meeting from which to make a determination regarding the student’s IEP (IHO Decision, pp. 20-21). The impartial hearing officer also found that respondent failed to provide a copy of the IEP to petitioners until September 14, 2005, more than one week after the school year began (IHO Decision, p. 22). She also determined that "there was no final recommendation made at the August 9, 2004 CSE meeting" (IHO Decision, p. 23). Based on the foregoing, the impartial hearing officer was "constrained to find that [respondent] failed to provide an appropriate program for [the student]" (id.). The impartial hearing officer found that petitioners failed to prove that Kildonan provided an appropriate program for their son, and as a result, that they were not entitled to tuition reimbursement for Kildonan (IHO Decision, pp. 23, 26).
On appeal, petitioners contend that the impartial hearing officer erred in finding that Kildonan was not an appropriate placement for their son. Accordingly, they seek an annulment of the impartial hearing officer's decision and seek tuition reimbursement for their son's 2004-05 school year at Kildonan. Respondent denies petitioners' claims, asserting that petitioners failed to establish that Kildonan was an appropriate placement. In addition, respondent cross-appeals the impartial hearing officer's finding that a FAPE was not offered to the student for the 2004-05 school year, and argues that petitioners failed to establish that respondent failed to offer a FAPE to the student and that Kildonan is not an appropriate program to meet the student’s needs.
A purpose behind the Individuals with Disabilities in Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487)1 is to ensure that all students with disabilities have available to them a 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 private educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 ; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ; Mrs. C. v. Voluntown Bd. of Educ., 226 F. 3d 60, 66, 68 [2d Cir. 2000]).
To obtain private school reimbursement, there must be a finding by a court or impartial hearing officer that the district "had not made a free appropriate public education available to the child in a timely manner" (20 U.S.C. § 1412[a][C][ii] (emphasis added)). A FAPE is defined in relevant part as special education and related services that "[a]re provided in conformity with an IEP that meets the requirements of Secs. 300.340–300.350" (34 C.F.R. § 300.13[d]). An IEP is a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401; 34 C.F.R. § 300.340[a]; 8 NYCRR 200.1[y]). At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. § 1414[d][A]; see also 34 C.F.R. § 300.342[a]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 [2d Cir. 2005]) (". . . the District fulfilled its legal obligations by providing the IEP before the first day of school."). The regulations in effect specifically direct that a school district must have an IEP in place at the beginning of the school year (34 C.F.R. § 300.342[a]), and that the IEP must be in effect before special education and related services are provided (34 C.F.R. §300.342[b][i]).
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 its cross-appeal, respondent argues that petitioners cannot point to any procedural defect that might indicate that the CSEs which met on May 20, 2004 and August 9, 2004 were inappropriate and that the CSEs considered updated information regarding the student. In response to respondent's cross-appeal, petitioners assert that a valid IEP was not in place at the start of the school year, that the CSEs did not consider timely evaluative data and were improperly constituted, that the CSE did not have goals and objectives in place after either meeting, and that after the August 2004 CSE meeting, the student's placement had yet "to be determined."
In New York State, a CSE meeting must include the parent of the child, at least one regular education teacher of the child (if the child is, or may be participating in the regular education environment), at least one special education teacher of the child or, if appropriate, at least one special education provider of the child, a school psychologist, an additional parent of a student with a disability residing in the district, a representative of the school district who is qualified to provide or supervise the provision of special education, and an individual who can interpret the instructional implications of evaluation results, and persons having knowledge or special expertise regarding the student, and if appropriate, the student (8 NYCRR 200.3[a]).
The IDEA, its implementing regulations, and New York law require that the CSE include "at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment)" (20 U.S.C. § 1414[d][B][ii]; see 34 C.F.R. § 300.344[a]; 8 NYCRR 200.3[a][ii]). The regular education teacher member "shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate behavioral interventions and strategies and the determination of supplementary aids and services, program modifications, and support for school personnel" (20 U.S.C. § 1414[d][C]; see 34 C.F.R. § 300.346[d]; 8 NYCRR 200.3[d]). The regular education teacher must also "participate in discussions and decisions about how to modify the general curriculum in the regular classroom to ensure the child's involvement and progress in the general curriculum and participation in the regular education environment" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 24), and participate in any review and revision of the IEP (20 U.S.C. § 1414[d][B]; 34 C.F.R. § 300.346[d]; 8 NYCRR 200.3[d]). In its official interpretation of the regulations, the U.S. Department of Education explains that the regular education teacher member "should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 26).
The U.S. Department of Education has explained that the purpose behind the regular education teacher requirement is for that teacher to serve a critical role in providing input on modifications and supplementary aids and services that would allow the child to remain in the regular education environment to the maximum extent appropriate (64 Fed. Reg. No. 48, at p. 12591). State Review Officers have found that although a board of education cannot always be expected to know who the student's regular education teacher will be prior to the CSE meeting, it should nevertheless have sufficient information about the student to designate a regular education teacher who is not only appropriately certified to teach the student, but who is also teaching in the subject matter or grade level in one of the programs which might be appropriate for the student (Application of a Child with a Disability, Appeal No. 04-088; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-100, n.1; Application of a Child with a Disability, Appeal No. 02-080; Application of the Bd. of Educ., Appeal No. 02-056; Application of a Child with a Disability, Appeal No. 00-060).
It is well established, however, that the existence of a procedural flaw in the formulation of a student's IEP does not automatically require a finding of a denial of a FAPE (Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-015; see also Grim, 346 F.3d at 381; Pawlet Sch. Dist., 224 F.3d at 69; Evans, 930 F.Supp. at 93-94; Pascarella, 153 F.Supp.2d at 153; Brier, 948 F.Supp. at 1255; Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158. Rather, a denial of a FAPE occurs only if the procedural violation results in a loss of educational opportunity for the child, or seriously infringes upon the parents' opportunity to participate in the process of formulating the IEP, or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP. In this case, petitioners, a parent representative, the CSE chairperson, and a school psychologist attended the May 20, 2004 meeting (Tr. pp. 183, 480-86). A Kildonan representative, a seventh grade regular education teacher from the district, as well as a seventh grade special education teacher from the district also attended this meeting via conference call (Tr. p. 183; Parent Ex. F).
Petitioners, the CSE chairperson, a parent representative, the school psychologist, a seventh grade special education teacher from the district and a seventh grade regular education teacher also from the district attended the August 9, 2004 meeting (Tr. pp. 493-95). Although the CSE met to develop the student's eighth grade program, no eighth grade teachers attended this meeting (Tr. pp. 138, 506). The record indicates that attempts were made to include a representative from Kildonan at that meeting; however, he was unavailable at the time of the August 2004 meeting (Tr. p. 496; Joint Ex. 1; Parent Ex. K at p. 3). Many of the participants at the August 2004 meeting did not participate in the May 2004 meeting (compare Parent Ex. K at p. 3 with Parent Ex. F at p. 3). Specifically, different members in attendance at the August 2004 meeting included the following individuals: a CSE chairperson, special education and general education teachers who taught seventh grade in the district, and a parent member (Tr. p. 170).
I concur with the impartial hearing officer’s finding that the composition of the May 2004 and August 2004 CSE meetings failed to include the required members (IHO Decision, p. 19). The record shows that no one at the August 2004 meeting was able to discuss what programs were available to eighth graders (Tr. p. 498). The contribution from a regular education teacher at the CSE meeting was essential because respondent was recommending mainstream classes for the student (Parent Ex. K). Evidence offered at the impartial hearing showed that petitioners questioned the amount of support their son would receive in math (Tr. p. 542). They questioned how mainstreaming would work (Tr. p. 549). Petitioners also sought more information about the reading program (Tr. p. 548). The teachers who attended the August 2004 meeting could only expound upon programs available to students in the seventh grade (Tr. p. 498). I find that there was a lack of contribution at the May 2004 and August 2004 CSE meetings from a required regular education teacher of the student, who could discuss the specific curriculum requirements, provide input on the modifications and supplementary aides and services to ensure involvement and progress in the general curriculum, and participation in the regular education environment to the maximum extent appropriate, which in turn, significantly impeded parental participation in the formulation of the IEP and denied the student educational benefits.
Moreover, there was no special education teacher present at the August 2004 meeting who might have worked with the student in the upcoming year (Tr. pp. 498, 502). The lack of contribution from a regular and special education teacher at the May 2004 and August 2004 CSE meetings compromised the development of the student’s IEP, significantly impeded parental participation in the formulation of the IEP and denied the student educational benefits.
Even if the CSEs had been properly constituted, I would be constrained to find that the 2004-2005 IEP was deficient.
An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). An IEP must include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a]; see also 8 NYCRR 200.4[d][i][a]). 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, Notice of Interpretation, Section 1, Question 1).
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]; see 8 NYCRR 200.4[d][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]; 8 NYCRR 200.4[d][iii]).
The impartial hearing officer found that the CSE members who attended the May 2004 and August 2004 meetings did not have timely evaluative data before them. I concur. Immediately prior to the May 2004 meeting, the school psychologist gave petitioners the results of the triennial testing that was conducted in May 2004 (Tr. p. 480). No one else at the May 2004 meeting was provided with the results of the triennial testing (Tr. p. 486). The CSEs did not consider a repeat educational evaluation report prepared in October 2003, a speech and language follow-up evaluation conducted in March 2002 or an independent speech and language evaluation conducted in June 2002 (Tr. pp. 167, 176-178).
I also agree with the impartial hearing officer's finding that the 2004-05 IEP for the student was not in place at the beginning of the school year. The record indicates that the 2004-05 school year began around September 6, 2004 (Tr. p. 511). In this case, the IEP at issue was not mailed to petitioners until September 14, 2004, nearly a week and a half after school started (Tr. p. 170). Respondent offers no explanation for its failure to deliver the IEP to the petitioners prior to the commencement of the school year. In fact, the record reflects that petitioners did not receive the IEP until September 15 or September 16, 2004 (Tr. p. 513). Respondent was required to have an IEP in effect for the student at the start of the 2004-05 school year (see 20 U.S.C. § 1414[d][A]; see also 34 C.F.R. § 300.342[a]; Cerra at 194]).
I also concur with the impartial hearing officer’s finding that respondent failed to offer an appropriate program to the student during the August 2004 CSE meeting (see Parent Ex. K). Petitioners testified that a 12:1+1 inclusion program was recommended by respondent's CSE, however, no agreement was reached, because petitioners had a number of unanswered questions about the program (Tr. p. 499). Goals and objectives were also not discussed at this meeting (Tr. pp. 500-501). No eighth grade teachers attended this meeting who might have worked with the student in the upcoming year who could discuss what programs were available to him and how they would be implemented (Tr. pp. 496-98). Similarly, no one in attendance could discuss the reading component of the student’s program (Tr. p. 501). Petitioners left the meeting expecting respondent to provide them with additional information (Tr. p. 501). The evidence shows that when petitioners left the August 2004 CSE meeting, the placement for their son was to be determined (Tr. pp. 499-500; Parent Ex. K). When the meeting ended, petitioners assumed that the CSE would either meet again or communicate with them so that they could make an informed decision (Tr. p. 511). Shortly after the meeting, petitioners sent a letter to the CSE chairperson setting forth their questions about the plan and the outcome of the meeting (Parent Ex. M). Specifically, petitioners questioned who would determine which program respondent would offer, when a placement would be determined, and when they could expect to be notified of a decision (id.). Petitioners further indicated that they learned from Kildonan that respondent had been notified six days before the August meeting that the academic director would not be available to attend (id.). In addition, petitioners were concerned that the 2003 neuropsychological evaluation report, consent form and social history that they had hand delivered to respondent on January 21, 2004 were not available at the August 9, 2004 CSE meeting (id.). Petitioners also requested information on the recommended language arts program, the extent of the teachers' training, and the student-to-teacher ratio of the student's recommended placement options (id.). The student's father testified that respondent did not answer petitioners' letter and did not contact petitioners in order to arrange for another CSE meeting (Tr. p. 511). Based on the foregoing, I agree with the impartial hearing officer's finding that, by failing to offer the IEP prior to the first day of the school year, and by failing to offer an appropriate program to the student, respondent failed to satisfy its legal obligations to him (see Cerra at 194).
Based upon all of the circumstances of the present case, including the improper CSE composition at the May 2004 and August 2004 CSE meetings, the CSE’s failure to consider appropriate evaluative data, and respondent’s failure to timely implement an IEP, I find that respondent failed to offer a FAPE to the student for the 2004-05 school year.3
Having determined that respondent did not offer to provide a FAPE to the student during the 2004-05 school year, I must now consider whether petitioners have met their burden of proving that placement of their son at Kildonan was appropriate (Burlington, 471 U.S. 359; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-080). As noted above, in order to meet that burden, petitioners must show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., that the private school offered an educational program which met the student's special education needs (Application of a Child with a Disability, Appeal No. 04-108; Application of a Child with a Disability, Appeal No. 01-010). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 14; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).
With respect to the second Burlington criterion for an award of tuition reimbursement, the impartial hearing officer determined that petitioners failed to sustain their burden of proving the appropriateness of their unilateral placement. Although sympathetic to petitioners' testimony regarding their son's progress at Kildonan, the impartial hearing officer concluded that the "central question" of the student's progress rested upon test results and progress reports, which she noted were, at best, disappointing (IHO Decision, pp. 23-26). I concur with the impartial hearing officer's conclusion, based upon reports from the private neuropsychologist from Kildonan's teachers, that the student's progress at Kildonan during the 2004-05 school year was "disappointing" (IHO Decision p. 24). However, I do not concur with her conclusion that his minimal progress during 2004-05 while he attended Kildonan was "the central question" (IHO Decision, p. 23) in determining that petitioners failed to sustain their burden of showing that Kildonan was an appropriate placement for their son, as his progress in 2004-05 is not dispositive in determining the appropriateness of this particular placement. In the present case the appropriateness of the placement selected by petitioners can be determined by a review of the student's needs related to his disability and an examination of how Kildonan proposed to address these needs at the time of the unilateral placement. Based on a review of the record, I find that at the time that petitioners continued the student's placement at Kildonan for another year, the program was not appropriately designed and implemented so as to offer an educational program that met their son's special education needs (see, generally, Application of a Child with a Disability, Appeal No. 05-051).
On appeal, petitioners assert that Kildonan is appropriate for the student because the Kildonan curriculum is presented through techniques that address the student's auditory processing problems in classes of six to eight students. Petitioners further assert that the student's deficits were severe, and that he required "'diagnostic and prescriptive' intervention'" and that his needs were met through Kildonan's "holistically different instructional techniques, i.e. multisensory."
The record does not support petitioners' assertion. The Kildonan academic dean testified that teachers met frequently to discuss the student's needs and to identify strategies to meet them, but in testimony he could only identify two very basic strategies used to assist petitioners' son (Tr. pp. 398-99, 402). The academic dean testified that Kildonan did not develop a behavior plan to address the student's difficulty with focus and attention, as recommended by petitioners' private evaluators, relying instead upon seating the student in front of the class (Tr. pp. 398). The record suggests that this strategy was unsuccessful (Joint Ex. 5; Parent Exs. E, U) and the academic dean did not explain how preferential seating would be effective, or even how it would be implemented, in a class of only six to ten students (Tr. p. 422).
Moreover, petitioners' assertion that the multisensory instructional techniques used at Kildonan were "holistically different" is not persuasive. The impartial hearing officer also noted that the petitioners' "total reliance" on Kildonan and its implementation of an Orton-Gillingham program of instruction, to the exclusion of all other services or supports, was misplaced (IHO Decision, p. 25). I agree. While the record reveals that Kildonan relies entirely upon Orton-Gillingham instructional programs and philosophy to address the instruction of reading and language arts, the term "multisensory" is not exclusive to Orton-Gillingham, nor is it exclusive to Kildonan. Although not all special education programs implement Orton-Gillingham, special education strategies traditionally attempt to employ any and all modalities to facilitate instruction, and while an Orton-Gillingham program relies upon multisensory methods of instruction, multisensory methods are implemented in any special education programs that address student needs through a variety of teaching strategies. Further, and of greater concern, despite the student's significant auditory processing deficits which limit his ability to follow verbal directions and/or absorb verbally-presented instructions, Kildonan content area teachers instruct this student, and all students, by reading aloud to them (Tr. p. 404). While these teachers may supplement this strategy with strategies employing other modalities, the record does not include information about strategies at Kildonan that would employ multisensory methods more suitable for a student whose disabilities interfere with instruction through auditory input.
The academic dean also indicated that the student's difficulty in completing assignments was addressed by breaking tasks into smaller components, noting that this was done for all students but was "much more specific" for petitioners' son (Tr. p. 400). The record does not include any information to suggest that additional revisions to this strategy were implemented in a diagnostic and prescriptive manner when the strategy was unsuccessful. No strategies were identified to address the student's difficulties with organization of assignments, which is another area of need identified by petitioners' evaluators (Joint Exs. 9 at p. 8, 13 at pp. 6-7; Parent Ex. C at p. 8). Further, despite significant information in the record describing the student's difficulty in completing assignments, as well as recommendations from petitioners' evaluator regarding the need to reduce his assignment workload (Joint Ex. 9 at p. 8), the academic dean testified that, in his language tutorial alone, the student was required to complete the same one and one half hours per day of homework required for all Kildonan students (Tr. p. 353). The private neuropsychologist's recommendations that demands for copying be reduced (Joint Ex. 9 at pp. 8-9) were similarly disregarded (see Parent Ex. U).
Petitioners note that the academic dean testified that the student was "a perfect fit" for the population at Kildonan (Petition ¶ 38; Tr. p. 361). While petitioners assert that this is further support for the appropriateness of their unilateral placement, I am not persuaded, after reviewing the record as a whole, by this statement by the academic dean. His testimony does not suggest that any aspect of the Kildonan program was individualized to address this student's very severe deficits. As noted by the impartial hearing officer, the record reveals that the primary strategy employed was to exhort the student to "try harder" to meet established expectations by which he would fit the Kildonan program, and that no adjustments were made to the program to ensure that it would fit the student (IHO Decision, p. 24).
In further support of their position, petitioners rely upon reports and testimony from their private neuropsychologist, who recommended that the student "continue at Kildonan, where he seems to be thriving," and who opined that the instruction the student was receiving at Kildonan was "exactly what he needs" (Parent Ex. C at p. 8). I concur with the impartial hearing officer's observations that the neuropsychologist admitted that she had no knowledge of what strategies were employed at Kildonan to address needs which the neuropsychologist herself had identified as critical for the student, and note, as did the impartial hearing officer, that the neuropsychologist's assumptions about how the Kildonan program was individualized for the student were not supported by testimony by the academic dean (see IHO decision, pp. 25-26).
With respect to the second criterion for an award of tuition reimbursement, I find, as did the impartial hearing officer, that petitioners did not demonstrate that placement of their son at Kildonan for the 2004-05 school year was appropriate. As set forth above, petitioners did not demonstrate how Kildonan addressed their son's needs related to his auditory processing deficit, or his difficulties with organization and completing his assignments.
Having determined that petitioners have not met their burden of proving that placement of their son at Kildonan was appropriate for the 2004-05 school year, the necessary inquiry is at an end and there is no need to determine whether equitable considerations support petitioners' claim (M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134;Application of the Bd. of Educ., Appeal No. 05-118; Application of a Child with a Disability, Appeal No. 03-058).
In light of my determination, I need not consider petitioners' and respondent's other challenges to the impartial hearing officer's decision.
THE APPEAL IS DISMISSED.
THE CROSS-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 [IDEA], 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 IDEA 2004 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; see also 34 C.F.R. §300.13; 20 U.S.C. §1414[d].
3 This determination would remain the same if during the impartial hearing the burden of persuasion had been placed on the parents as the parties challenging the IEP, as the Supreme Court recently established in Schaffer v. Weast, 126 S.Ct. 528, 537 (2005). The impartial hearing in the present case began prior to, but concluded after, the issuance of the Schaffer decision on November 14, 2005. (see Application of the Bd. of Educ., Appeal No. 05-120). Although petitioners argue on appeal, that they should not have had the burden of persuasion regarding the first Burlington criterion, counsel for petitioners acknowledged having this burden during the impartial hearing (Tr. p. 577). The impartial hearing officer found that petitioners sustained their burden of proof on this issue (IHO Decision, p. 18). Based upon the record in the present case, regardless of whether petitioners or respondent was deemed to have the burden of persuasion, I would find that the evidence amply demonstrates that petitioners prevail and respondent cannot prevail on the first Burlington criterion.