Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent
Petitioner appeals from the decision of an impartial hearing officer which denied her request to be reimbursed for her son's tuition costs at the York Preparatory School (York Prep) for the 2005-06 school year. The appeal must be dismissed.
Petitioner's son was 13 years old and in the eighth grade at York Prep when the impartial hearing began in February 2006. York Prep is a private school which has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7). The student's eligibility for special education as a student with an other health impairment (OHI) is not in dispute in this proceeding (8 NYCRR 200.1[zz]).
The student attended kindergarten at respondent's PS 51, after which his parents enrolled him in a private school for the first and second grades (Tr. p. 87). The student returned to public school when he entered the third grade and attended respondent's PS 24 through the fifth grade (id.). When the student was in the third grade, petitioner was contacted by the school guidance counselor and advised that although he was on grade level there were concerns involving her son's difficulty completing tasks, distractibility, and disorganization (Tr. p. 88). Petitioner participated in a meeting with the principal of PS 24, the student's guidance counselor, and also with his third grade teacher (Tr. pp. 88-89). Subsequent to this meeting, the student was provided with additional assistance from his teacher and guidance counselor to address these concerns (id.).
The following year at a parent teacher conference, the student's fourth grade teacher reported to petitioner that the student was "slower" than the other students (Tr. p. 89). However, when the teacher refocused him, he was able to remain on task (id.). While the student was in the fourth grade, petitioner had her son privately evaluated at the New York University (NYU) Child Study Center and received recommendations that included use of a keyboard for longer assignments, extended time for tests, use of a daily report card, and the use of motivators to help the student attend to tasks, complete his assignments, and stay organized (Tr. pp. 89-91). The student was reported to be successful following the implementation of these recommendations and was promoted into an honors class for the fifth grade, at which time he again began to exhibit distractibility and inattention (Tr. p. 92).
When the student was ten and a half years old and in the fifth grade at respondent's PS 24 petitioner had her son privately evaluated by a psychologist (Dist. Ex. 5 at p. 1; Tr. p. 93). The evaluation was conducted over several days between November 2002 and January 2003 (Dist. Ex. 5 at p. 1). Administration of the Wechsler Intelligence Scale for Children - III (WISC – III) yielded a verbal IQ score of 122, a performance IQ score of 104, and a full scale IQ score of 114 placing the student in the high average range of intellectual functioning (Dist. Ex. 5 at p. 7). The student's subtest scores within the verbal domain of the WISC – III ranged from high average to superior (Dist Ex. 5 at p. 2). Within the performance domain of the WISC – III, the student's subtest scores ranged from the ninth to the 84th percentiles, and he demonstrated difficulty with efficiency, organization, and processing speed (Dist. Ex. 5 at pp. 2-3). The student tended to forsake speed for accuracy and when demands were more complex and he was required to attend to information on several different levels, as well as structure the task for himself, the student became overwhelmed (Dist. Ex. 5 at p. 3). The student also demonstrated deficits in organizational skills, visual-motor coordination and processing speed (Dist. Ex. 5 at p. 4). The evaluator opined that the 18-point discrepancy between the student's verbal and performance IQ scores, along with the scatter of subtest scores within the test, rendered the summary scores poor indicators of the student's overall functioning and ability (Dist. Ex. 5 at p. 2).
Administration of the NEPSY: A Developmental Neuropsychological Assessment, yielded standard (and percentile) scores of 13 (84) for verbal fluency, 12 (75) for speeded naming, 8 (25) for comprehension of instructions, 8 (25) for visual attention, 8 (25) for design copy, and 7 (16) for visuomotor precision (Dist. Ex. 5 at p. 8). The student demonstrated strong verbal fluency and adequate speeded naming abilities with some difficulties noted with auditory attention and processing as instructions involved more steps (id.). Administration of the Wide Range Assessment of Memory and Learning (WRAML) yielded standard (and percentile) subtest scores of 10 (50) for verbal learning, 8 (25) for story memory, 7 (16) for picture memory, and 13 (84) for design memory (id.).
The student demonstrated some attention difficulties, impulsivity, and poor vigilance on the Conners' Continuous Performance Test (CPT – II) which the evaluator determined were not clinically significant and opined the student demonstrated the capacity for adequate attention and concentration when given structure (Dist. Ex. 5 at p. 3).
On the Wechsler Individual Achievement Test – Second Edition (WIAT-II), the student achieved standard (and percentile) subtest scores of 109 (73) for word reading, 118 (88) for reading comprehension, 113 (81) for pseudoword decoding, 130 (98) for numerical operations, 111 (77) for spelling, and 99 (47) for written expression (Dist. Ex. 5 at p. 7). On the Woodcock-Johnson III Tests of Achievement (WJ III) the student achieved standard (and percentile) scores of 95 (37) for reading fluency and 93 (33) for math fluency (id.). The evaluator opined that although some of the student's academic achievement scores were at grade level in a structured testing environment, his difficulties with organization and processing negatively impacted him in school when demands increased in complexity and ambiguity, and external structure decreased (Dist. Ex. 5 at p. 4). The student expressed some concern to the evaluator regarding his difficulties in school but denied anxiety or sadness and presented to the evaluator as a well-adjusted boy who felt confident despite acknowledgement of difficulties at times (id.). The evaluator made recommendations to be implemented in school and also recommended the student work with a cognitive remediation specialist (Dist. Ex. 5 at p. 5). He also recommended the student use a daily planner with oversight provided by the remediation specialist, use a word processor, be provided with extended time for exams and in-class assignments, and receive periodic re-evaluations of his cognitive and educational needs (Dist. Ex. 5 at p. 6).
Petitioner subsequently obtained services for her son from a private psychologist that included assisting petitioner and her son to understand the results of prior evaluations, behavior therapy to help her son improve his attention and organization, and consultation with her son's teacher (Tr. p. 95). In April 2003, the private psychologist contacted the principal at PS 24 by letter and recommended a plan pursuant to Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §§ 701-796[l] ) for the student as well as a referral to the Committee on Special Education (CSE) (Tr. p. 94).
Petitioner referred her son to respondent's division of special education school based support team on approximately June 20, 2003 and requested that her son be provided with a consultant teacher or resource room services, extended time on tests, occupational therapy (OT) and use of a word processor (Dist. Ex. 4).
Respondent's CSE convened on July 23, 2003 for the requested review and to develop the student's individualized education program (IEP) for the 2003-04 school year, when he would be in the sixth grade (Dist. Ex. 3). The record is not clear whether this was the initial review of the student by the CSE. The student was noted to exhibit difficulties with organizational skills, processing speed, and visual-motor coordination, as well as difficulty sustaining attention (Dist. Ex. 3 at p. 4). The CSE classified the student as OHI and recommended that for the 2003-04 school year he be placed in general education for all areas of instruction with five periods per week of direct special education teacher support services (SETSS) (Dist. Ex. 3 at pp. 10, 12; Dist. Ex. 13 at p. 4). The CSE also recommended that the student receive individual OT one time per week for 30 minutes (Dist. Ex. 3 at pp. 10, 12). The student's IEP contained goals and objectives related to his study and organizational, and writing skills (Dist. Ex. 3 at pp. 8-9), as well as preferential seating, extended time for tests, and the provision of projects that related to his interests (Dist. Ex. 3 at pp. 4-5, 12).
In a letter dated August 6, 2003, the private psychologist working with the student indicated that the student met the criteria for an attention-deficit/hyperactivity disorder, predominately inattentive type, as well as a disorder of written expression (Dist. Ex. 6 at p. 1). He further indicated that although the student was intellectually capable of "handling" advanced material, his deficits prevented him from doing so in a traditional classroom setting (Dist. Ex.6 at p. 2). He recommended a small class setting for the student, with teachers knowledgeable in facilitating learning in children with deficits similar to those of the student (id.).
Petitioner rejected the CSE's recommended program and unilaterally placed her son in York Prep and its Jump Start program (Jump Start) for the 2003-04 school year (Dist. Ex. 13 at p. 4). Jump Start is described as a program that enables students with different learning styles or specific learning disabilities to function successfully in an academically challenging mainstream setting (Parent Ex. I at p. 3). Petitioner requested an impartial hearing challenging the program recommended for her son for the 2003-04 school year (Dist. Ex. 13 at p. 4). The impartial hearing officer in that proceeding found that respondent had failed to provide the student with an appropriate placement for the 2003-04 school year, that the parental placement at York Prep was appropriate, and that equitable considerations supported the request for reimbursement (Dist. Ex. 13 at pp. 4-5). Respondent was ordered to reimburse petitioner for tuition expenses including the cost of the Jump Start (id.). Respondent did not appeal from the impartial hearing officer's decision.
Respondent's CSE convened on May 21, 2004 for the student's annual review and to develop his IEP for the 2004-05 school year, when the student would be in the seventh grade (Dist. Ex. 2). By teacher estimates, the student's reading and writing skills were at the seventh grade instructional level and his math skills were at the eighth grade instructional level (Dist. Ex. 2 at p. 3). The student was described as hard working and motivated to do well, however his attention and focus were inconsistent (Dist. Ex. 2 at p. 4). His organization skills were reported to be improved but he continued to have difficulty staying on task and self-regulating his behavior, which resulted in occasional impulsivity (id.). The CSE recommended that the student be placed in general education for all areas of instruction with three periods per week of direct SETSS outside the classroom, and two periods per week of direct SETTS within the classroom, as well as one period of indirect service for consultation between the special and general education teachers (Dist. Ex. 2 at p. 7). The CSE also recommended that the student receive counseling in a small group one time per week for 30 minutes and individual OT two times per week for 30 minutes (Dist. Ex. 2 at p. 9). The student's proposed IEP contained goals and objectives related to his study and organizational skills, written expression, and social/emotional needs as well as fine motor goals and corresponding objectives (Dist. Ex. 2 at pp. 6A-E). The proposed IEP also included preferential seating and teacher cues to refocus the student (Dist. Ex. 2 at p. 3). In addition, the proposed IEP provided for extended time for testing in a group of no more than eight students (Dist. Ex. 2 at p. 12).
Petitioner rejected the CSE's recommended program and unilaterally re-enrolled her son in York Prep and its Jump Start program for the 2004-05 school year (Dist. Ex. 13 at p. 5). The student's parents requested an impartial hearing seeking tuition reimbursement for the 2004-05 school year (Dist. Ex. 13 at p. 6). At the impartial hearing, respondent conceded that it was unable to meet its burden of proving the appropriateness of its recommended program and that equitable considerations supported the student's parents' request for tuition reimbursement (Dist. Ex. 13 at pp. 4). The impartial hearing officer in that proceeding ordered respondent to reimburse the student's parents for their tuition expense for the student's attendance in the Jump Start program (Dist. Ex. 13 at p. 7). Respondent did not appeal from the impartial hearing officer's decision.
The student was reported to be in the "honors track" when he was in the seventh grade at York Prep (Tr. pp. 59, 97). A January 2005 academic report indicated the student's grades ranged from 85 to 97 (Dist. Ex. 10). An observation of the student at York Prep was completed by respondent on January 28, 2005 (Parent Ex. G). The student was observed in a math class and was reported to be attentive to the instruction for the entire lesson (id.). He exhibited understanding of the teacher's directions and completed the class assignments accurately (id.).
On March 19, 2005 respondent conducted an OT evaluation of the student (Parent Ex. H). Petitioner reported to the evaluator that her primary concern for the student was for him improve his handwriting (Dist. Ex. 9 at p. 1). The evaluator noted the student exhibited an adequate attention span for completion of the testing, as well as adequate muscle tone, equilibrium, eye hand coordination, ocular motor function, and motor planning (Parent Ex. H at pp. 1-3). The student exhibited deficits in grasp, pencil control, writing, and tactile skills (Parent Ex. H at p. 4). The student was recommended to receive OT on an individual basis two times per week for 30 minutes to address his identified needs (Parent Ex. H at p. 4).
Narrative notes from the student's teachers in April 2005 indicated the student participated meaningfully in class, demonstrated understanding of the material, and demonstrated proper classroom behavior (Dist. Ex. 8). He submitted his homework on time and came to class prepared (Dist. Ex. 8 at pp. 1, 2). The student occasionally required refocusing in class and at times had difficulty working in a group (id.). The Jump Start teacher reported improvement in the student's behavior and indicated he was more focused and able to recognize when he was not being productive (Dist. Ex. 8 at p. 3). The student's focus in Jump Start had been on remediation of his grammar skills and on development of appropriate peer interactions (id.). His teacher reported the student needed to learn how to use the graphic organizers assigned by the classroom teachers (id.). At the completion of the 2004-05 school year the student's grades ranged from 84 to 92 and he had been appointed to the "headmaster's list" (Parent Ex. H at p. 4; Tr. pp. 59, 97). The student was to "graduate" from the Jump Start special education program at the end of the 2004-05 school year (Dist. Ex. 8 at p. 3).
Respondent's CSE convened on May 23, 2005 for the student's annual review and to develop his IEP for the 2005-06 school year, when the student would be in the eighth grade (Dist. Ex. 1). By teacher estimate, the student's reading, writing, and math skills were at the 8.9 grade instructional level (Dist. Ex. 1 at p. 3). He was described as a strong student, in the high average range of cognitive functioning, who was somewhat socially immature (Dist. Ex. 1 at pp. 3-4). The student exhibited problems with attention, and his organizational needs included use of graphic organizers (Dist. Ex. 1 at p. 3). The CSE recommended that for the 2005-06 school year, the student be placed in general education for all areas of instruction with five periods per week of direct SETSS outside of the classroom and one period per week of indirect service for consultation between the special and general education teachers (Dist. Ex. 1 at p. 12). The CSE also recommended the student receive counseling in a small group one time per week and individual OT two times per week for 30 minutes (Dist. Ex. 1 at p. 13). The student's proposed IEP contained goals and objectives related to study and organizational skills, written expression, and social/emotional needs as well as handwriting goals and corresponding objectives (Dist. Ex. 1 at pp. 6A-E). The proposed IEP also included extended time for testing in a group of no more than eight (Dist. Ex. 1 at p. 13).
Subsequent to the May 23, 2005 CSE, petitioner had a private psychologist from the NYU Child Study Center perform a neuropsychological and educational evaluation of her son over several days in May and June 2005 (Parent Ex. F). Administration of the WISC-IV yielded a verbal comprehension score of 119, a perceptual reasoning score of 125, a working memory score of 107, a processing speed score of 88 and a full scale IQ score of 116, placing the student in the high average range of intellectual functioning (Parent Ex. F at p. 12). On the WIAT-II, the student achieved a reading composite standard score of 115, a mathematics composite standard score of 131, and a written language composite standard score of 113 (Parent Ex. F at p. 12). Selected subtests of the WJ III were also administered to the student (Parent Ex. F at p. 13). He achieved standard (and percentile) scores of 88 (22) for reading fluency, 84 (15) for writing fluency, and 77 (6) for handwriting (id.). The student demonstrated well-developed reading abilities but was slow to complete reading tasks (Parent Ex. F at p. 4). The student also exhibited limitations in the mechanical aspects of writing; his handwriting was immature with significant variability in size and horizontal alignment and his writing speed was slow (Parent Ex. F at p. 5).
In addition to questionnaires completed by the student's teachers and parents, the Delis-Kaplan Executive Function System (D-KEFS) and the Conners' Continuous Performance Test (CPT) were administered to assess the student's attention and executive function (Parent Ex. F at pp. 2, 5, 14). On the teacher rating scales, the student's scores for inattention, hyperactivity, and impulsivity were in the normal range; however reports from school suggested variable attention and distractibility (Parent Ex. F at p. 5). Parent questionnaires indicated sub-clinical elevations on measures of attention, problems with reports of daydreaming, and frequent inattention (id.). Formal testing yielded variable attention over time and the student exhibited difficulty attending independently when conditions were less engaging (id.).
Although the student's standard scores on the D-KEFS were in the average range of performance, his Jump Start teacher rated him to be within the clinically significant range on measures of inhibiting impulsive responding, regulating emotional responses such as frustration, and self-monitoring of behavior and task performance (Parent Ex. F at p. 6). Parent ratings of these skills suggested normal functioning at home except for mild problems (id.).
The student achieved scores in the average range for visual-motor integration and visual perception as measured by the Beery-Buktenica Developmental Test of Visual-Motor Integration (VMI) (Parent Ex. F at p. 15). The student's paper and pencil copying of various geometric shapes was within normal limits, but he demonstrated difficulty with more complex copying tasks due to lack of an effective, well planned approach (Parent Ex. F at p. 7).
The BASC: Behavior Assessment System for Children (BASC) Self-Report and the Achenbach Teacher Rating Form were administered to assess the student's social and emotional functioning (Parent Ex. F at p. 15). The student did not report a significant degree of difficulty with personal adjustment (Parent Ex. F at p. 7). Social difficulties were reported by his teachers but not across all school settings and appeared to be associated with poor self-monitoring and awareness (id.).
The evaluator's report included three pages of very specific recommendations for the student (Parent Ex. F at pp. 9-11). The evaluator indicated the student would function best in a smaller classroom environment or, at a minimum, he required support services such as a daily resource room to gather and review information he missed in class and to strengthen his study skills, planning, and organization (Parent Ex. F at p. 9). The special education teacher would need to coordinate closely with the student's classroom teachers to apprise them of the student's strengths and weaknesses and to assist them in understanding the student's learning needs (id.).
By letter dated July 13, 2005 petitioner rejected the CSE's recommended program asserting that the class size was too large and the student population did not have academic deficits similar to her son (Dist. Ex. 7). Petitioner informed respondent that the student would continue in his unilateral placement at York Prep (id.).
By letter dated August 30, 2005, petitioner requested an impartial hearing challenging the appropriateness of the program the CSE recommended for her son for the 2005-06 school year (Parent Ex. A). She asserted that her son required a "small inclusion program with special education support services in order to benefit from instruction" (Parent Ex. 1 at p. 2). The impartial hearing was held over two days, February 6 and March 17, 2006. The impartial hearing officer rendered a corrected decision on May 8, 2006. He found that respondent failed to include a regular education teacher at the May 2005 CSE meeting in violation of applicable law and regulation which adversely affected petitioner's opportunity to determine whether the program was appropriate for her son. Accordingly, the impartial hearing officer found that the student was denied a free appropriate public education (FAPE). The impartial hearing officer also found that tuition reimbursement was not warranted.
Petitioner appeals from that part of the impartial hearing officer's decision which determined, inter alia, that she failed to show that the program offered at York Prep was appropriate. She asserts that the impartial hearing officer misinterpreted, misconstrued or did not give proper weight to certain witnesses and that he misapplied the law to the facts presented. Respondent does not appeal or cross-appeal from any part of the impartial hearing officer's decision.
One of the purposes 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 FAPE (20 U.S.C. § 1400[d][A]; Schaffer v. Weast, 126 S. Ct. 528, 531 ). 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).2
A board of education may be required to reimburse parents for their expenditures 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 ; 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 (Burlington, 471 U.S. at 370-71). "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" (id.).
The first step is to determine whether the district offered to provide a FAPE to the student (see M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]). A FAPE is offered to a student when (a) the board of education complies 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, 206-07 ). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]). The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer, 126 S. Ct. at 537).
An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of the Dept. of Educ., Appeal No. 06-029; 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).
As noted above, the impartial hearing officer determined that respondent failed to offer a FAPE to petitioner's son. As part of its answer, respondent interposes a defense alleging that the placement recommended by the CSE at the May 2005 meeting provided the student with a FAPE. However, respondent neither appeals nor cross-appeals from the impartial hearing officer's determination that it failed to offer petitioner's son a FAPE for the 2005-06 school year. Inasmuch as respondent has neither appealed nor cross-appealed from that part of the impartial hearing officer's decision, it is final and not subject to review (34 C.F.R. §300.510[a]; 8 NYCRR 200.5[j][v]; see also Application of a Child with a Disability, Appeal No. 06-008; Application of a Child with a Disability, Appeal No. 06-001; Application of a Child with a Disability, Appeal No. 05-070; Application the Bd. of Educ., Appeal No. 04-016; Application of the Bd. of Educ.,Appeal No. 03-001; Application of a Child with a Disability, Appeal No. 03-002; Application of a Child with a Disability, Appeal No. 03-024; Application of a Child with a Disability, Appeal No. 03-105; Application of a Child with a Disability, Appeal No. 02-097; Application of a Child with a Disability, Appeal No. 01-053). Petitioner, therefore, has prevailed with respect to the first criterion for an award of tuition reimbursement.
Having determined that petitioner prevailed with respect to the first criterion for an award of tuition reimbursement, I will now consider whether petitioner has met her burden of proving that placement of her son at York Prep was appropriate (Burlington, 471 U.S. 359; Application of a Child with a Disability, Appeal No. 06-030; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-080). In order to meet her burden, petitioner must show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370; see Frank G. v Bd. of Educ. of Hyde Park, --- F.3d ---, 2006 WL 2077009, *6 (2d Cir. July 27, 2006); Application of a Child with a Disability, Appeal No. 04-108; Application of a Child with a Disability, Appeal No. 01-010). A parent's failure to select a program approved by the state in favor of an unapproved option is not, itself, a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).
Petitioner argues that the program offered at York Prep is tailored to meet her son's needs as prescribed by his IEP and by the private psychoeducational evaluation conducted in May and June 2005, and that the services provided to her son at York Prep were derived from his IEP (Pet. pp. 3, 5). As noted above, the private psychologist who evaluated petitioner's son determined that the student exhibited deficits in processing speed, reaction time, task execution speed, writing speed, handwriting, and executive functioning that continued to affect his attending skills, organizational skills, written expression, handwriting, and social emotional functioning (Parent Ex. F at pp. 2, 5, 8, 9, 10, 11). The May 2005 IEP identified deficits in written expression, attention, focusing, social skills, handwriting, and organization (Dist. Exs. 1 at pp. 3, 4, 5, 6A-C).
York Prep is a traditional, co-educational college preparatory day school for grades six through 12 (Parent Ex. I). Class sizes range from 10 to 15 students with math and language classes typically smaller (Tr. p. 61). The psychologist at York Prep testified that for the 2005-06 school year, the student was not enrolled in the Jump Start special education program (Tr. pp. 23-24), but was participating in a traditional eighth grade curriculum in the "honors track" (Tr. pp. 59-60). The psychologist at York Prep further testified that he reviews the files of each student, identifies "weaknesses," and suggests various "accommodations" (Tr. pp. 83-84). He identified that petitioner's son had weakness in organization, planning, processing speed, written expression as well as "some inattention", and suggested accommodations including the use of a daily planner, extended time for taking tests, redirection and refocusing in class, and preferential seating (Parent Ex. R).
The York Prep psychologist also testified how the student's teachers provided the suggested accommodations. He stated that the student's English teacher at times redirected the student, particularly at the start of class and repeated instructions directly to him when necessary (Tr. pp. 81-82). The student's math teacher seated him in the front of the room and provided him with redirection, often needing to "settle him down" at the start of class (Tr. p. 82). In science, the student was seated in the front of the room and the teacher regularly checked the student's planner, occasionally redirected him and occasionally provided him with extended time for tests (Tr. p. 82). The student's foreign language teacher seated him in the front of the room, provided him with frequent redirection and on occasion, extended time for tests (Tr. p. 82). She also checked the student's planner (Tr. p. 82).
The psychologist at York Prep further testified that the student's first quarter grades averaged 87 percent and his second quarter grades averaged 91 percent (Tr. p. 59). The student's teachers generally reported that the student arrived to class prepared, adequately completed homework and other assignments, was a willing participant in class discussions, and asked questions in order to clarify information for himself (Parent Ex. P at pp. 2-3). The student's foreign language teacher reported that the student tended to not pay attention in class, although she rated his performance as satisfactory (Parent Ex. P at p. 2).
Petitioner's private psychologist testified that the program at York Prep was appropriate for the student because it provided the level of stimulation the student required and the small setting was less distracting and provided more opportunities for the student to have things repeated and clarified (Tr. p. 17). The private psychologist opined the student was not "ready" to participate in general education in the public school for the 2005-06 school year and due to his continued deficits in processing speed, reaction time, task execution speed, writing speed, handwriting, and attentiveness, the student would likely regress, as well as be vulnerable to the difficulties with mood he had exhibited in the past (Tr. pp. 25-28). The private psychologist indicated that York Prep differed from other private schools in that the teachers at York Prep were made aware of students' needs and were able to intervene if students encountered problems and follow up services from Jump Start were also available (Tr. p. 44-45).
While the record shows that York Prep identified some of the student's weaknesses and includes some general information regarding how teachers at York Prep provided the accommodations suggested by its psychologist, there is insufficient information in the record to show how York Prep addressed the student's special education needs.
The record shows that at the completion of the 2004-05 school year, petitioner reported that her son was doing well behaviorally, but that he exhibited social difficulties at times stating that he "talks loudly, does not always get along with his peers, and often feels like a social outcast" (Parent Ex. F at p. 1). The York Prep special educator who had worked with the student during the 2003-04 and 2004-05 school years rated the student to be within the clinically significant range on measures of inhibiting impulsive responding (96th percentile), regulating emotional responses such as frustration (98th percentile), and self-monitoring his behavior and task performance (95th percentile) (Parent Ex. F at p. 6). The special educator reported that the student did not demonstrate self-awareness and had difficulty regulating his behavior independently (Parent Ex. F at p. 2). She stated that he was easily excitable and that his tone and volume could be "off-putting" in social settings with his peers, leading him to be socially isolated at times (Parent Ex. F at p. 2).
The record further shows that the private evaluator and the CSE noted the student's deficits in social/emotional functioning. To address the student's social/emotional needs, specifically self-monitoring behaviors, the private psychologist recommended the use of behavior modification techniques including development of goals for the student, prompting to remind him of the goals prior to situations in which he is most vulnerable, and positive reinforcement (Parent Ex. F at p. 11). The May 2005 IEP recommended that the student receive counseling in a small group to address the student's frustration tolerance in academic and social situations, his awareness of the cause and effect relationships in social situations, his impulsivity, and his response to new tasks or unexpected changes in his routine (Dist. Ex. 1 at p. 11). Despite the reports from the special educator at York Prep and the recommendations from the private psychologist, York Prep did not identify the student's social/emotional functioning as a deficit and the record does not establish how York Prep addressed this need.
In addition, the record shows that the student's handwriting was determined to be generally immature with significant variability in size and horizontal alignment (Parent Ex. F at p. 5). Three independent raters placed the student's handwriting ability well below expected for his age (sixth percentile) (Parent Ex. F at p. 5) and petitioner had expressed concern to respondent's OT regarding her son's handwriting (Dist. Ex. 9 at p. 1). The student's writing speed was in the 15th percentile (Parent Ex. F at p. 5). To address the student's weaknesses in handwriting speed and mechanics, the private psychologist recommended the student receive direct instruction in approaches for copying complex visual information from the board or other situations requiring copying as well as for reproducing and recalling such information (id.). Additionally, he recommended that the student should receive copies of class notes from the teacher or photocopied from another student (Parent Ex. F at p. 9). He further recommended that although OT may be helpful to improve the student's handwriting speed and legibility, the student develop keyboarding skills and rely on word processing for writing activities (id.). The May 2005 IEP recommended OT and included goals and corresponding objectives related to improvement of the student's handwriting abilities (Dist. Ex. 1 at p. 10). The record does not establish that York Prep identified handwriting as a deficit or how it addressed such need.
Further, while York Prep identified the student's written expression as a weakness, the record does not show how such weakness was addressed at York Prep. The private psychologist noted that the student over-relied on simple sentence structure, did not elaborate his ideas, and did not provide information to back up his arguments (Parent Ex. F at p. 5). He further noted that the student's essay contained only one paragraph and did not contain any linking words or phrases to flow from one idea to the next (Parent Ex. F at p. 5). He recommended that the student be taught specific strategies to present written information in an organized manner, to write more complex sentence structures, and to elaborate on his ideas (Parent Ex. F at p. 10). These strategies included visual mapping techniques and the use of computer software designed for this purpose, use of "linking words" between sentences and paragraphs, and brainstorming techniques (id.). The May 2005 IEP included a goal for the student to produce a six paragraph report (Dist. Ex. 1 at p. 9). Corresponding objectives addressed development of an outline that included "pivotal phrases" and supporting details; development of a "draft" report based on the outline; and, editing and revising techniques (id.). The proposed IEP also included a goal and corresponding objectives related to proofreading and editing skills (id.).
Similarly, while York Prep identified the student's weaknesses in processing speed and attending, there is little specific information in the record to show how it addressed such deficits. Petitioner's private psychologist recommended the student be taught strategies to manage lengthy or complex information including dividing the information into smaller related units, creating an outline of the information to be learned, and repetition of the information (Parent Ex. 5 at 5). The May 2005 IEP recommended the use of organizational techniques to categorize written information and corresponding objectives related to highlighting information in textbooks and organization of his notebook to include division of subject areas and subdivisions of study facts (Dist. Ex. 1 at 6).
Based on the information before me, I find that the record does not establish that York Prep was appropriate to meet the student's special education needs for the 2005-06 school year. Having decided that the petitioner has failed to meet the second criterion for an award of tuition reimbursement, the necessary inquiry is at an end (see Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]), and I need not reach the issue of whether equitable considerations support her claim.
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 [IDEA 2004], Pub. L. No. 108-446, 118 Stat. 2647). The relevant events in the instant appeal relating to the development and substance of the May 23, 2005 IEP took place prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEA 2004 do not apply to the development or substance of the IEP.
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 stands 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) (see 34 C.F.R. § 300.13; 20 U.S.C. § 1414[d]).