Application of a CHILD WITH A DISABILITY 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, John Hewson, Esq., of counsel
Petitioners1 appeal from the decision of an impartial hearing officer which denied their requests for respondent to pay for the student's tuition costs for a program at the Lindamood-Bell Learning Processes Center (Lindamood-Bell) and for respondent to pay for transportation costs associated with the program. Petitioners also appeal the impartial hearing officer's declination to award reimbursement for a private evaluation. The appeal must be dismissed.
At the time of the impartial hearing, the student was 18 years old and not attending school (see Pet. ¶ 2). The student last attended school in June 2004 (Tr. p. 42). The most recent individualized education program (IEP) that was made a part of the record is dated January 2, 2002 and indicates that the student was classified as a student with a learning disability (Parent Ex. F at p. 1). The student's eligibility for special education programs and services as a student with a learning disability is not in dispute in this appeal (see 8 NYCRR 200.1[zz]).
On January 2, 2002, when the student was in eighth grade (Tr. p. 54), respondent's Committee on Special Education (CSE) met (Parent Ex. F at p. 1) to plan for the remainder of the 2001-02 school year and for the first half of the 2002-03 school year, when she would be entering high school (see Tr. pp. 56-58). The January 2, 2002 CSE recommended that the student be classified as a student with a learning disability and attend a 15:1 special class with bilingual instruction in Spanish for the remainder of the 2001-02 school year (Parent Ex. F at pp. 1, 2, 9). Respondent's CSE also recommended that the student attend a 12:1 special class with bilingual instruction in Spanish beginning in September 2002 (Parent Ex. F at pp. 1, 9; Tr. p. 57). Test accommodations included providing double time and having directions read and re-read aloud (Parent Ex. F at p. 11). The student's educational program was scheduled to be reviewed by January 2, 2003 (Parent Ex. F at p. 2). The record is very sparse regarding the 2002-03 and 2003-04 school years. However, it appears that the student attended general education classes in high school. The record does not indicate that there was any IEP created for the student after January 2, 2002 (see IHO Decision, p. 2; see also Pet. ¶ 2).
On January 10, 2006, when the student was 18 years old, staff at Lindamood-Bell evaluated her (see Parent Exs. A, B). Administration of the Peabody Picture Vocabulary Test- III (PPVT-III), a measure of receptive vocabulary (Tr. p. 13), resulted in a standard score (SS) of 76 (5th percentile) and an age equivalent score of ten years (Parent Ex. B at p. 1). Administration of the word opposites subtest of the Detroit Tests of Learning Aptitude-A (DTLA-Adolescent) resulted in a SS of 4 (2nd percentile) (id.). Administration of the Detroit Tests of Learning Aptitude verbal absurdities subtest resulted in a mental age score of nine years (id.). Administration of the Detroit Tests of Learning Aptitude-2 oral directions subtest resulted in a SS of 9 (37th percentile) (id.). Administration of the Test of Problem Solving-Adolescent (TOPS-Adolescent) resulted in a SS of <55 (1st percentile) and an age equivalent of <11-4 (id.). Administration of the Woodcock Reading Mastery Test-NU word attack subtest resulted in a SS of 81 (10th percentile) and a grade level score of 4.4 (id.). Administration of the Slosson Oral Reading Test-R resulted in a SS of 87 (21st percentile) and a grade level score of 7.4 (id.). Administration of the Wide Range Achievement Test-3 (WRAT-3) resulted in the student achieving a SS of 72 (3rd percentile) and fourth grade level for reading (id.), a SS of 73 (4th percentile) and fourth grade level for spelling, and a SS of 70 (2nd percentile) and fourth grade level for arithmetic (Parent Ex. B at p. 2). Administration of the Gray Oral Reading Test resulted in a grade level of 4.6 (id.). Administration of the Gray Oral reading Test-4 resulted in a SS of 4 (2nd percentile) and 4.7 grade level score for rate, a SS of 5 (5th percentile) and 6.0 grade level score for accuracy, a SS of 2 (<1st percentile) and 5.4 grade level score for fluency, and a SS of 5 (5th percentile) and 7.0 grade level score for comprehension (id.). Administration of the Lindamood Auditory Conceptualization Test-3 resulted in a SS of 77 (6th percentile) and a 4.4 grade level (id.).
Petitioners requested an impartial hearing on February 26, 2006. In March 2006, respondent reportedly evaluated the student (Tr. p. 41), but no details of that evaluation were provided for the record.
The impartial hearing was held on May 11, 2006. At the impartial hearing, respondent contended that the student should return to school to complete her high school program and graduate, while the student contended that respondent should pay for the Lindamood-Bell private evaluation and pay for her to attend a program at Lindamood-Bell so that she could acquire the basic skills she needed to complete a General Education Diploma (GED) program in preparation for college (IHO Decision, p. 2; Tr. pp. 40-41). The impartial hearing officer rendered her decision on June 5, 2006. The impartial hearing officer found that petitioners failed to meet their burden of demonstrating that respondent's recommendation, made at the hearing, that the student return to its district school was inappropriate (IHO Decision, p. 5). However, the impartial hearing officer also found that respondent did not have current assessments of the student's academic functioning and, therefore, "remanded" the matter to the CSE to conduct "a complete set of evaluations" to allow it to make an appropriate recommendation for the student (IHO Decision, p. 6).
Petitioners contends on appeal that the impartial hearing officer failed to consider the "issue of compensatory education for the two years" that she was "wrongly placed in general education classes" during the 2002-03 and 2003-04 school years (Pet. ¶¶ 5, 9)2
A central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1482)3 is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (Frank G. v. Bd. of Educ., 459 F.3d 356, 363 [2d Cir. July 27, 2006]; see Schaffer v. Weast, 126 S. Ct. 528, 531 ; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-181, 200-201 ; 20 U.S.C. § 1400[d][A]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[D]; see 20 U.S.C. § 1414).4 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 (Rowley, 458 U.S. at 206, 207). 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 (Schaffer, 126 S. Ct. at 537).
The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][E][i]). School districts are of course also required to comply with all IDEA procedures, but not all procedural errors render an IEP legally inadequate (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits to the child (20 U.S.C. § 1415[f][E][ii]; see 8 NYCRR 2005[j][ii]).
Both the Supreme Court and the Second Circuit have noted that the IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP (Rowley, 458 U.S. at 189; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 122, 130 [2d Cir. 1998]), although the Supreme Court has specifically rejected the contention that the "appropriate education" mandated by IDEA requires states to maximize the potential of handicapped children (Rowley, 458 U.S. at 197 n.21, 189). Thus, a state satisfies the FAPE standard "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). The Second Circuit has determined that "a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression' and if the IEP affords the student with an opportunity greater than mere "trivial advancement" (Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 [2d Cir. 2005], quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]), in other words, likely to provide some "meaningful" benefit (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see also Viola v. Arlington Cent. Sch. Dist., 414 F. Supp. 2d 366, 381-82 [S.D.N.Y. 2006]).
As a preliminary matter, I note that here the impartial hearing officer framed the instant dispute in terms of tuition reimbursement, but given the facts of this case, a tuition reimbursement analysis (see Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 ; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ) is not the most appropriate analysis for petitioners' request for compensatory or additional services. The essence of petitioners' claim is that respondent did not offer appropriate special education services to the student for the two years that she was allegedly "wrongly placed in general education classes" and that additional services at Lindamood-Bell are an appropriate compensatory remedy (see Pet'r Reply, p. 1).
State Review Officers have awarded equitable relief in the form of additional educational services to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030). In general, the award of additional educational services for a student who is still eligible for instruction, requires a finding that the student has been denied a FAPE (Application of the Bd. of Educ., Appeal No. 04-085; Application of the Bd. of Educ., Appeal No. 02-047).
I will first address petitioners' claim that she was denied a FAPE during the 2002-03 and 2003-04 school years. Concerning the allegation of a denial of FAPE, insofar as petitioners allege that the student was "wrongly placed in general education classes," I am unable to conclude that there is merit to petitioners' claim to the extent that additional services would be warranted because the record does not contain sufficient evidence concerning her attendance, her special education needs, and the services and placement offered and received during those school years.
Although petitioners submitted formal test data and offered testimony by the Lindamood-Bell clinic director, the student's overall profile developed as a result of that independent evaluation is incomplete. In addition, the record reflects no explanation about the nature of the evaluation that respondent reportedly conducted in March or April 2006 as a result of petitioners' request for an impartial hearing (Tr. p. 41). The record also does not reflect disagreement by petitioners regarding respondent's evaluation. No information is provided by either party regarding the student's cognitive abilities. Such information would provide a context within which to consider the educational test data obtained in the Lindamood-Bell evaluation (Parent Exs. A, B).
The January 2002 IEP (Parent Ex. F) recommended bilingual instruction in Spanish for the student (Parent Ex. F at pp. 1, 9). The record lacks formal test data resulting from test administration conducted in Spanish, something that would be necessary to compare and contrast the student's skills in English and Spanish, in order to determine her strengths and needs in each language. The Lindamood-Bell clinic director opined that the student has oral language processing deficits (Tr. p. 30), yet her best score upon administration of formal testing was on the Detroit Test of Learning Aptitude-2 oral directions subtest, where she scored in the 37th percentile (Parent Ex. B at p. 1), in the average range (Parent Ex. A). It is important to note that the student's January 2002 IEP indicated that on the Slosson Oral Reading Test administered on September 26, 2001, she performed at an instructional grade level of 5.4 (Parent Ex. F at p. 3). When the Slosson Oral reading Test-R was administered at Lindamood-Bell on January 10, 2006, the student's grade level performance was 7.4 (Parent Ex. B at p. 1), two grade levels higher than at the time of the previous testing.
The record lacks evaluative information pertinent to the student's specific speech, language, hearing, and auditory processing functioning in both English and Spanish. The student's weak performance on the PPVT-III, on the DTLA-4 word opposites subtest, and on the TOPS-Adolescent are indicative of possible speech and language, hearing and auditory processing deficits in the English language that may interfere with her acquisition of basic English reading skills, and suggests the need for speech, language, hearing and auditory processing assessments in both English and Spanish.
The student is 18 years old and is currently not attending school (Pet. ¶ 2). She is still eligible for special education services and respondent asserts that she needs to return to school to develop and grow academically (Tr. p. 64). I concur with the determination of the impartial hearing officer to the extent that she ordered that the matter be remanded to the CSE for further consideration. Upon return to the CSE, the CSE should invite the student to participate, if appropriate, and give due consideration to her input (8 NYCRR 200.3[a][x]). I also encourage the CSE to review existing evaluation data, identify what if any additional data are needed, including a bilingual evaluation pertinent to the student's specific speech, language, hearing and auditory processing functioning in both English and Spanish, and upon completion of the necessary evaluations recommend an appropriate program and placement for the student.
As for petitioners' request for reimbursement for the January 10, 2006 evaluation conducted by Lindamood-Bell, I decline to award such reimbursement. State regulations provide that a parent has the right to an independent educational evaluation (IEE) at public expense if the parent disagrees with an evaluation obtained by the school district. If a parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure either an IEE is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. If the impartial hearing officer finds that a school district's evaluation is appropriate, a parent may not obtain an IEE at public expense (8 NYCRR 200.5[g]; Application of the Bd. of Educ., Appeal No. 05-009; Application of a Child with a Disability, Appeal No. 04-082; Application of a Child with a Disability, Appeal No. 04-027). Here, there is no indication that petitioners disagree with any evaluation conducted by respondent.
THE APPEAL IS DISMISSED.
1 The petition for review is signed by both the student and her mother. Although the student was not enrolled in school at the time of the impartial hearing, she will be referred to as the "student" in this decision.
2 Respondent raised no affirmative defense pertaining to the statute of limitations at either the impartial hearing or on appeal.
3On 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). As the relevant events in the instant appeal took place after the effective date of the 2004 amendments, the provisions of IDEA 2004 apply and the citations contained in this decision are to the newly amended statute. Although the student was not enrolled in school at the time of the impartial hearing, she will be referred to as the "student" for purposes of consistency in this decision.
4 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(9).