The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of Mount Vernon
Advocates for Children, attorneys for petitioner, P. Leigh Sansone, Esq., of counsel
Aiello & Cannick, attorneys for respondent, Jennifer A. Fremgen, Esq., of counsel
Petitioner appeals from an impartial hearing officer's decision which determined that the 2002-2003 individualized education program (IEP) offered by the Committee on Special Education (CSE) at respondent's public school district was appropriate, and reasonably calculated to allow the student to receive meaningful educational benefits. The appeal must be dismissed.
At the time of the hearing, petitioner's daughter was approximately 18 years old, with full scale intellectual functioning, as measured by the WAIS-III, in the low average range at 85 (Exhibit Parent 2). Her cognitive deficits were most evident in her difficulties with math (Transcript pp. 24-25). The student was diagnosed with Psychotic Disorder Not Otherwise Specified, Post Traumatic Stress Disorder with psychotic features, and Dysthymic Disorder (Exhibit J), and was receiving outpatient treatment for dual diagnoses of Asperger's Syndrome and Brief Psychotic Episode (Exhibits District 4, D). As a result of these psychiatric disorders (District Exhibits 4, 7), she experienced social and emotional problems in school. In addition, the student had physical needs related to cerebral palsy with hypotonic diplegia, characterized by stiffness in the extremities, and vision impairment, caused by myopia and congenital estropia. The student's classification as multiply disabled was not in dispute (Transcript p. 24).
At the time of the hearing, the student was in the 11th grade at a small high school in a suburban public school district (SD), at which she had been enrolled since she first began attending school (Transcript p. 236, Exhibit District 18). In June 2001, petitioner found it necessary to move to a neighboring school district. Petitioner's daughter continued to attend SD until a residency determination dated February 15, 2002 prohibited her attendance therein (Petition p. 5). The student remained at home for a period of approximately three weeks while the mother attempted to make arrangements for her daughter to resume attendance at SD (Transcript p. 45, Exhibit District 1).
On March 14, 2002, petitioner and the CSE chairperson from the new school district entered into an interim agreement recommending the same educational services provided to the student at SD, commencing March 15, 2002. Proposed services were based on the previous SD IEP, and verbal information acquired from the SD school psychologist. (Transcript pp. 27-30, Exhibit District 8). The CSE convened on May 3, 2002, and generated two substantially similar IEPs for the student (Transcript pp. 30, 35, 117): one IEP for the balance of the 2001-2002 school year at SD (Exhibit District 2) and one IEP for the 2002-2003 school year to be completed at CD (Exhibit District 1). Both IEPs were based on input from the CSE (Transcript pp. 30-32, Exhibit District 9) using the June 2001 IEP data as well as educational, psychological, psychiatric, speech-language, and medical evaluations and tests (Transcript pp. 34-42, Exhibit District 1, 2, 3, 4, 7, 19, 20, I, G, H).
For the 2001-2002 school year, the CSE recommended that the student be enrolled in a 12:1+1 special education class for math, English, social studies, and physical education in a non-integrated setting, and in an inclusion science class, in an integrated setting, with the assistance of a consultant teacher 42 minutes a day. In addition, the CSE recommended that she receive 30 minutes of group speech-language therapy twice a week, as well as individual vision services for 40 minutes once a month. The IEP indicated the following program modifications: adaptive physical education, additional time to complete tasks, assistance during transitions, daily living skills curriculum, large print materials, modified curriculum, grading and homework, and preferential seating. Testing accommodations and assistive technology included: use of a word processor, a calculator, and one page magnifier, as well as small group test administration, extended testing periods, explanation of directions, flexible test sites, and revised test formats (Exhibit District 2).
In light of the student's impending State examinations and emotional profile, the CSE determined that she would complete her 10th grade coursework at SD for the balance of the 2001-02 school year, and transition to 11th grade at CD in September 2002 (Exhibit District 2). The 2002-03 IEP to be followed at CD was identical to that of the 2001-02 IEP, with the exceptions of slightly larger 15:1 and 15:1:1 special education classes and the assignment of an aide to the student to shadow her throughout the school day for vision and corridor navigation related reasons (Transcript p. 54, Exhibit District 1).
Petitioner did not accept the CSE's recommended educational program because she believed the CD program was dissimilar to the SD program, and that the change in routine would be academically and psychiatrically detrimental to her daughter's well being (Exhibit District 18). By letter dated August 26, 2002, she informed CD that her daughter would continue to attend SD for the 2002-03 school year, and requested an impartial hearing for the purpose of securing permanent placement therein (Exhibit District 18). The hearing commenced on November 18, 2002, and concluded on November 20, 2002. Both parties waived their due process right regarding the 45 day period within which the hearing officer must render a decision, according to Part 200.5(i)(4) of the Regulations of the Commissioner of Education (Transcript p. 7).
In a decision dated February 20, 2003, the hearing officer found that the IEP was appropriate, and that supports, supplementary and related services offered by CD were appropriate and substantially similar to those offered at SD, allowing the student to make educational progress and receive meaningful educational benefit through the implementation of the IEP at CD. The hearing officer stressed the need to facilitate an immediate but gradual transition to the new school setting, through the cooperation and planning of both school districts and family members. Tests and evaluations used to develop the IEP fell within the legal mandate to update evaluations every three years, and, therefore, were deemed in compliance; no new psychological evaluation was determined to be necessary.
The hearing officer also stated that the petitioner did not waive any procedural requirements, and was afforded meaningful participation in the CSE deliberations and in the creation of the IEP. Petitioner's objection to the absence of a post high school vocational transition plan was pronounced unjustified because of petitioner's lack of cooperation with CD. The hearing officer found that respondent's non-compliance with procedural requirements, if any, was de minimis and inconsequential.
Petitioner asserts that the respondent's CSE failed to comply with federal and state procedural requirements regarding the IEP and placement recommendation because the CSE did not (1) perform the psychological evaluation needed to determine placement, (2) perform vocational assessment and transition planning for the IEP, (3) allow the parent a meaningful opportunity to participate in the creation of the IEP and placement recommendation, and (4) have a general education teacher present when the IEP was developed. Petitioner further contends that the IEP is not reasonably calculated to confer meaningful educational benefit upon the student because the CSE failed to: (1) complete any evaluations prior to making its placement recommendation for the 2002-03 school year, (2) appropriately place the student with other pupils of similar academic or educational achievement, and (3) consider the unique needs of the student in terms of class size, structure and emotional support.
Respondent argues that the IEP complied with the procedural requirements as mandated by state and federal law to consider all necessary evaluations prior to the creation of the IEP, and set forth a transition plan within the IEP. Respondent further alleges that it provided the parent with meaningful participation in the creation of the IEP, and included a general education teacher as part of the CSE. It argues that it has offered an appropriate placement with functional grouping contingent upon the student's updated assessment, and developed an IEP reasonably calculated to enable the student to receive meaningful educational benefits based on all available information at the time of its recommendation. Respondent also contends that the IEP provided sufficient supports and services to address the student's needs and is an appropriate placement for her. It stated that the recommended program was very similar to petitioner's former program in terms of class size and support staff available for the student's emotional needs, and provided the least restrictive environment, given the facts of the instant case. More specifically, the more restrictive provision of a 1:1 aide was justified as allowing the student to transition to a less restrictive setting, necessary for the student, and imitative of the student's prior transition at SD.
The purpose behind the Individuals with Disabilities Education Act (IDEA) is to ensure that children with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][A]; see, Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2d Cir. 1987]). A FAPE consists of specialized education and related services embodied in an IEP (34 C.F.R. § 300.13). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96, 102 [2d Cir. 2000]; Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Educ. Dept. Rep. 487 ). To meet its burden of showing that it provided a FAPE to an individual child, a board of education must show that (1) it complied with the procedural requirements set forth in the IDEA, and (2) the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 US 176, 206-207 ). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]). An appropriate 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. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
Both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 US at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]). Moreover, "adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 US at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). The initial procedural inquiry is no mere formality (Walczak v. Bd. of Educ. of the Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93). Procedural flaws do not automatically require a finding of a denial of FAPE, but procedural inadequacies that individually or cumulatively result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP, clearly constitute a denial of FAPE (Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 US 950 ; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D.Conn. 2001]; see, Arlington Cent. Sch. Dist. v D.K., ___ F.Supp.2d ___, 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; Evans, 930 F.Supp at 93; see also, J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]).
A board of education may be required to pay for 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 (School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 ). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child with a Disability, Appeal No. 02-006; Application of a Child with a Disability, Appeal No. 01-096; Matter of a Handicapped Child, 22 Ed. Dept. Rep. 487).
Petitioner asserts procedural improprieties regarding IEP formulation and placement determinations. I first look to participation levels required by the regular teacher and parent members of the IEP team. The IDEA and State and federal regulations provide that the CSE must include "at least one regular education teacher (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]; Application of a Child with a Disability, Appeal No. 02-080). In its interpretation of the regulations, the U.S. Department of Education has indicated that the "teacher need not (depending upon the child's needs and the purpose of the IEP team meeting) be required to participate in all decisions made as part of the meeting or to be present throughout the entire meeting or attend every meeting." The amount of time the regular education teacher needs to spend participating in a CSE meeting should be determined on a case-by-case basis (see 34 C.F.R. Part 300, Appendix A, Section IV, Question 24). Here the regular teacher participated in a substantial portion of a lengthy CSE meeting (Transcript pp. 104, 301) and the record does not indicate that the level of his participation was detrimental to the development of the IEP. Therefore, respondent is in compliance with IDEA and State and federal regulations (20 U.S.C. § 1414[d][B][ii]; see 34 C.F.R. § 300.344[a]; 8 NYCRR 200.3[a][ii]; Application of a Child with a Disability, Appeal No. 02-080).
Parents are also integral members of the IEP team (20 U.S.C. § 1414[d][B][i]; see 34 C.F.R. § 300.344[a]; 8 NYCRR 200.3[a][i]). They provide important data regarding their child's strengths, and discuss ways in which to enhance their child's education in terms of special education needs, related services, and supplementary aids and services. As IEP team members equal to school personnel members, parents participate in decisions pertaining to the provision of services for their child, and to their child's participation and progress within the general education curriculum and in State and district wide assessments (see, 34 C.F.R. Part 300, Appendix A, Section II, Question 5). Moreover, they assist in determinations regarding the need for evaluative data (34 C.F.R. 300.533[a]), eligibility (34 C.F.R. 300.534[a]), and placement (34 C.F.R. 300.501[c]) (see, 34 C.F.R. Part 300, Appendix A, Section II).
In the instant case, the student's grandmother, and several advocates accompanied the petitioner when she participated in the CSE meeting (Transcript pp.31-32, Exhibit District 9). Although both petitioner and respondent provided the evaluative tools successfully used to create the 2001-02 IEP and to determine the 2001-02 SD placement, the record reflects that the mother and the case manager would not consider the student's 2002-03 placement at CD (Transcript p. 162-163, 339). Throughout telephone conversations, a tour of the CD school, and the CSE meeting, the mother asserted that placing her daughter at CD would subject her daughter to significant psychiatric risks (Transcript pp. 298-300). The CD Coordinator of Special Education testified that while she toured CD with the mother, the mother focused more on her child not attending school there than discovering the school's educational opportunities (Transcript p. 337-339). I note here that the mother's concerns about inappropriate placement (Transcript pp. 259, 295), class size, and building navigation (Transcript p. 265) were effectively addressed in the record (Transcript pp. 51, 52, 322, 328, Exhibit District 1, 2) and her fear that the student's heightened sensitivity and potential reaction to the racially diverse population was not substantiated in the record (Transcript pp. 267-272). Although petitioner disagreed with the other members of the CSE, she had meaningful opportunity to participate in IEP development and placement. Respondent is in compliance with this regulation.
The IEP must accurately reflect the results of evaluations to identify the student's needs. Federal and State regulations require that each child with a disability be reevaluated at least once every three years to determine the student's individual needs and continuing eligibility for special education (20 U.S.C. 1414[a][A]; 34 C.F.R. § 300.536; 8 NYCRR 200.4[b]; Application of a Child with a Disability, Appeal No. 01-019).
Petitioner cites to a lack of evaluations, including psychological evaluation, undertaken prior to placement recommendation. The CSE convened on May 3, 2002 to discuss and formulate the substantially similar 2001-02 and 2002-03 IEPs, of which only the 2002-03 IEP is at issue. Both IEPs were based on exactly the same data discussed by the same people at the same meeting. Evaluative tools, as indicated on the IEPs included the: most recent SD IEP, teacher report, report cards, speech and language progress report, psychological evaluation, psychological consultation dated November 17, 2002, psychiatric evaluation, psychiatric note, and medical report from the period commencing April 2001 and terminating May 2002 (Exhibits District 1, 2, 3, 4,19, 20, C, G.) Included as part of the record, but excluded from the reported list of assessment tools were a: comprehensive psychological consultation, joint letter from a psychiatrist and psychiatric social worker, and letter from a medical doctor from the period commencing November 2000 and terminating May 2002 (Exhibit District 7, H, I). The psychiatric evaluation dated April 2002 (Exhibit J) was not available at the time of the CSE meeting (Transcript pp. 40-41). All data used was compiled within the three-year period allowed under State and federal regulations and respondent was in compliance with its reliance thereon.
Students with disabilities must be suitably grouped for instructional purposes with children having similar needs and abilities in the same areas: academic achievement and learning characteristics, social development, physical development, and management needs (8 NYCRR 200.6[a] and [g], and 200.1[ww][i]; Walczak v. Bd. of Educ., 142 F.3d 119, 123 [2d Cir. 1998]). Typically, a board of education demonstrates similarity of grouping for instructional purposes by offering a class profile listing the needs of the children in those areas or by providing testimony about the needs of the other children (Application of a Child with a Disability, Appeal No. 02-077; Application of a Child with a Disability, Appeal No. 97-67). A self-contained class for students with disabilities whose education needs require specialized instruction is limited to a maximum of fifteen students (8 NYCRR 200.6[g]).
The 2002-03 IEP recommended special classes with 15:1:1 or 15:1 student to staff ratios; this is slightly larger than the 12:1:1 special classes recommended on the 2001-02 IEP (Exhibit District 1, 2). When the hearing officer asked the student's special education teacher at SD to recommend measures to promote the student's success, she recommended a small class size, a combination of real life and academic skills, and the recognition of the student as a person with emotions, by loving people (Transcript p.406). She added that the student might be able to do the work in a 15:1:1 class, although she was not certain that she would be an integral part of the class.
The CD Coordinator of Special Education described the class profile for her 15:1:1 class as composed of students who are, for the most part, multiply disabled or mentally retarded (Transcript p.322), based on their needs and level of functioning (Transcript p.343). Some of these students also have 1:1 aids assigned to them, as recommended in the instant case (Transcript p.333). This class is considered to be less restrictive than the 12:1:4 class life skills class offered at CD (Transcript p. 321), and students may move from the life skills program to other programs within the school, if appropriate (Transcript p.373). Behavioral intervention plans would be developed, and teachers, psychologists, social workers, counselors, and aides capable of addressing the student's emotional needs would be available to her (Transcript pp. 223, 335-336).
Additionally, the IEP was based on the student's academic achievement and learning characteristics, social development, physical development, and management needs and, as such, she would be placed with other children with multiple disabilities and cognitive deficiencies in a 15:1:1 life skills program for math, but in departmental special classes with 15:1 student to staff ratios for English and social studies, and in an inclusion program for science (Transcript pp. 48-55). The student's placement and grouping is in compliance with the regulations.
An IEP for a student who is at least 14 years of age must include an annual statement of transition services that focuses on the student's course of study, for example, advanced placement or vocational programs, to assist the student in moving from school to post-school opportunities (20 U.S.C. 1414[d][A][vii][I]; 34 C.F.R. 300.347[b] ; 8 NYCRR 200.4[d][viii]; beginning at age 16, interagency responsibilities or linkages related to transitions needs must be included in the IEP (20 U.S.C. 1414[d][A][vii][II]; 34 C.F.R. 300.347[b]; 8 NYCRR 200.4[d][viii]). In addition, state regulations mandate a statement of the student's post-school outcomes, based on her needs, preferences, and interests, in the areas of employment, post-secondary education, and community living, with needed transition services, to be included in the IEP for students 15 and older (8 NYCRR 200.4[d][ix]).
As previously noted, the CD IEP was substantially similar to the SD IEP. Both programs contained identical and very sparse transition plans that referred to the student's interest in attending vocational school and her ambition to become a writer. The plan recommended a course of study that included special education services leading to a high school diploma, and participation in activities that research and discuss career choices; supported employment was also suggested. Professionals representing the fields of psychology, social work, and psychology were listed as participating agencies (Exhibit District 1, 2). I note here that the life skills program was not included as part of the plan, but does address the philosophy of independent living espoused in the IDEA (34 C.F.R. Part 300, Appendix A, Section III). While the current plan poses more questions than it answers, respondent alleged that its procedure is to develop a transition plan when planning for the student's graduation, and that it had not had access to the student, other than when she toured the school (Transcript p. 79). Although the student's post high school plans were discussed at the CSE meeting, I fail to see how respondent could have devised a suitable plan without student input. This is an untenable situation for respondent, if not caused by petitioner, then not corrected by petitioner. Therefore, this transition plan is acceptable until such time as the student meets with the appropriate personnel to devise a satisfactory plan.
However, the transition plan most important to the instant case centered around the student's smooth transition from the school district she had attended for her entire school career to the new school district. There is no doubt that the student's diagnoses and traumatic life experiences, two leading to psychiatric hospitalizations, have raised her level of sensitivity to new situations. Testimony in the record referring to the student's transition from one school to other included concern about the level of stress that would be caused by the change. Sudden change was viewed as subjecting the student to intolerable stress and possible regression. I agree with this viewpoint. However, educational professionals were loath to uncatagorically state that the student could not transition if the change was effectuated gradually. The SD special education teacher testified that the student could form trusting relationships with a different psychologist and teacher over time. When asked if the student could transition to CD, she stated that she couldn't say it was impossible, and that with maturity, time, and a very sheltered environment of one class, the student might be able to attend college at a later date (Transcript pp. 432, 436-437, 441, 444). The school psychologist also testified that the student would be able to transition, although she would be very resistant to change (Transcript pp. 479, 484). Based on the record, I agree with the hearing officer that a gradual transition can be made with the help of the family, therapeutic team, and educational professionals.
In the instant case, respondent has complied with the procedural requirements of the IDEA, and the IEP developed through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 US 176, 206-207 ). I find that respondent has met its burden of proving that it had offered to provide a FAPE to the student during the 2002-03 school year. Accordingly, I direct the student to attend CD, pursuant to residency requirements, and further direct the CSE to more fully develop the transition plan.
THE APPEAL IS DISMISSED.
Albany, New York
October 17, 2003