The State Education Department
State Review Officer

No. 04-112

 

 

 

 

 

 

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 Seaford Union Free School District

 

 

Appearances:
The Children’s Advisory Group, Inc., attorney for petitioners, George Zelma, Esq., of counsel

 

Ingerman Smith, LLP, attorney for respondent, Christopher Venator, Esq., of counsel

 

 

DECISION

        Petitioners appeal the decision of an impartial hearing officer which denied their request to be reimbursed for their son’s tuition costs at the Robert Louis Stevenson School (RLS) for the 2003-04 and 2004-05 school years.  The appeal must be dismissed.

        At the time of the hearing, petitioners’ son was 17 years old, and in his third year at RLS.  RLS is a nonpublic 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.  The student has been classified as learning disabled by respondent’s Committee on Special Education (CSE).  His classification is not in dispute. 

        The student's mother reported concerns regarding her son's lack of motivation and effort in school beginning in the second grade, during the 1994-95 school year (Dist. Ex. 3 at p. 3). The student received tutoring assistance in elementary school (Tr. pp. 400-01). In third or fourth grade a psychologist evaluated the student and although difficulties with math were identified, results of the testing did not indicate the presence of a learning disability (Tr. p. 401).  Academic evaluations of the student were administered in 1997, 1999 and 2000 due to parental concerns regarding his academic difficulties.  However, no learning disabilities were identified (Dist. Ex. 3 at p. 2).  In April 1999, following a psychological evaluation, the student was diagnosed with an attention deficit hyperactivity disorder (ADHD) - predominantly inattentive type for which medication was subsequently prescribed (Parent Ex. D; Dist. Ex. 3 at p. 2).  In 2000, an antidepressant was prescribed for the student to "help with symptoms" of obsessive compulsive disorder (OCD).  The student received services from a psychologist and a psychiatrist to address his OCD and ADHD (Dist. Ex. 3 at p. 2).  The student attended school in respondent's district through eighth grade (id.). 

        A Section 504 Plan (Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §§ 701-796[l] [1998]) was developed for the student in May 2000 for the student's eighth grade year.  Information contained in the Section 504 Plan indicated that the student exhibited inconsistent academic performance, attentiveness and work completion (Parent Ex. D).  The student was described as "disorganized," slow in following directions and completing assignments, and as exhibiting periods of inattentiveness in class (id.).  Accommodations offered on the Section 504 Plan included preferential seating, a separate location for taking tests when needed and an extra set of textbooks for home use (Parent Ex. D; Tr. p. 403).  In addition, teachers were required to initial the student's planner to document that the student had correctly identified his assignments (Parent Ex. D). 

        The final eighth grade report card from the student's 2000-01 school year indicated that he failed English and Spanish, and passed math and social studies with grades of 65 and 69, respectively (Parent Ex. E at p. 3).  The student received a final grade of D in reading (id.).  No final grade was reported for science, but the student's grades in science ranged from 50 to 80 throughout the school year.  The student's conduct scores were consistently reported as "superior" or "good" with the exception of one quarter in Spanish for which the student received an "unsatisfactory" rating.  From October 2000 to March 2001, the student received approximately 15 school detentions for various infractions including refusing to complete assigned work, attending class unprepared, and disregarding school rules.  Other infractions reported included fighting, throwing objects and vandalizing school property.  In March 2001 the student received a one-day in school suspension for cutting detention three times (Parent Ex. F).

        The majority of the student's 2001-02 Section 504 Plan was the same as the prior year with the addition of extended time for completion of tests and a recommendation to the student's teachers to communicate with his parents to ensure completion of assignments (Parent Ex. D at p. 2).  However, in September 2001 the parents enrolled the student at RLS, which is a private high school that provides a general education curriculum and offers a smaller student to teacher ratio (Dist. Ex. 3 at p. 2). 

        The student underwent an independent neuropsychological and educational evaluation in October 2003 (Dist. Ex. 3; Parent Ex. G).  At that time, the student's mother reported to the evaluator, a clinical neuropsychologist, that the student was performing below average in all major subjects, with particular difficulty noted in reading and mathematics (Dist. Ex. 3; Tr. p. 224).  She further indicated that her son had a tendency to avoid assignments and studying, and that his self-initiative and follow through with assignments were poor (Dist. Ex. 3 at p. 1).  The student's mother also reported that the student was resistant to and avoided work that he found difficult (Tr. pp. 268-69).  The student's English teacher from RLS reported to the evaluator that the student was performing at grade level in all major subjects (Dist Ex. 3 at p. 2).  In the teacher report utilized by the evaluator, the teacher opined that the student was working "slightly less hard" than his classmates.  The teacher expressed concern regarding the student's avoidance of and resistance to homework (id.). 

        Administration of the Wechsler Abbreviated Scale of Intelligence (WASI) to the student yielded an estimated verbal IQ score of 109, an estimated performance IQ score of 103, and an estimated full scale IQ score of 108,  all within the average range of intellectual functioning (Dist. Ex. 3 at p. 4).  The evaluator indicated that if the complete adult intelligence scale had been administered, there was a 90 percent chance that the student's score would fall between 95-119 (id.).  The evaluator opined that the student's "underlying potential to learn" was within the average to upper limits of the average range (Tr. p. 229).

        Administration of the Wechsler Individual Achievement Test (WIAT II) by the same evaluator indicated "variable" performance (Parent Ex. G at p. 1; Dist. Ex. 3 at p. 4).  While the student's performance on subtests measuring sight word vocabulary (50th percentile) and comprehension of written text (73rd percentile) were adequate, the student's ability to decode unknown words was described by the evaluator as  "somewhat lower" (32nd percentile) and his reading speed was described as slow (Dist. Ex. 3 at p. 4).  The psychologist concluded that the student's reading skills were "average to high average" (Tr. p. 229). 

        The student's performance on mathematics tasks was within the borderline range (Dist. Ex. 3 at p. 4).  Although both skills were judged to be poor, the student performed slightly better on math tasks involving functional word problems than calculations (id.).  The evaluator opined that the student appeared to have the ability to learn about math, but multi-step problems were difficult for him to recall and complete.  Test results also demonstrated that the student's writing skills were discrepant from his overall cognitive abilities.  He performed poorly on subtests assessing poor punctuation and capitalization, and his handwriting was described as variable in size, spacing and horizontal alignment.  Slow writing speed was also noted (Dist. Ex. 3 at p. 5).  The student's performance in spelling was in the average range (30th percentile) (Dist. Ex. 3 at p. 4).  He performed in the low average range on a task measuring the ability to combine short ideas into grammatically complex sentences in order to write an essay, while sentence structure was judged to be fair (Dist. Ex. 3 at pp. 4-5).  The evaluator reported that the student's ability to communicate his ideas clearly was limited by poor writing mechanics and organization (Dist. Ex. 3 at p. 5). 

 

Assessment of the student's executive functioning (the ability to formulate a plan, generate ideas fluently and flexibly, hold information in mind, resist distractions, inhibit impulsive responses, execute a plan and self-monitor) revealed variable abilities, with evidence of difficulties performing complex, multistep, ambiguous or open-ended tasks (Dist. Ex. 3 at p. 5; Tr. p. 235).  The evaluator opined that deficits in these areas would have a "profound" effect on the ability to complete tasks independently (Tr. pp. 240-41). The student's performance on measures of attention and processing speed, including visual scanning, indicated significant difficulty in these areas (Dist. Ex. 3 at p. 5; Tr. p. 231).  While the student's higher-level reasoning skills were judged to be intact, he displayed below average performance on tasks of verbal/auditory working memory (Dist. Ex. 3 at p. 5; Tr. p. 232).  The psychologist indicated that the student's demonstrated difficulty with processing of information and his limited ability to take in information could affect his performance in the classroom (Tr. pp. 232-34).

 

The student's ability to process visual information, as measured by the Beery-Buktenica Developmental Test of Visual-Motor Integration, indicated performance within normal limits.  However, his planning and organization for copying was poor, as he exhibited impulsivity and inattention to details (Parent Ex. G at p. 3; Dist. Ex. 3 at p. 5).  The student also exhibited poor motor coordination with each hand, as well as reduced speed and fine motor control (Dist. Ex. 3 at pp. 5-6).  The evaluator opined that while the student's "ability to process and understand visual-spatial information is intact," this may not be reflected in his performance on tasks involving a motor or executive (organization and planning) component (Dist. Ex. 3 at p. 6).  In addition, the evaluator determined that the student's visual memory "is believed to be intact," but cautioned that the organizational demands of lengthy or complex recall tasks may be difficult for him (id.).

 

The student's mother reported to the evaluator that her son argued with her and with his teachers, and displayed a loss of temper characterized by yelling and occasionally throwing things (Dist. Ex. 3 at p. 3).  She also reported that the student did not appear to listen when spoken to and was easily distracted (id.).  The student's mother further reported that, although her son had two or three close friends, he had difficulty making friends and in the past had become nervous in a large group situation (id.).  The student's then-current teacher completed a questionnaire regarding his school behavior and indicated that, although the student was "as appropriately behaved . . . as his peers," he appeared "somewhat less happy" than the other students (Dist. Ex. 3 at p. 2).  The teacher expressed concern that the student could become angry quickly, but noted that he responded well to reason when he was calm (id.).  The student's completion of a questionnaire assessing his social, emotional and behavioral status yielded scores bordering on the clinically significant range for measures of self-esteem and depression (Dist. Ex. 3 at p. 6).  The evaluator reported that although the student had a desire to do better in school, he felt at a loss as to how to accomplish that, which resulted in feelings of failure (Dist. Ex. 3 at p. 6).  He opined that the student was at risk for experiencing episodes of depression due to his negative thought pattern, but noted that the student did not "present with a formal mood disorder" (Dist. Ex. 3 at p. 7; Tr. p. 248). 

 

The October 2003 neuropsychological and educational evaluation report offered multiple recommendations, including tutoring and extra help in the areas of mathematics, writing and organization of assignments, career counseling, and specific accommodations (Dist. Ex. 3 at p. 7).  The report also contained recommendations regarding teaching the student to write and learning techniques to stimulate recall of information (Dist. Ex. 3 at pp. 8-9).

 

By letter dated January 30, 2004, the parents requested a CSE evaluation of the student (Dist. Ex. 1).  The CSE convened on June 11, 2004 and recommended a classification of learning disabled with the services of daily push-in resource room in general education English and social studies classes for the 2004-05 school year (Dist. Ex. 12; Tr. pp. 206-08).  The CSE also recommended group counseling services one time per week (Dist. Ex. 12; Tr. pp. 211-12).  Testing accommodations recommended for the student included extended time (in an alternative location if necessary), copies of class notes, and use of a computer and calculator (Dist. Ex. 12).  In addition to the testing accommodations, the student was determined to be eligible for program modifications including preferential seating, an additional set of books and tasks broken down into smaller components (id.).  The June 11, 2004 individualized education program (IEP) stated that the student would be provided with the opportunity to meet with a counselor to identify and discuss areas of interest and would be offered activities to explore different career choices as part of his transition plan (id.).  Comments contained in the IEP suggested that the CSE had reached consensus on the goals for the student, and that the parent was interested in the student receiving special education services in the district for the 2004-05 school year (Dist. Ex. 12 at p. 4). 

 

By letter dated July 22, 2004, petitioners’ attorney requested an impartial hearing seeking tuition reimbursement for their son’s educational expenses at RLS for the 2003-04 and 2004-05 school years (Dist. Ex. 13).  The hearing was held September 24, 2004 and September 29, 2004.  The impartial hearing officer rendered his decision on November 22, 2004, finding that respondent had offered an appropriate program and placement for the 2003-04 and 2004-05 school years and denying petitioners' request for tuition reimbursement. 

 

Petitioners appeal, asserting that they are entitled to tuition reimbursement for a portion of the 2003-04 school year and for the 2004-05 school year.  Petitioners argue that respondent’s IEP was procedurally and substantively inadequate for a variety of reasons, including (1) the district’s placement process was untimely, (2) the impartial hearing officer did not review or address legal precedents in his decision, (3) the CSE failed to conduct a functional behavioral assessment (FBA) or behavioral intervention plan (BIP), (4) the CSE failed to develop a complete social and developmental history report, (5) the district failed to conduct a vocational assessment and produce a statement of transition services in the IEP, (6) a class profile was not provided to the parents, (7) the goals and objectives failed to meet  the student’s needs, and that (8) the program offered by the CSE was not reasonably calculated to produce academic progress (Pet. at pp. 4-16).

 

The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1487) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]).  A FAPE consists of 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[8]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).  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 (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]).  The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist Four v. Carter, 510 U.S. 7 [1993]).  The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-092).

 

            To meet its burden of showing that it had offered to a provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that 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 [1982]).  The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

 

            I will first address petitioner's claim of procedural violations in the IEP formulation process.  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlett Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]), e.g., resulted in the loss of educational opportunity (Evans v. Bd. of Educ., 930 F. Supp.83, 93-94 [S.D.N.Y. 1996]), seriously infringed on the parents' opportunity to participate in the IEP formulation process (see W.A. v Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002]). 

 

            Petitioners allege that the district did not conduct the CSE meeting in a timely manner.  Respondent contends that with the exclusion of holidays, weekends and recess periods, the recommendation of the CSE was made “a day or two late” of the 60 day requirement and did not result in a denial of FAPE (Resp. Memo of Law at p.13).  State regulations provide that if the child has not been previously classified, the board of education must arrange for the appropriate special education programs and services for the child within 60 school days of the receipt of the parents’ consent to evaluate (8 NYCRR 200.4[d], [e]).  In the instant case, respondent received petitioners’ consent for an initial evaluation on March 4, 2004 (Dist Ex. 14).  An initial CSE meeting was scheduled for May 14, 2004, but was rescheduled due to a death in the chairperson’s family (Dist Exs. 6, 7, Tr. pp. 195-6).  Another meeting was scheduled on May 21, 2004 but was not held because the CSE chairperson indicated that a physical examination record of the student had not been received (Parent Ex. A; Tr. pp. 196-7).  On May 21, 2004 the district received a copy of the student's medical history, including results of a February 2004 physical examination, and a completed social and developmental history form which indicated that the psychologist had reviewed the student's history with the parent (Dist. Exs. 8, 9; Tr. p. 198).  A classroom observation of the student was conducted on May 27, 2004 by the CSE chairperson (Dist. Ex. 10).  By letter dated June 7, 2004 the CSE chairperson requested that one of the student's teachers from RLS participate in the CSE meeting (Dist. Ex. 11).  The CSE chairperson testified that the headmaster at RLS agreed to participate by phone at the CSE meeting (Tr. pp. 202-203).  The CSE convened and devised an IEP on June 11, 2004, classifying the student and arranging for special education and related services for the student (Dist. Ex. 12).  The record does not specify the holidays or recess periods that occurred during the period in question.  The impartial hearing officer found that the delay would not have impacted the student’s school plan and did not find that a denial of FAPE resulted.  However, the impartial hearing officer expressed concern that respondent should more consistently follow required procedures.  Based on the record before me, I am not persuaded that there is a need to disturb the impartial hearing officer’s finding. 

 

            In order for an IEP to be appropriate, the substantive program developed by the CSE must also be reasonably calculated to confer educational benefits (Rowley, 458 U.S. at 206, 207).  The Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]; see Walczak, 142 F.3d at 130).

 

            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. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child with a Disability, 01-109; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  Federal regulation requires that an IEP 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][1]).  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][2]).  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][7]).  “Measurable annual goals, including benchmarks or short-term objectives, are critical to the strategic planning process used to develop and implement the IEP for each child with a disability” (34 C.F.R. Part 300, Appendix A-Notice of Interpretation, Section I, Question 1).  Annual goals must also include evaluation criteria, evaluation procedures and schedules to be used to measure progress toward the annual goals (8 NYCRR 200.4[d][2][iii]). 

 

            In general, annual goals are statements that identify what skills a student can reasonably be expected to demonstrate in his special education program within a 12-month period (see  New York State Education Department’s Sample Individualized Education Program and Guidance Document – December 2002).  Once a CSE has developed measurable annual goals for a child, the committee can develop strategies that will be most effective in realizing those goals and must develop either measurable, intermediate steps (short-term objectives) or major milestones (benchmarks) that will enable parents, students, and educators to monitor progress during the year, and, if appropriate, to revise the IEP consistent with the student’s instructional needs (34 C.F.R. Part 300, Appendix A-Notice of Interpretation, Section I, Question 1).  Short-term instructional objectives break the skill described in the annual goal down into discrete components whereas benchmarks may be thought of as describing the amount of progress the child is expected to make within specified segments of the year (id.).    The purpose of including short-term objectives or benchmarks is to enable a child’s teachers, parents and others involved in the process to gauge at intermediate times during the year how well the student is progressing toward achievement of the annual goal, and, if appropriate, to revise the IEP consistent with the student’s instructional needs (id.)

 

            Petitioners argue that the IEP does not include measurable annual goals with benchmarks or short-term objectives.  A review of the goals and objectives indicates that the progress toward annual goals is measured by the completion of the short-term objectives (Dist. Ex. 12).  Within the annual goals themselves are statements that indicate progress toward their completion will be measured by the short-term objectives. For example, an annual goal for study skills states that the student will "Demonstrate an improvement . . . to progress toward achieving the learning standards as measured by completion of the short-term objectives by the end of the school year." An annual goal for writing states that the student will "Demonstrate an improvement . . . by passing classroom tests on all objectives listed below by the end of the school year" and an annual social/emotional/behavioral goal states that the student will "Demonstrate an improvement . . . as measured by completion of therapy activities based on the criterion for objectives listed below" (Dist. Ex. 12 at p. 5).  All of the short-term objectives for the student are written with evaluative criteria, evaluation procedures and schedules according to 8 NYCRR 200.4[d][2][iii].  For example, a short-term objective for study skills states that the student will "Organize and record all school assignments in the appropriate notebook or assignment book with 80% mastery, evaluated by utilizing recorded observations, as assessed by the special education teacher, by the first marking period."  In this example, the evaluative criteria is 80 percent, the evaluation procedure is recorded observations and the evaluation schedule is by the first marking period.  Contrary to petitioners' assertion that "the IEP does not indicate a measure of the intermediate progress the student is expected to achieve in the 2004-05 school year," every short-term objective on the IEP has a time designation for completion, eg. "by the first marking period," "by June 15," and "by the end of the school year" (Dist. Ex. 12 at p. 5). I find the goals and objectives to be appropriate to meet the student’s needs (Application of a Child with a Disability, Appeal No. 03-084).

 

         The IEP must also include a statement of the special education and related services and supplementary aids and services to be provided to or on behalf of the student, as well as a statement of the program modifications or supports for school personnel that will be provided to the student (34 C.F.R. § 300.347[a][3]).  Such education, services and aids must be sufficient to allow the student to advance appropriately toward attaining his or her annual goals (34 C.F.R. § 300.347[a][3][i]).

 

        Petitioners assert that the impartial hearing officer erred in concluding that the social/emotional/behavioral goals in the June 11, 2004 IEP adequately address the student's behavioral needs.  Specifically, petitioners question the adequacy of individualized attention, organizational structure and emotional support which would have been provided by the recommended counseling.  The 2004-05 IEP offered group counseling once per week for 30 minutes (Dist. Ex. 12 at p. 1).  The CSE chairperson testified that the CSE was aware that the student's measures of oppositional behavior, social problems and emotional lability were significant (Tr. pp. 308-09).  The IEP stated that the student may "follow the lead of a friend even though it may not be appropriate" and that he exhibited a "moderate delay in social skills with peers" (Dist. Ex. 12 at p. 3).  To address these identified concerns and to ease the student's transition to the public school, the CSE recommended group counseling (Tr. pp. 62, 340-41).  The CSE chairperson testified that at the CSE meeting the student's tendency toward inappropriate responses to peer pressure had been discussed, and that the CSE was in agreement that counseling should be recommended (Tr. pp. 189, 211-12). The social-emotional/behavioral goals on the IEP address the specific behaviors that the student exhibited while attending RLS.  For example, one annual goal states that the student will " utilize effective coping strategies when faced with conflict situations."  Another annual goal states that the student will "identify and verbalize acceptable patterns of behavior in varied situations" (Dist. Ex. 12). I find that the student's behavioral needs are appropriately addressed by the goals set forth in the 2004-05 IEP.

 

        Petitioners contend that the IEP failed to offer an effective plan for behavior management, in part because the CSE failed to conduct an FBA as part of its evaluation.  The Commissioner's Regulations explicitly require the individual initial evaluation to include an FBA for a student "…whose behavior impedes his or her learning or that of others, as necessary to ascertain the physical, mental, behavioral and emotional factors which contribute to the suspected disabilities" (8 NYCRR 200.4 [b][1][v]; Application of a Child with a Disability, Appeal No. 01-094). Further, the IDEA and Commissioner's regulations mandate that a CSE must consider, "when appropriate," strategies and supports to address student behavior that impedes his or her learning or that of others (20 U.S.C. § 1414[d][3][B][i]; 8 NYCRR 200.4 [d][3]).

        The Regulations of the Commissioner of Education define an FBA as:

…the process of determining why a student engages in behaviors that impede learning and how the student’s behavior relates to the environment. The functional behavioral assessment includes, but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it. (8 NYCRR 200.1[r])

The district’s psychologist, special education teacher and CSE chairperson all testified that they were not aware of any "behaviors that impede learning" from the review of records for and at the CSE meeting in June 2004 (Tr. pp. 55, 78, 96-97, 106-07, 123, 142, 174, 200, 212-13, 218, 332-33, 335-36, 342).  No behaviors that warranted an FBA were identified when the psychologist and the CSE chairperson met with RLS staff, or when the CSE chairperson conducted an observation of the student (Tr. 46-7, 310).  The classroom observation was conducted on May 27, 2004 and the CSE chairperson commented that the student was quiet and attentive, and that she observed the student interacting with a peer who sat next to him (Dist. Ex. 10; Tr. pp 199-200).  Additionally, in discussion between the CSE chairperson and the classroom teacher, the teacher stated the student was typically cooperative (Dist Ex. 10; Tr. pp. 200-01).  Furthermore, the independent psychologist who evaluated the student in October 2003  testified that he did not recommend that an FBA be conducted while the student attended RLS (Tr. p. 276).  The headmaster at RLS testified that although the student has been sent home on various occasions, he has learned to express his feelings of being upset and takes time to "get himself together" (Tr. pp. 359, 384).  The headmaster at RLS indicated that RLS does not have a written FBA for the student (Tr. pp. 380-381).  He further indicated that teachers at RLS are trained to complete the educational evaluation forms and testified that a student's behavior would not appear on those reports unless the behavior was exhibited with a certain degree of frequency (Tr. pp. 367, 377-378).  Given that the student did not exhibit problematic behavior which impeded his learning in the classroom, I cannot conclude that that an FBA was warranted in this instance (Application of a Child with a Disability, Appeal No. 03-095).  Under the circumstances of this case, I find the absence of an FBA did not result in the formulation of an IEP that was not reasonably calculated to provide educational benefit. 

Petitioners also contend the CSE failed to develop an appropriate social history report.  I am not persuaded by this contention.  The applicable regulations at 8 NYCRR 200.1(tt) define social history as "a report of information gathered and prepared by qualified school district personnel pertaining to the interpersonal, familial, and environmental variables which influence a student’s general adaptation to school, including but not limited to data on family composition, family history, developmental history of the student, health of the student, family interaction and school adjustment."  A review of the document entitled “social and developmental history” reveals the developmental history of the student, family composition, health of the student, family interaction and school adjustment (Dist. Ex. 9).  The CSE obtained information for the social history from the student's mother using a social and developmental history form (id.).  The form includes all the components of the above definition and was reviewed by telephone with the parent by the school psychologist (id.).  The parent provided an additional paragraph statement regarding the student's school adjustment that was included in a packet of information considered by the CSE (Tr. p. 301).  The record reflects that the CSE compiled an adequate social history and provided an opportunity for the parents to offer additional information regarding the student's past educational experience.  The student's mother did provide additional information, which was considered by the CSE at the June 2004 meeting.  I find that this was an adequate social history, as it contained information regarding the family history and family interaction, as well as a developmental history, and information regarding the student's health and school adjustment (Application of a Child Suspected of Having a Disability, Appeal No. 00-089).

Petitioners claim a statement of transition services was not included in the student’s IEP.  Among the purposes of the IDEA is the preparation of students with disabilities for future employment and independent living (34 C.F.R. § 300.1[a]).  To the extent appropriate for each individual student, an IEP must focus on providing instruction and experiences that enable the student to prepare for later post-school activities, including higher education, if appropriate, employment, and independent living (34 C.F.R. part 300, Appendix A, Notice of Interpretation, Question 11).  Consistent with this, federal and state law set forth specific requirements related to transition planning and transition services.  Transition services are defined under both state and federal law as: 

…a coordinated set of activities for a student with a disability that -

(A) is designed within an outcome-oriented process, which promotes movement from school to post-school activities, including post-secondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;

(B) is based upon the individual student's needs, taking into account the student's preferences and interests; and

(C) includes instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation.

 

(20 U.S.C. § 1401[30]; see 34 C.F.R. § 300.29; N.Y. Educ. Law § 4401[9]; 8 NYCRR 200.1[fff]).

 

Beginning at the age of fifteen (or younger if appropriate) in New York, and sixteen (or younger if appropriate) under federal regulations, the student's IEP must not only include a statement of the student's post-school transition needs, taking into account the student's preferences and interests (8 NYCRR 200.4[d][2][i][c]); but must also include a statement of needed transition services being provided, and include, if appropriate, a statement of the responsibilities of the school district and any participating agencies for the provision of such services and activities that promote the student's movement from school to post-school opportunities (8 NYCRR 200.4[d][2][i][c]; 8 NYCRR 200.4[d][2][ix]; see 20 U.S.C. § 1414[d][1][A][vii][II]; 34 C.F.R. 300.347[b][2]; see also 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 11).  Under New York regulations, needed transition services and activities must be provided in instruction, related services, community experiences, development of employment and other post-school adult living objectives, and, if appropriate, in the acquisition of daily living skills and a functional vocational evaluation (8 NYCRR 200.4[d][2][ix], citing 8 NYCRR 200.1[fff]).  New York regulations also require at age fifteen that the student's IEP include a statement of projected post-school outcomes, based on the student's needs, preferences and interests, in the areas of employment, post-secondary education, and community living (8 NYCRR 200.4[d][2][ix]).

 

In the instant case, the student was seventeen when the 2004-05 school year began.  The record reflects that the student’s IEP included his interest in computer graphics and his desire to attend college (Dist. Ex. 12).  The CSE chairperson testified that post-school outcomes were developed for the student with "input from the parents" (Tr. p. 338).  I find the student received appropriate transition services and there was no substantive deprivation of a FAPE (see Chuhran v. Walled Lake Consol. Schs., 51 F.3d 271 [6th Cir. 1995]; Max M. v. Illinois State Bd. of Educ., 629 F.Supp. 1504 [N.D.Ill. 1986]; Application of a Child with a Disability, Appeal No. 97-70).

 

Having determined that the challenged IEP was adequate, respondent has met its burden of proving that it had offered to provide a FAPE to the student during the 2004-05 school year.  Based upon the record before me, I find no basis on which to disturb the decision of the impartial hearing officer.  Petitioners are not entitled to tuition expenses for the 2003-04 and 2004-05 school years, and I need not reach the issue of whether or not RLS was an appropriate placement; the necessary inquiry is at an end (M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134; Application of a Child with a Disability, Appeal No. 03-058).

 

            I have considered petitioners' remaining contentions and I find them to be without merit.

 

THE APPEAL IS DISMISSED.

 

 

 

 

 

Dated:

Albany, New York

 

__________________________

 

January 27, 2005

 

JOSEPH P. FREY

STATE REVIEW OFFICER