The State Education Department
State Review Officer

No. 05-005

 

 

 

 

 

 

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 Chappaqua Central School District

 

 

 

Appearances:
George Zelma, Esq., attorney for petitioner

 

Shaw & Perelson, LLP, attorney for respondent, Lisa S. Rusk, Esq., of counsel

 

 

DECISION

 

            Petitioner appeals from the decision of an impartial hearing officer which found that respondent's Committee on Special Education (CSE) recommended an appropriate program for petitioner's daughter for the 2004-05 school year and which denied petitioner's request for tuition reimbursement for that school year.  The appeal must be dismissed.

 

            The student was 14 years old and in the ninth grade at Eagle Hill School (Eagle Hill) when the hearing began in August 2004.  Eagle Hill 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's eligibility for special education and her classification as a student with an other health-impairment are not in dispute in this appeal (see 8 NYCRR 200.1[zz][10]).

 

            The student reportedly has been diagnosed as having a pervasive developmental disorder (PDD), which affects her social and emotional development (Pet. ¶¶ 7, 8; Answer ¶ 1).  She has deficits in the areas of "language pragmatics, social language" and peer interaction (Pet. ¶ 8; Answer ¶ 1) and is described as cognitively rigid and inflexible (Dist. Ex. 2 at p. 4; Pet. ¶ 7; Answer ¶ 1).  She also experiences uncontrollable laughter and displays other inappropriate behavior in public (Pet. ¶ 9; Answer ¶ 1).  Academically, the student has delays in math reasoning, abstraction and inference, and reading comprehension (Pet. ¶ 7; Answer ¶ 1; Tr. p. 259).

 

            The student reportedly was initially classified as a student with a disability when she was in preschool (Tr. p. 526).  She began attending public school in respondent's district for kindergarten and continued there into the fourth grade (Tr. pp. 20, 466).  While in the fourth grade, the student was evaluated by a psychiatrist who reportedly diagnosed her as having Asperger's disorder and recommended that she be placed in a private school (Tr. pp. 467-70).  Thereafter, the student began attending The Summit School (Summit) where she remained for fifth, sixth and seventh grades (Tr. p. 23).  Summit is a private school approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities.  It provides a therapeutic environment for students with special needs (Tr. p. 476).

 

            In April 2002, when the student was in the sixth grade at Summit, a private neurological evaluation was conducted (Dist. Ex. 8).  The evaluator described the student as pleasant and agreeable, but immature and as having a "social naiveté about her" (id. at pp. 2, 5).  He noted that the student often missed the point in conversations with him and made inappropriate comments (id. at p. 2).  The student's teacher reported to the evaluator concerns regarding the student's receptive and expressive language skills, social interactions and attention (id. at p. 1).

 

            Administration of the Wechsler Intelligence Scale for Children-Third Edition (WISC-III) yielded a verbal IQ score of 95, a performance IQ score of 95 and a full scale IQ score of 95, placing the student in the average range of intellectual ability (Dist. Ex. 8 at pp. 3, 7).  Achievement testing revealed that the student exhibited deficits in both her computational and problem solving math skills (id. at p. 5).  Testing also indicated that the student experienced difficulty with reading comprehension (id. at pp. 4, 9).  Additionally, the student's test scores on a selected subtest of the WISC-III and subtests of the Comprehensive Assessment of Spoken Language (CASL) revealed the student's difficulties with language structure, non-literal and inferential use of language, as well as pragmatic language deficits (id. at pp. 3, 5).

 

            The evaluator concluded that the student "needs to continue in a small, highly-structured educational setting that is supportive and provides her with a sheltered environment" (Dist. Ex. 8 at p. 5).  Recommendations included individualized math, reading comprehension, abstract and inferential language instruction, as well as speech therapy to address the student's deficits in language structure and pragmatic skills.  A social skills training program also was recommended.

 

            The student continued to attend Summit for seventh grade during the 2002-03 school year where she also received counseling and speech-language therapy (Dist. Exs. 13, 14).

 

            By letter dated July 9, 2003, petitioner's private psychologist informed respondent's CSE Chairperson that Summit was no longer an appropriate placement for the student (Dist. Ex. 9; Tr. p. 601).  The psychologist indicated that the student was resistant to returning to Summit because she did not feel academically challenged (Dist. Ex. 9).  The psychologist recommended that the student be transferred to Eagle Hill "with the goal of eventually returning [the student] to a more mainstreamed educational setting" (id.).

 

            Respondent's CSE met in July 2003 to develop the student's program for the 2003-04 school year (Dist. Ex. 15).  It recommended that the student be classified as having an other health-impairment and that she be placed at Summit.  The individualized education program (IEP) resulting from that meeting noted that the student's parent unilaterally enrolled the student at Eagle Hill.

 

            The student began attending Eagle Hill for eighth grade in September 2003 (Tr. p. 483).  In a speech-language screening conducted on September 10, 2003 at Eagle Hill, the clinician described the student as perseverative, anxious and fragile (Dist. Ex. 7).  Based upon the student's performance on the screening tools, the clinician recommended that the student receive speech therapy for "semantic and syntactic support" as well as to address pragmatic deficiencies (id.).

 

            In a February 2004 educational evaluation, the student's reading composite standard score (92) and written language composite standard score (103) were in the average range, while her mathematics composite standard score was below average (84) on the Wechsler Individual Achievement Test-Second Edition (WIAT-II) (Dist. Ex. 3).  On subtests measuring reading comprehension and math reasoning, the student scored in the below average range (id.; Tr. pp. 259-60) which was consistent with her performance on previous academic achievement testing (see Dist. Ex. 8).

 

            In March 2004, the chairperson for special education at respondent's high school and the chairperson for the guidance department at respondent's high school conducted an observation of the student at Eagle Hill during the student's language arts tutorial which consisted of the student, a classmate and a special education teacher (Dist. Ex. 5; Tr. pp. 26, 44, 262).  The student was on task, appropriately behaved and engaged in the lesson throughout the 40-minute class.  The student's teacher at Eagle Hill reported to the observers that the student had good literal comprehension, but struggled with inferences.  She also reported that the student was reliable and organized about her homework.  The student's educational advisor at Eagle Hill advised the observers that the student had been working on developing appropriate social skills including waiting her turn and joining conversations appropriately.  He indicated that he worked with the student to help her avoid negative peer attention.

 

            Toward the end of March 2004, one of respondent's school psychologists evaluated the student (Dist. Ex. 6).  Administration of the Wechsler Intelligence Scale for Children-Fourth Edition (WISC-IV) yielded a verbal comprehension index score of 112 (high average), a perceptual reasoning index score of 110 (high average), a working memory index score of 113 (high average), a processing speed index score of 100 (average) and a full scale IQ score of 113 (high average) (id. at p. 4).  The examiner reported that there were no significant deficits in any of the cognitive ability areas.  He noted that the student's scores on cognitive testing were significantly higher than on academic testing, providing as examples her score of below average on a reading comprehension subtest of the WIAT-II (an academic test) and her score in the above average range on a general test of verbal comprehension of the WISC-IV (id. at p. 2).  Additionally, the examiner reported that the student scored in the below average range on the math reasoning subtests on the WIAT-II, but in the average range on related perceptual reasoning subtests on the WISC-IV.  He opined that the student showed that she had "some cognitive potential that is not getting translated in academic performance, at least on formal testing."

 

            With respect to social and emotional functioning, the student told the evaluator that she becomes anxious in academic and social situations (Dist. Ex. 6 at p. 2).  She also told the evaluator that she laughs at inappropriate times and indicated that her laughing could be off putting to her peers (id. at pp. 2, 3).  The evaluator reported instances during the evaluation when the student displayed inappropriate laughing and opined that it did not appear to be caused by anxiety, rather that the student had difficulty regulating her affect (id. at p. 3).  The evaluator noted that when describing emotions the student appeared to express herself less clearly than during cognitive testing, had difficulty transitioning from one topic to another and arrived at topics in a circumspect way (id.).  The student completed the Beck Depression Inventory and there were no indications of depression (id.).

 

            By letter dated April 13, 2004, the student's educational advisor at Eagle Hill indicated that the during the 2003-04 school year, he had the opportunity to formally and informally observe and process the student's performance and interactions in a wide range of situations (Parent Ex. A).  He described the student as sensitive, honest and often opinionated, with a solid work ethic and developing pragmatic language skills.  He further indicated that she demonstrated a vulnerability "in her ability to access and negotiate the adolescent arena as she strives to maintain friendships and the acceptance of [her] peers."  He noted that some of the student's actions elicited a negative response from her classmates, and that she occasionally had difficulty "internalizing" why her peers responded negatively.  The student's advisor indicated that the student benefited from concrete and sequentially paced instruction, close monitoring, re-directive cueing and guided questioning, as well as direct instruction and role playing to help her understand acceptable social interactions.  He recommended a structured, supportive, small group environment that was "sensitive and tolerant to her distinctive profile."

 

            Respondent's CSE convened on April 16, 2004 to develop the student's IEP for the 2004-05 school year (Dist. Ex. 2).  The CSE continued to recommend that the student be classified as having an other heath-impairment.  It further recommended that the student be placed in the high school's co-teaching support program four periods daily for all academic classes with learning center/consultant teacher services, and an individual program assistant daily for four and one-half hours as well as related services of individual and group counseling and speech-language therapy.  The CSE also recommended various testing modifications, program modifications and assistive technology devices/services.

 

            By letter dated June 25, 2004 to respondent's director of special education and related services, petitioner requested an impartial hearing asserting that the program recommended for her daughter for the 2004-05 school year would not meet her daughter's needs and would not allow her daughter to receive educational benefit (Dist. Ex. 1).  Petitioner indicated that her daughter required a small, self-contained special education environment in order to receive educational benefit.  Petitioner further indicated that her daughter would be attending Eagle Hill beginning September 2004 and that she was entitled to tuition reimbursement for the 2004-05 school year.

 

            The impartial hearing began on August 17, 2004.  By letter dated September 16, 2004 to respondent's director of special education and related services, petitioner amended her hearing request asserting additional claims including, among other things, whether a functional behavioral assessment (FBA) was conducted and a behavioral intervention plan (BIP) developed (Parent Ex. J).  When the impartial hearing continued on September 20, 2004, the impartial hearing officer reserved decision on respondent's objection to petitioner's amended hearing request (Tr. pp. 203-05).  The hearing continued on September 21 and concluded on September 28, 2004.  At the end of the hearing, the impartial hearing officer admitted into the record petitioner's amended hearing request (Tr. pp. 656-57).  The impartial hearing officer rendered his decision on November 29, 2004.  He found that respondent met its burden of demonstrating the appropriateness of the program its CSE recommended for the student for the 2004-05 school year, and, accordingly, he denied petitioner's request for tuition reimbursement.

 

            Petitioner appeals from the impartial hearing officer's decision.  Initially, petitioner claims that the impartial hearing officer erred in not accepting certain evidence into the record.  Petitioner also claims, among other things, that the CSE failed to conduct an FBA and failed to develop a BIP, that the CSE failed to conduct an adequate classroom observation, that the CSE failed to develop a statement of transition services for the student's IEP and that the CSE failed to conduct a functional vocational assessment.  Petitioner further claims that the program recommended by respondent's CSE was not reasonably calculated to confer educational benefit and that respondent failed to meet its burden of demonstrating the appropriateness of the program.  As a result, petitioner claims that she is entitled to reimbursement for the cost of her daughter's tuition at Eagle Hill for the 2004-05 school year.

 

            First, petitioner claims that the impartial hearing officer erred in refusing to allow her to introduce evidence regarding prior settlement agreements between the parties and that he erred in not admitting into the record a coloring book about Eagle Hill illustrated by the student.  While it is the impartial hearing officer's responsibility to obtain an adequate record to support his decision (Application of a Child with a Disability, Appeal No. 04-092; Application of a Child with a Disability, Appeal No. 02-027), an impartial hearing officer also shall exclude evidence that he determines to be irrelevant, immaterial, unreliable or unduly repetitious (8 NYCRR 200.5[i][3][xii][c]).  After hearing arguments from both parties, the impartial hearing officer ruled not to accept the proffered evidence (Tr. pp. 97-106, 620-26).  I find that the impartial hearing officer was within his discretion in so ruling.

 

            Petitioner also claims that the impartial hearing officer erred in finding that respondent met its burden of demonstrating the appropriateness of the program its CSE recommended for the student for the 2004-05 school year and in denying her request for tuition reimbursement.  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. 04-021).  In order to meet its burden, 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]).  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]; Application of a Child with a Disability, Appeal No. 02-015).  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]).

 

            An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-029; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-109; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

 

            Petitioner raises several challenges to her daughter's IEP.  First, petitioner claims that the CSE's failure to conduct an FBA and develop a BIP resulted in a flawed IEP and an inappropriate program and placement for her daughter.  Although an initial evaluation must include an FBA for a student whose behavior impedes her learning or that of others (8 NYCRR 200.4[b][1][v]), both state and federal regulations also provide that any subsequent IEP review "shall . . . in the case of a student whose behavior impedes his or her learning or that of others, consider, when appropriate, strategies, including positive behavioral interventions, and supports to address that behavior" (8 NYCRR 200.4[d][3], 8 NYCRR 200.4[f][1][i]; 34 C.F.R. § 300.346[a][2][i], 34 C.F.R. § 300.346[b]).  The impartial hearing officer found that the record did not demonstrate that the student's behavior impeded her learning.  I agree.  Therefore, under the circumstances presented here, I find that respondent was not required to conduct an FBA.  Nevertheless, I note that the CSE recommended that an FBA would be conducted when the student entered the recommended placement (Tr. pp. 77, 294), and the student's IEP provides that an FBA will be conducted and a BIP developed, and that both will be revised as behaviors and goals change during the year (Dist. Ex. 2).

 

            In addition, petitioner claims that the CSE's recommendation should be annulled because it failed to conduct an adequate observation of the student.  While state regulation requires that an observation of the student in the current educational placement be performed as part of a student's initial evaluation, there is no explicit requirement that a student be observed when, as is the case here, the CSE is conducting an annual review (8 NYCRR 200.4[b][1][iv]).  Nevertheless, I note that the evaluation of the student included an observation at Eagle Hill and the results of that observation were considered by the CSE in developing the student's program for the 2004-05 school year (Dist. Exs. 2, 5).

 

            Petitioner also claims that the statement of transition services on her daughter's IEP does not relieve respondent of its "statutory duty" to develop transition goals and objectives.  Petitioner, however, fails to provide any reference to the statutory authority upon which she relies.  Neither the IDEA nor its state counterpart, Article 89 of the Education Law, requires that a CSE develop transition services goals for a student who is 14 years of age or younger.  Rather, for each student with a disability beginning at age 14, or younger if determined appropriate by the CSE, and updated annually, a student's IEP must include a statement of the transition service needs under applicable components of the IEP that focuses on the student's courses of study, such as participation in advanced-placement courses or a vocational education program (34 C.F.R. § 300.347[b][1]; 8 NYCRR 200.4[d][2][viii]; Application of a Child with a Disability, Appeal No. 04-014).  With respect to petitioner's claim that the CSE failed to conduct a functional vocational assessment, I note that it was not raised at the hearing.  Consequently, I will not consider it in this appeal.

 

            Petitioner further claims that the recommended program is not reasonably calculated to enable her daughter to receive educational benefit.  She contends that her daughter requires a small, self-contained special education environment.

 

            The record shows that the student reportedly has been diagnosed as having a PDD exhibiting language, social and emotional difficulties (Pet. ¶¶ 7, 8; Answer ¶ 1).  In addition, she has math reasoning and reading comprehension delays (id.).  As noted above, the CSE recommended that the student be placed in the high school's co-teaching support program with a "program assistant," learning center/consultant teacher support and individual and group speech-language therapy and counseling (Dist. Ex. 2).

 

            The student's IEP includes goals and objectives to address her language and social/emotional deficits (id.).  To achieve those goals, the CSE recommended that the student receive one individual and one group speech-language therapy session per week and one individual and one group counseling session per week.  The speech-language pathologist assigned to respondent's high school testified that the student had "issues across the language spectrum," including pragmatic and receptive and expressive language deficits (Tr. pp. 334-36).  She opined that the speech-language goals and objectives were appropriate for the student (Tr. p. 338).  She indicated that the student's pragmatic language deficits would be addressed in the group session, while the individual session would include preteaching skills the student needed to follow in the group session as well as working on her receptive and expressive deficits (Tr. pp. 338-39).  The speech-language pathologist further testified that the recommended services provided "plenty of time to work with the student on her goals" (Tr. p. 339).  She noted that she is assigned to a co-teaching class where there is more time for hands-on work and where she believes the needs of students, especially those who have social or language issues, are covered (Tr. p. 341).

 

            The school psychologist who conducted the psychological evaluation testified about the student's emotional needs (Tr. p. 230).  He testified that during the evaluation the student was open and honest about what she perceived as her academic difficulties, as well as about social concerns she has had over the years (Tr. p. 214).  He indicated that the student experienced social anxiety during interpersonal interactions and that she had difficulties relating to peers including understanding social cues and knowing when and how to respond appropriately (Tr. p. 230).  The school psychologist indicated that the IEP accurately reflected the student's social and emotional levels and needs, and opined that the goals and objectives established to meet those needs were appropriate and could have been met during the 2004-05 school year with the level of counseling services recommended (Tr. pp. 216-17).  With respect to the recommended counseling services, respondent's director of special education and related services testified that concerns regarding the student's anxiety and self-image would most appropriately be worked on in the individual sessions, while concerns regarding the student's social interaction, pragmatics, social perception and social cognition would be worked on in the group sessions (Tr. p. 85).

 

            Further, respondent's director of special education and related services testified that the "program assistant," who would be present with the student in her academic classes and during transitions, is an additional adult to help the student transition to the high school, to help her perceive her environment and to help her with teacher and peer interactions (Dist. Ex. 2; Tr. pp. 86-87).  The speech-language pathologist also described how she would work with the "program assistant" to address the needs of the student (Tr. pp. 348-49, 362).  Moreover, the chairperson of special education at respondent's high school, who also is a special education teacher, testified that in addition to the counseling and speech-language services recommended to address the student's social deficits, the student also will interact with nondisabled role models on campus including interactions with nondisabled peers in structured situations such as clubs (Tr. p. 277).

 

            To address the student's academic weaknesses, the CSE established reading, writing and mathematics goals (Dist. Ex. 2).  Respondent's director of special education and related services testified that in the co-teaching support program, students with special needs receive instruction within a general education classroom, but the instruction is modified, supported and adapted for them (Tr. p. 78).  He further testified that the co-teaching classes consisted of a general education teacher and a special education teacher, with a small number of special education students "fully integrated" with the general education students (Tr. pp. 79, 81).  One of respondent's general education high school social studies teachers testified that, in general, in the co-teaching class, the special education teacher assists the general education teacher with presenting information for students who might need it presented in a different format, assists students with special needs, keeps them on task, and assists with assessments (Tr. pp. 379, 382).  The chairperson of special education testified that in the co-teaching class, the students follow the same curriculum, but the level of work for the students with special needs is modified by making tasks easier, or changing the format of tasks, or changing assessments (Tr. p. 269).  He further testified that many times instruction is provided in small groups (id.).

 

            Respondent's director of special education and related services testified that the "program assistant" also is an additional resource to assist the student's specific learning in class (Tr. p. 87).  The chairperson of special education indicated that the "program assistant" assists in the instruction during class and follows up with re-teaching, preteaching and strategic learning under the supervision of the teachers in the classes (Tr. pp. 269-70).

 

            The CSE also recommended two different learning center/consultant teacher services (Dist. Ex. 2 at p. 1).  One was scheduled for eight periods per six day cycle and the other was scheduled for one period per six-day cycle (id.).  With respect to the eight periods per cycle service, the director of special education and related services testified that the student would participate in the learning center a minimum of one period per day of the six-day cycle and twice per day on two days of the six-day cycle (Tr. p. 83).  He described the service as a group of no more than five students who are pulled from the general education classroom to receive support with their ongoing classroom work as well as to develop specific skills identified on their IEPs (Tr. p. 81).  He further testified that the learning center/consultant teacher service is generally taught by the special education teacher from the co-teaching class and is intended to develop a student's specific skills and progress in the general education classes (Tr. pp. 81-82).  The chairperson of special education described the role of the learning center teacher explaining that the learning center teacher serves as a case manager, and, in conjunction with the student's counselor, addresses problems the student may have in school (Tr. pp. 272-73). 

 

            With respect to the learning center/consultant teacher service one period per cycle, the director of special education and related services testified that the student's teachers collaborate with each other to identify and tailor instructional tasks most relevant to the student, as well as to assess progress and the extent to which the student is benefiting from participation and exposure to the general education curriculum (Tr. pp. 84).  The chairperson of special education described the one period per cycle component of the learning center/consultant teacher services as an indirect service explaining that the learning center teacher would communicate and work with other staff (Tr. pp. 274-75).  I note that the director of special education and related services, the chairperson of special education and the general education social studies teacher opined that the student's academic goals and objectives could be met during the school year with the recommended level of services and support (Tr. pp. 89, 268, 393).

 

            Petitioner also claims that the CSE "incorrectly predetermined" that the public school was the student's LRE.  A student's recommended program must be provided in the LRE (20 U.S.C. § 1412[a][5]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).  The IDEA presumes that the first placement option considered for each disabled student is the school the student would attend if not disabled, with appropriate supplementary aids and services to facilitate such placement (34 C.F.R. Part 300, Appendix A—Notice of Interpretation, Section I, Question 1).  The director of special education and related services testified that the CSE's recommendation for a less restrictive environment than the previous year's recommendation for an approved private school was based upon the student's improved social presentation, as well as her need for a more intellectually challenging environment (Tr. p. 129).  He further testified that the student no longer required the strict behavioral systems that had been instrumental in the development of her "pro-social behavior" and that there were reports of her increasing social activity, such as forming friendships and participating on sports teams (id.).  I note that the student testified that previously she was not strong enough to ignore people who made fun of her, but now she only concentrates on people who make her feel comfortable and make her happy (Tr. p. 458).  The director of special education and related services also testified that the recommended program would allow the student to interact with her nondisabled peers throughout the day in her home school while receiving the necessary special education support and that the goals and objectives developed for the student could be completed during the school year given the level of services recommended on her IEP (Tr. p. 89). 

 

            Based upon the information before me, I find that the evaluative material reviewed by the CSE was adequate to support its recommendation for a public school placement.  I further find that the IEP 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 in the LRE.

 

            I also find that the program recommended by respondent's CSE, at the time it was formulated, was reasonably calculated to confer educational benefits to the student and likely to produce progress.  Having determined that respondent has met its burden of proving that it offered to provide a FAPE to the student during the 2004-05 school year, the necessary inquiry is at an end and there is no need to reach the issue of whether Eagle Hill was an appropriate placement (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 petitioner's remaining contentions as well as respondent's affirmative defenses and I find them to be without merit.

 

 

            THE APPEAL IS DISMISSED.

 

 

 

 

 

Dated:

Albany, New York

 

__________________________

 

March 9, 2005

 

PAUL F. KELLY

STATE REVIEW OFFICER