The State Education Department
State Review Officer

No. 05-031

 

 

 

 

 

 

Application of the BOARD OF EDUCATION OF THE CARMEL CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

 

 

Appearances:
Kuntz, Spagnuolo, Scapoli, & Schiro, P.C., attorney for petitioner, Jeffery J. Schiro, Esq., of counsel

 

Mayerson & Associates, attorney for respondents, Eric Nachman, Esq., of counsel

 

 

DECISION

 

            Petitioner, the Board of Education of the Carmel Central School District, appeals from the decision of an impartial hearing officer which found that it failed to offer an appropriate educational program to respondents' son and ordered it to reimburse respondents for their son's tuition costs at the Connecticut Center for Child Development (CCCD) for summer 2004 and for the 2004-05 school year, plus transportation costs to and from the school from February 28, 2005 through June 24, 2005. Respondents cross-appeal that part of the decision that denied reimbursement for expenses related to transportation costs from July 28, 2004 through February 28, 2005.  The appeal must be dismissed.  The cross-appeal must be sustained in part.

 

            Respondents' son was eight years old at the time of the hearing and had been classified by petitioner's Committee on Special Education (CSE) as autistic (see Dist. Exs. 2, 8, 31, 42, 61, 72, 85); his classification is not in dispute.  In February 2001, when the child was five years old and in kindergarten, a psychological evaluation revealed that the child's overall cognitive functioning was in the very low range (below 1st percentile) as measured by the Mullen Scales of Early Learning (MSEL) (Dist. Ex. 81 at pp. 5-7).  In addition, the evaluator reported that the child exhibited self-stimulatory behaviors such as flapping his hands and arms as well as uncooperative, destructive, and disruptive behaviors such as squealing, dropping to the floor, and bolting from the room (Dist. Ex. 81 at p. 5).  This behavior was deemed to be "extremely serious" and occurred on an hourly basis (id.).  The examiner noted that the child's teacher had reported that the child had a history of bolting (elopement behavior) without safety awareness (Dist. Ex. 81 at p. 3).  His attention was limited and the evaluator recommended he receive one-to-one instruction (Dist. Ex. 81 at p. 7).  An occupational therapy evaluation revealed that the child exhibited sensory modulation difficulties that affected his performance in the areas of pre-writing, visual-motor coordination, bilateral integration and motor planning skills (Dist. Ex. 77 at p. 2).  A speech-language evaluation indicated severe impairments in receptive, expressive, and pragmatic language skills (Dist. Ex. 76).  The CSE classified respondents' son as autistic, and for kindergarten through second grade the CSE placed respondents' son at the Mathew Patterson Elementary School in a 6:1+2 special class with an individual aide, with related services for speech and occupational therapy (Dist. Exs. 42, 61, 72, 85).  The child received extended school year services during the summers to prevent regression (id.).

 

On May 9, 2003 the CSE met to develop the child's program for his upcoming third grade 2003-04 school year (Dist. Ex. 52).  The resultant individualized education program (IEP) placed the child in an 8:1+2 special class with an individual aide, and related services consisting of group occupational therapy for 30 minutes once per week, individual occupational therapy for 30 minutes twice per week, individual speech-language therapy for 30 minutes five times per week, and monthly parent training sessions (Dist. Ex. 52).  An additional 30 hours of home-based applied behavioral analysis (ABA) instruction was provided for the child over the course of summer 2003 and fall 2003 (see Dist. Ex. 52 at p. 2; Dist. Ex. 44). 

 

During summer 2003, the child's speech-language therapist noted that the biggest challenge to the child's learning was that his behaviors negatively impacted on his ability to learn; primarily, his behavior of leaving his seat and lying on the floor (Dist. Ex. 50).  The child's provider of ABA services during summer 2003 and fall 2003 likewise completed a report indicating that she discussed the issue of the child's bolting behavior with his classroom teacher; she recommended that a behavior plan for school and home be developed, as well as a continuation of parent training in the home (Dist. Ex. 44). Although the 2003-04 IEP developed in May 2003 contained a few general social/behavioral objectives, none of them specifically addressed the child's bolting or dropping to the floor behaviors (see Dist. Ex. 52).  Recognizing that their son's interfering and inappropriate behaviors had continued over summer 2003 (Tr. pp. 670-71, 679-80, 693), prior to the start of the 2003-04 school year the parents sent a letter to the district requesting an independent educational evaluation (IEE) at district expense (Parent Ex. 16), and also requested that the district perform a functional behavioral assessment (FBA) on their son (Parent Ex. 16).   A few weeks into the 2003-04 school year, the director of pupil services for the district noted that the child was having "behavioral issues," and requested the parents' permission to conduct the FBA (Dist. Ex. 47; Tr. p. 240; see Parent Exs. 24, 30, Dist. Ex. 46; Tr. pp. 681-82). The parents requested that the FBA be postponed until completion of the IEE (Parent Ex. 22; Tr. p. 690). Limited data gathered by the staff during September and October 2003 suggested that respondents' son's behaviors such as bolting, tantrums, crawling under tables, and falling to the floor were happening on a daily basis, often several incidents occurring in a single day (Parent Ex. 24).

 

The IEE was completed in October 2003 (Dist. Ex. 45) but was not received by the district until January 13, 2004, accompanied by a letter from the parent requesting that the district conduct the FBA (Parent Ex. 32; Tr. p. 320).  Formal testing conducted as part of the IEE included the Leiter International Performance Scale-Revised (Leiter-R), a nonverbal test of intelligence which measures abstract reasoning and problem-solving skills; the Developmental Profile II (DP-II), which measures daily living skills and developmental expectations based on parent interview and examiner observations; and the Scales of Independent Behavior-Revised (SIB-R), which measures functional independence skills such as motor skills, communication skills and community living skills (Dist. Ex. 45 at pp. 6-7).  Results from the Leiter-R yielded a brief IQ standard score of 63, in the very low range of cognitive functioning (Dist. Ex. 45 at p. 6). On the DP-II the child yielded an IQ equivalency score of 74 (Dist. Ex. 45 at p. 7).  Although the child was eight years old at the time of testing, the child's DP-II scores were consistent with an academic age equivalent of approximately six years old, a social age equivalent of four years old, and a communication age equivalent of three and a half years old (Dist. Ex. 45 at 7).  Results from the SIB-R revealed that the child's functional behavioral skills were in the very low range (percentile rank 0.1), approximately commensurate with a four year old (Dist. Ex. 45 at p. 7).  The evaluator noted that the child demonstrated a pattern of behavioral problems which included withdrawal, inattentiveness, unusual or repetitive habits, socially offensive and uncooperative behavior and destruction of property (Dist. Ex. 45 at pp. 9-10).  Results gathered from the child's teacher's observations revealed that the child's academic performance and adaptive functioning were below the 10th percentile and that the child exhibited withdrawn and depressed behaviors (Dist. Ex. 45 at pp. 11-12).  The evaluator recommended that the child be placed in a full day intensive therapeutic program, preferably for autistic children, comprised of 40 hours per week of behavioral programming using direct teaching methodologies (Dist. Ex. 45 at p. 17).  The evaluator also suggested revisions to the child's current 2003-04 IEP, including a 1:1 student-to-teacher ratio (Dist. Ex. 45 at p. 15), revision of current goals and objectives, and the addition of goals and objectives pertaining to compliance, independent task completion, negative behavior reduction, self-regulation, adaptive daily living skills, and safety skills (Dist. Ex. 45 at pp. 20-21).  The evaluator also recommended developing an appropriate behavior management plan (Dist. Ex. 45 at p. 24) and direct parent training (Dist. Ex. 45 at pp. 23-24).

 

During the 2003-04 school year the child's problem behaviors, including bolting, continued to escalate (Tr. pp. 142, 404, 681-82, 686-87, 695).  On February 2, 2004 the CSE met to develop the child's IEP for the 2004-05 school year (Dist. Ex. 42).  The CSE determined that the child's needs required that he be placed in an out-of-district program and they began looking for an appropriate placement (Dist. Ex. 42 at p. 4, Dist. Ex. 14; Tr. pp. 115-120, 701; see, e.g., Dist. Exs. 22, 24, 25).  The CSE recommended that the child be placed in a 6:1+2 special class with an individual aide (Dist. Ex. 42).  The IEP also provided for occupational therapy, speech-language therapy, and parent training (id.).  The CSE determined that the child would receive 10-13 hours per week of home ABA instruction as interim support pending determination of an out-of-district placement (see Dist. Ex. 42, Parent Ex. 54).  For the first time the CSE also recommended that an FBA be performed and that the results be used to develop a behavioral intervention plan (BIP) for the child (Dist. Ex. 42 at p. 4, Parent Ex. 35). On February 26, 2004 the parent signed a "Consent for Reevaluation" form (Dist. Ex. 34; see Tr. pp. 682-83).  In March and April 2004, the CSE completed an updated physical examination (see Dist. Ex. 2 at p. 4), a speech-language evaluation (Dist. Ex. 19), and a social history on the child (Dist. Ex. 23), but failed to conduct an FBA (see Tr. pp. 330-34). 

 

One of the schools considered by the CSE for respondents' son was the Anderson School Day Program for Autism and Other Developmental Disabilities (Anderson School). The Anderson School is a private school for autistic children (Tr. pp. 265-66) that has been approved by the New York State Education Department for the provision of special education services for students with disabilities (Tr. p. 136).  By letter dated March 8, 2004 the Anderson School notified the district that they would accept respondents' son for the extended 2004-05 school year, but on the condition that the child's IEP be amended to remove parent training, reduce speech services from five individual sessions per week to three individual sessions and one group session per week, and by making the individual aide requirement subject to approval and reimbursement from the State Education Department (Dist. Ex. 33).

 

In spring 2004 the district reported an increase in the incidence of the child's bolting behavior and concern for his safety (see Dist. Ex. 2, Dist Ex. 8 at p. 4, Dist. Ex. 13 at p. 2, Dist Ex. 16 at p. 7, Dist. Ex. 21, Parent Ex. 43; Tr. p. 142). In May 2004, when petitioner's director of pupil services realized that an FBA had still not been performed, the district's behavioral consultant gathered information on behavioral supports for the child as a preface to an FBA, and it was recommended that personnel at the new placement conduct the FBA (Dist. Ex. 17; Tr. pp. 124, 127, 129-30, 330-334, 354, 360).  After seven documented bolting incidents in a three-week period in May 2004, on June 2, 2004 the child's special education teacher and the school social worker met with the child's mother to inform her that due to safety concerns, the principal had decided that effective immediately respondents' son would be placed on home instruction until a new placement could be found (Dist. Ex. 13, Parent Ex. 43).  The special education teacher sent a memo to the director of pupil services the next day informing her of the action taken and stating that the staff had "mounting concerns for [the child]'s safety in the school environment.  His bolting is becoming more potentially dangerous, particularly since our playground is not fully enclosed and since we are in close proximity to the train and parking lot" (Dist. Ex. 13).  At the same time, the principal sent a letter to the parent stating that the child could no longer be kept safe at the school and informed the parent that the child would be placed on home instruction "until an out-of-district placement is identified" (Parent Ex. 43; see Tr. pp. 695-699).  The CSE convened on June 8, 2004 (Dist. Ex. 8).  Noting that the team "has significant concerns for [the child]'s safety," the CSE devised an interim IEP with home services for the child pending selection of an outside placement (Dist. Ex. 8 at p. 4).  The parent continued to send the child to the elementary school (Parent Ex. 47; Tr. pp. 144-45).  Additional triennial evaluations of the child were completed in May and June 2004, including a psychoeducational evaluation (Dist. Ex. 16), an occupational therapy evaluation (Dist. Ex. 12), and a psychological addendum (Dist. Ex. 11).  Respondents' son exhibited a bolting incident during the psychoeducational evaluation (Dist. Ex. 16 at p. 7).  In her report dated May 14, 2004 the school psychologist recommended that an FBA be conducted in order to develop a positive behavioral plan and to reduce the child's incidents of bolting and tantrum behaviors (Dist. Ex. 16 at p. 8).  The psychological report addendum contained the results of parent and teacher input on a behavioral assessment which yielded scores for the child in the extremely low range, indicating significant areas of need in adaptive behavior (Dist. Ex. 11 at p. 3).

 

On June 24, 2004 the CSE met to review the new evaluations and to finalize a placement and program for the child for the summer 2004 and for the 2004-05 school year (Dist. Ex. 2; see Tr. p. 337).  The child's most recent progress report noted that the child's bolting incidents had become more frequent and that the "greatest area of concern" now were his behaviors which impacted his safety (Parent Ex. 48).  The CSE found that respondents' son continued to have significant delays in speech, language, social, and fine motor skills which inhibited his participation in the regular education curriculum (Dist. Ex. 2 at p. 2).  The 2004-05 IEP noted that he required repetition, redirection, and visual structure in order to learn (Dist. Ex. 2 at pp. 3-4).  Although improving, the child continued to have intensive speech-language therapy and occupational therapy needs (Dist. Ex. 2 at pp. 3-4).  The IEP noted that the child's interactions with others were limited and he demonstrated obsessive behaviors which interfered with social interactions (Dist. Ex. 2 at p. 3).  It was noted that a "behavior plan has been implemented to help [the child] with his tendency toward impulsive behavior" utilizing rewards and time outs, but also noted that "serious behaviors, such as bolting and dropping, remain despite the plan in place" (Dist. Ex. 2 at p. 4, see Parent Ex. 48).

 

The resultant 2004-05 IEP placed the child in an 8:1+2 special class with an individual aide (Dist. Ex. 2). In addition, the CSE recommended that he receive 30 minutes of small group occupational therapy once per week, 30 minutes of individual occupational therapy twice per week, and 30 minutes of individual speech-language therapy five days per week (id.).  The IEP also directed that the child be transported by a small bus with a monitor (Dist. Ex. 2 at p. 1).  The IEP indicated that the child required access to a language board and a voice output device for communication (Dist. Ex. 2 at p. 2). The IEP included goals and objectives in study skills, reading, mathematics, speech-language, social/behavioral, motor, and adaptive daily living skills (Dist. Ex. 2 at pp. 5-7). The IEP noted that the child required intensive supervision and a small teacher-to-student ratio in a special school environment in order to progress academically (Dist. Ex. 2 at p. 4).  The CSE recommended respondent's son be placed at the Anderson School for the 2004-05 school year (Dist. Exs. 2, 33). On June 30, 2004 the district's assistant director of pupil services sent a letter to the Anderson School which acknowledged receipt of the Anderson School's letter of March 8th accepting respondents' son, forwarded the requested evaluations, and informed them that the district would provide any speech services that were on the IEP that the Anderson School did not provide (Dist. Ex. 1).    

 

            Respondents did not accept the CSE's recommended educational program.  By letter dated July 26, 2004, they informed petitioner that they would be enrolling their son at CCCD for the 2004-05 extended school year, and requested an impartial hearing for the purpose of obtaining an award of tuition reimbursement (Parent Ex. 53).  Respondents' son was enrolled in CCCD on July 28, 2004 (Tr. p. 729).  The hearing commenced on August 10, 2004, and concluded on December 2, 2004.  In a decision dated February 2, 2005, the impartial hearing officer found that, due to various procedural and substantive violations of the Individuals with Disabilities Education Act (IDEA) which included, inter alia, the lack of an FBA, the failure to include a representative from the Anderson School at the CSE meeting, and the alteration of the IEP to conform to the Anderson School's conditions, the district failed to offer an appropriate program to respondents' son.  The impartial hearing officer then examined the evidence on the program provided by CCCD and concluded it met the child's needs.  She awarded tuition reimbursement to the parents for the summer of 2004 and the 2004-05 school year, as well as transportation costs from February 28, 2005 through the end of the school year, denying transportation costs prior to February 28, 2005 due to a lack of evidence.  Petitioner herein appeals the impartial hearing officer's decision, requesting that the State Review Officer annul the decision and reverse her findings of fact and conclusions of law which culminated in an award of tuition reimbursement to the parents.  Respondents cross-appeal from that part of the impartial hearing officer's decision which denied reimbursement for transportation expenses prior to February 28, 2005.

 

There is a procedural issue in the pleadings that must be addressed first.  Respondents' attorney initially submitted only a memorandum of law in response to the petition.  After a request from this office asking for clarification as to whether or not respondents would be submitting an answer, or requesting an extension, respondents' attorney, claiming that he "did not believe a formal answer was necessary" (Letter from Respondents' Counsel to Office of State Review, dated March 22, 2005), belatedly submitted an answer and cross-appeal, but as petitioner correctly pointed out in its reply, respondents' answer was not verified or notarized.  State regulations require that "[a]ll pleadings shall be verified" by oath and give detailed instructions as to how to verify a petition or answer (8 NYCRR 279.7).  Also, contrary to respondents' attorney's representation in the accompanying correspondence, the answer was not timely, but was served on petitioner two days late.1 

 

Within two days of receipt of petitioner's reply, respondents' attorney submitted to this office a properly verified and notarized version of the original answer, asserting he was unaware that parent verification was required for an answer.  He also attempted to "reply" to petitioner's reply by seeking to correct the original answer to respond to five paragraphs in the petition that were not previously addressed in the original answer.  State regulations direct that "[n]o pleading other than the petition or answer will be accepted or considered by a State Review Officer…except a reply by petitioner to…the answer" (8 NYCRR 279.6). 

 

 I remind respondents’ attorney that he is charged with knowledge of all state regulations governing appeals to the Office of State Review (see 8 NYCRR 279.1, et. seq.), and that compliance is mandatory.  In the instant case, because respondents' attorney promptly corrected his failure to follow proper filing procedures for the answer, and no prejudice was caused to the district by the relatively short delay, I will exercise my discretion and accept the two-day late original answer as well as the subsequently received belated parent verification and notarization of the original answer (see Application of the Bd. of Educ., Appeal No. 01-014; Application of the Bd. of Educ., Appeal No. 99-12); however, I decline to accept any additional pleadings from respondents which attempt to add to the original answer or respond to petitioner's reply (see Application of a Child with a Disability, Appeal No. 02-103).

 

Turning now to the merits of petitioner's appeal, the purpose behind the 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][D]; 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 (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 [2d Cir. 2003]; 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. 04-043). 

 

To meet its burden of showing that it had offered to 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]). Not all procedural errors render an IEP legally inadequate under the IDEA (Grim, 346 F.3d at 381).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet 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]).  As for the program itself, 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).  This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

 

A thorough review of the record reveals that the impartial hearing officer's decision was supported by the record and well reasoned in all respects.  The hearing was conducted consistent with the requirements of due process, the impartial hearing officer made factual findings supported by the record, applied the proper legal analysis in determining whether respondents are entitled to tuition reimbursement, and there is no need to annul or modify the decision and order of the impartial hearing officer on the issue of tuition reimbursement (see 34 C.F.R. § 300.510[b][2]; N.Y. Educ. Law § 4404[2]).

 

I concur with the impartial hearing officer's determination for the reasons she stated finding that, due to various procedural and substantive problems in the child's IEP, petitioner did not meet its burden of demonstrating that the 2004-05 IEP was appropriate.  Three major violations in particular resulted in a denial of a FAPE. 

 

First, it is undisputed that no representative from the Anderson School attended or otherwise participated in the June 24, 2004 CSE meeting which developed the 2003-04 IEP and placed respondents' son at the Anderson School. The director of admissions at the Anderson School testified that neither she nor any other representative of the Anderson School attended any of the child's IEP meetings (see Tr. pp. 291, 281-82; see also Tr. pp. 455-56).  State and federal regulations require that when a school district recommends placing a child in a private school "the [district] shall ensure that a representative of the private school or facility attends the meeting.  If the representative cannot attend, the agency shall use other methods to ensure participation by the private school or facility, including individual or conference telephone calls" (34 C.F.R. § 300.349[a][2]; see 8 NYCRR 200.4[d][4][i][a]). The regulations require that the district bears the burden of ensuring the representative's attendance at the meeting and cannot rely on private communiqués between the district's director of pupil services and a representative from the private school to fulfill this requirement. The parent testified that she asked several CSE members at the meeting if they thought Anderson School was an appropriate placement for her son, but they responded that they had never seen the classroom or program, so they couldn't form an opinion (Tr. pp. 724-25).  Had a representative of the Anderson School been in attendance at that CSE meeting to explain the program, the parents would have had a direct and appropriate opportunity for meaningful discussion with that school and the CSE regarding their concerns with respect to the Anderson School and their questions as to whether it would be able to meet their child’s individual needs (see Application of the Bd. of Educ., Appeal No. 04-058; Application of a Child with a Disability, Appeal No. 03-091). The presence of a representative from the Anderson School was particularly important here, where the Anderson School was requiring certain services on the child's IEP be altered or removed prior to his acceptance (Dist. Ex. 33).  The impartial hearing officer correctly found that failing to comply with this procedural requirement effectively denied the parents their right to meaningfully participate in the formulation of their child's IEP, resulting in a denial of a FAPE (Werner v. Clarkstown Cent. Sch. Dist., ___ F. Supp. 2d ___, 2005 WL 767878 at *3 [S.D.N.Y. Mar. 31, 2005]; Application of the Bd. of Educ., Appeal No. 04-058; Application of a Child with a Disability, Appeal No. 03-088; Application of the Bd. of Educ., Appeal No. 03-062). 

 

Second, and perhaps most egregious in the instant case, the impartial hearing officer correctly found that the district's program was inappropriate for the child in that it was developed without an FBA.  State regulations require that an FBA be performed as part of an initial evaluation of a child suspected of having a disability if the student's behavior impedes his or her learning or that of others (8 NYCRR 200.4[b][1][v]).  In addition, in all subsequent annual IEP reviews, the IDEA as well as state and federal regulations mandate that the CSE "shall…in the case of a child whose behavior impedes his or her learning or that of others, consider, when appropriate, strategies, including behavioral interventions, and supports to address that behavior" (20 U.S.C. 1414[d][3][B][i]; 34 C.F.R. § 300.346[a][2][i]; see 8 NYCRR 200.4[d][3][i]).   The official commentary to the federal regulations specifies that "a failure to, if appropriate, consider and address these behaviors in developing and implementing the child's IEP would constitute a denial of FAPE to the child" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 38).

 

Where behavior impedes a student from learning, and here all parties agreed it did, the CSE must properly assess that behavior as an initial step in developing an appropriate IEP (Application of a Child with a Disability, Appeal No. 03-057; Application of a Child with a Disability, Appeal No. 02-032; Application of a Child with a Disability, Appeal No. 01-094; Application of the Bd. of Educ., Appeal No. 01-060). It was precisely the issue of the child's interfering behaviors which in fact initially led the CSE to recommend moving him to a more restrictive setting (see Dist. Ex. 42).  Petitioner's director of pupil services admitted that although an FBA was ordered by the CSE in February 2004 (Dist. Ex. 42 at p. 4, Parent Ex. 35), due to the district's error, the FBA was never performed (Tr. pp. 127-28, 326-330). An FBA was needed to identify the problem behavior, to identify the contextual factors that contribute to that behavior, and to formulate a hypothesis with regard to the general conditions under which the behavior usually occurs and the probable consequences that serve to maintain it (8 NYCRR 200.1[r]).  Based on the results of the FBA, petitioner's CSE should have included in the child's IEP a set of positive behavioral interventions and strategies (i.e., a BIP) to address the child's inappropriate behaviors (see Application of a Child with a Disability, Appeal No. 02-114), especially his bolting behaviors, which not only interfered with his learning but posed a serious safety risk (see Lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 94 [2d Cir. 2005] [safety concerns may be considered, where appropriate, in the development and review of an IEP]).  In the instant case, the fact that the CSE knew of the child's very dangerous bolting behaviors for years, and everyone including the parent, the child's ABA provider, the child's teachers, the school psychologist, the director of pupil services, and the CSE recognized the serious safety risk these behaviors posed to the child and had recommended that an FBA be done, compounds the seriousness of the violation.

 

The district's attempt to shift the burden of completing the FBA to the Anderson School (see Tr. pp. 129-130, 394-95; Dist. Ex. 17) is unavailing.   It is well settled that "each CSE has the responsibility to ascertain a pupil's needs and to recommend the necessary services to address those needs, and may not delegate to others the task of determining the amount or nature of those services" to a Board of Cooperative Educational Services (BOCES) or any other institution (Application of the Bd. of Educ., Appeal No. 03-062; see 34 C.F.R. § 300.349; Application of a Child with a Disability, Appeal No. 93-15; Application of a Child with a Handicapping Condition, Appeal No. 91-25; Application of a Child with a Handicapping Condition, Appeal No. 90-12). A CSE may not delegate its responsibility of developing an appropriate FBA as part of the child's program to any other entity, and any related management goals and objectives stemming from the FBA must be included on the student's IEP (see 34 C.F.R. § 300.348[a][2][i]; 8 NYCRR 200.4[d][3][i]; see also Application of the Bd. of Educ., Appeal No. 03-062). The regulations specifically direct that a school district must have an IEP in place at the beginning of the school year (34 C.F.R. § 300.342[a]), and that the IEP must be in effect before special education and related services are provided (34 C.F.R. § 300.342[b][1][i]); which must include, where appropriate, positive behavioral interventions (see 8 NYCRR 200.4[d][2], [3][i]).  Moreover, the director of admissions at the Anderson School testified that they do not devise behavior plans for new students placed by districts, that behavior plans come from the districts and are updated or revised, if needed, once the student is enrolled at the Anderson School (Tr. pp. 300-01).  In light of the nature and severity of the child’s dangerous bolting behaviors, and the fact that the district was aware of the behaviors for at least several months, if not years, prior to the start of the recommended placement at the Anderson School, I find that an FBA should have been completed by the district and behavioral strategies incorporated into the child’s IEP well in advance of the start of his placement at the Anderson School.

 

In a case such as this, where everyone involved unanimously recognized the seriousness of the need for an FBA for the child yet none was done, the impartial hearing officer correctly found that the resultant program for the 2004-05 school year recommended by petitioner's CSE was not reasonably calculated to confer educational benefits and in fact resulted in a denial of a FAPE to respondents' son by not providing him with the behavioral supports he needed (i.e., a BIP) in order to progress in the general curriculum (see K.F. v. Bd. of Educ., 04 Civ. 2601 [S.D.N.Y. Mar. 24, 2005]; Application of a Child with a Disability, Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 03-057; Application of a Child with a Disability, Appeal No. 02-114; see 34 C.F.R. § 300.348[a][2][i]; 8 NYCRR 200.4[d][3][i]). 

 

Finally, while these two violations are each, in themselves, sufficient to constitute a denial of a FAPE, the district committed an additional violation of the regulations when it agreed to alter the child's IEP to conform to the Anderson School's letter of acceptance.  The Anderson School had indicated by letter to the district that it would accept respondents' son, but would first need his IEP amended to remove parent training, change speech-language services from five individual speech-language sessions per week to three, and by making the individual aide contingent upon reimbursement approval (Dist. Ex. 33).  The district responded by deleting parent training from the child's IEP (compare Dist. Exs. 42, 2; Tr. pp. 378-79), and by notifying the Anderson School that the district would provide the additional two weekly individual speech-language therapy sessions (Dist. Ex. 1).  The individual aide remained on the IEP, but the record is unclear as to whether or not the Anderson School would have provided the child with his own individual aide.2  When asked at the hearing if the changes to the child's IEP were suggestions or conditions, the director of admissions at the Anderson School testified that the changes to the IEP listed in the Anderson School's letter of acceptance were not suggestions, but rather conditions of acceptance that would need to be changed in the IEP prior to the child's enrollment at the Anderson School (Tr. pp. 281-82).   Petitioner's director of pupil services testified that it was common for out-of-district placements to contact the district and for the district to adjust a student's IEP to accommodate the private school's program (Tr. p. 316).  She noted that the district would sometimes provide the services the private school did not, but that any such changes would have to be decided at a CSE meeting (Tr. pp. 316-17).  She noted that in respondents' case, no CSE meeting was held concerning amending the child's IEP to conform to the Anderson School's conditions of acceptance (id.).

 

An appropriate placement for a student must be identified based upon whether a school can meet the student's needs as identified on the student's IEP (see 34 C.F.R. § 300.552[b][2]; 8 NYCRR 200.4[d][4][ii][a]; Application of a Child with a Disability, Appeal No. 04-058; see also 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 14 [a CSE cannot first place a child and then develop an IEP]).  The impartial hearing officer in the instant case properly found that the district erred in altering the child's IEP to conform to the Anderson School's conditions.  As noted, the regulations state that a CSE has the responsibility to ascertain a student's needs and cannot subrogate that authority to another entity (34 C.F.R. § 300.349[a][1] ["before a public agency places a child with a disability in, or refers a child to, a private school or facility, the agency shall initiate and conduct a meeting to develop an IEP for the child in accordance with secs. 300.346-300.347"]; 34 C.F.R.§ 300.349[c] ["Even if a private school or facility implements a child's IEP, responsibility for compliance with this part remains with the public agency and the SEA"]; see also 20 U.S.C. § 1412[a][10][B][i]; 34 C.F.R. § 300.401).  Once the CSE had determined the appropriate special education and related services for the child in his IEP, those services were required. The district's alteration of the child's IEP to meet the requirements of the private school placement was a serious violation of the federal regulations. As correctly noted by petitioner's director of pupil services, any 'amendments' to the IEP as requested by the Anderson School should have been addressed at a full CSE meeting, rather than by private correspondence, which effectively denied the parents the opportunity to participate in the decision (20 U.S.C. § 1415[d][4]; 34 C.F.R. § 300.346[b]; 8 NYCRR 200.4[f]; see Dorian G. v. Sobol, 1994 WL 876707 at *4 [E.D.N.Y. 1994] [citing with approval Application of a Child with a Handicapping Condition, Appeal No. 92-34]; Applications of the Bd. of Educ. and a Child with a Disability, Appeal Nos. 97-42 & 97-43; Application of a Child with a Disability, Appeal No. 94-15; Application of a Child with a Handicapping Condition, Appeal No. 92-15). The IDEA requires that each school district “shall ensure that the parents of each child with a disability are members of any group that makes decisions on the educational placement of their child” (20 U.S.C. § 1415[f]).  Neither the CSE Chairperson nor any other single member of the CSE could have altered the IEP which the CSE had recommended (Application of a Child with a Disability, Appeal No. 94-15; Application of a Child with a Handicapping Condition, Appeal No. 92-3). Moreover, the CSE's deletion of parent training from the IEP, done after a partially composed CSE meeting, is particularly troubling.  New York State has specific regulations which apply to IEPs for autistic children (see 8 NYCRR 200.13).  These regulations require that parent counseling and training must be provided to parents of autistic children in order to enable them to perform follow-up intervention activities at home (8 NYCRR 200.13[d]).  This parent counseling and training must be identified on the IEP as a related service (see Application of the Bd. of Educ., Appeal No. 00-016).  This service was improperly deleted from the child's 2004-05 IEP at the Anderson School's request. I admonish the district for altering the child's IEP to conform to the conditions of the private school placement, in violation of federal and state regulations, and remind it that when placing a child in a private school or facility it may not renege on its responsibility to ensure that a student's IEP is fully and properly implemented as written by a properly composed CSE (34 C.F.R. § 300.409[c]).  Should the district decide to provide some of the services itself, that should be duly noted on the IEP, after a properly composed CSE meeting, rather than summarily deleting the appropriate service from the child's IEP or by the district agreeing to provide a service in private correspondence.

 

For the foregoing reasons, I concur with the impartial hearing officer's analysis and conclusion that petitioner failed to provide a FAPE to respondents' son for the 2004-05 school year.

 

Having determined that petitioner has not met its burden of proving that it had offered to provide a FAPE to the student during the 2004-05 school year, the impartial hearing officer then properly considered whether respondents had met their burden of proving that the services provided to the child by CCCD during that school year were appropriate (Burlington, 471 U.S. 359; Application of the Bd. of Educ., Appeal No. 05-015; Application of the Bd. of Educ., Appeal No. 03-062).  In order to meet that burden, the parent must show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., that the private educational services obtained by the parents were appropriate to the child's special education needs (see M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Muller v. Committee on Spec. Educ., 145 F.3d 95, 104-105 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 04-108; Application of a Child with a Disability, Appeal No. 01-010). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105). I concur with the impartial hearing officer's finding that CCCD met the child's special education needs.

 

As previously noted, all parties agreed that the nature of the child's disability coupled with the fact that the child exhibited disruptive and aggressive behaviors and lacked safety awareness indicated the need for a FBA/BIP, 1:1 instruction in order to refocus the child and keep him on task, discrete trial training, and related services of speech-language and occupational therapy (Dist. Exs. 2, 16, 45).  At CCCD, the director of clinical services testified that the student-to-staff ratio was "better than one to one" (Tr. pp. 525-26).  In addition, CCCD provided the child with 30 hours per week of ABA, a method of instruction familiar and effective with the child which used discrete trial teaching to break down tasks using practice, reinforcement, and repetition (Tr. pp. 569-71).  Upon admission to CCCD in July 2005, the staff immediately began developing their own FBA or behavioral objective report regarding the child's bolting and falling to the floor behaviors (Parent Ex. 67; Tr. pp. 736, 533-34).  Data was collected regarding the frequency, antecedent events and duration of the child's behaviors (Parent Exs. 67, 69, 73).  The report included a behavior plan used by CCCD staff which, by use of reinforcers, reduced the frequency of these behaviors, with the result that between late July and early October 2004, the child's bolting behaviors were reduced from an average of 8 per day to 2.6 per day (Parent Ex. 67), falls to the floor were reduced from 4.4 times per day to 3.2 times per day, and their duration was reduced from approximately 8 minutes to 4.4 minutes each (Parent Ex. 67; see Tr. pp. 541-47, 555-59, 650, 657-658).  The behavior plan also worked on improving the child's attention to task for longer periods of time (Tr. p. 556).  In addition, the staff provided parent training in behavioral strategies (such as a token system) for the parents to use at home so the child could generalize his skills to different settings (Tr. pp. 737-39, 779, 782, 548-552), as well as providing home visits, didactic materials and in-services for the parents (Tr. p. 549). 

 

A progress report from CCCD dated October 12, 2004 (two days before the start of the hearing) indicated that the child had to date adjusted well to the program and formed relationships with the staff and students (Parent Ex. 68).  CCCD also evaluated the child and devised goals and objectives to address the child's academic needs and provided instruction in reading comprehension, receptive identification of body parts, receptive sight word identification, following directions/routines, answering yes/no questions and development of basic concepts (see Parent Ex. 73 at pp. 22-37, Parent Exs. 70, 71; Tr. pp. 544-47, 560-61).  The staff incorporated the use of the child's communication device as an aide in his learning with positive results (Tr. pp. 560, 569, 602). The parent testified that since her son has been at CCCD, his inappropriate behaviors had decreased, his communication skills had increased, and he was able to stay focused and pay attention for longer periods of time (Tr. p. 739).  The director of clinical services testified respondents' son was making meaningful educational and behavioral progress "across the board" at CCCD (Tr. p. 575).

 

Although CCCD does not provide related services of occupational or speech-language therapy, the record reveals that speech-language therapy was provided to the child regularly as a consult (Tr. pp. 533, 602), and several of the child's goals and objectives focused on his speech-language and occupational therapy needs (see Parent Ex. 73 at pp. 22-37; Tr. p. 560 [i.e., reading comprehension, handwriting, tying his shoe laces, etc]).  The fact that related services were not provided is not necessarily dispositive of whether or not the private school's educational program was inappropriate under the IDEA if the child derived educational benefits from the program (see, e.g., Application of a Child with a Disability, Appeal No. 00-008; Application of a Child with a Disability, Appeal No. 99-78).  In the instant case, given the nature of the child's disabilities, the record reveals that he did derive educational benefits from the instructional program provided by CCCD.  The benefits were derived, at least in part, from the specialized behavioral techniques and 1:1 instruction which he received at CCCD (see Application of the Bd. of Educ., Appeal No. 96-17).  As such, the parents have met their burden of proof in demonstrating that CCCD met their son's special education needs (see Application of a Child with a Disability, Appeal No. 03-108).

 

The final criterion for an award of tuition reimbursement is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; Mrs. C v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2nd. Cir. 2000]); see Carter, 510 U.S. at 16). In the instant case, the record reveals that the parent attended and participated in the CSE meetings and cooperated with respondent's CSE in the child's evaluations and preparing the child's IEP.  In the absence of any other equitable factor, I find that the parents' claim for tuition reimbursement is supported by equitable considerations.

 

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

 

As for respondents' cross-appeal for additional transportation expenses, while I agree with the impartial hearing officer's finding that respondents failed to specify or submit evidentiary proof for all transportation related expenses for which they were seeking reimbursement, no one disputes that the parent did transport the child to CCCD from July 28, 2004 through February 28, 2005.  I also note that the district's 2004-05 IEP required the district to provide transportation for the child to and from the Anderson School with an individual bus monitor (Dist. Ex. 2).  Consequently, I will order the district to reimburse respondents for transportation expenses limited to the cost of reasonable gas mileage and tolls incurred for transporting their son to and from CCCD for this time period, based upon school attendance records.

 

 

THE APPEAL IS DISMISSED.

 

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

IT IS ORDERED that petitioner reimburse respondents for the reasonable costs of gas mileage and tolls necessary to transport their son to CCCD from July 28, 2004 through February 28, 2005, based upon school attendance records.

 

 

 

 

Dated:

Albany, New York

 

__________________________

 

May 6, 2005

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

 

1  According to state regulations, an answer must be served within ten days after service of the petition on respondent (see 8 NYCRR 279.5).  If the final day for service falls on a Saturday or Sunday, service may be made on the following Monday (see 8 NYCRR 279.11).  In the instant case, respondents admit that the petition was served on respondents on Wednesday, March 9, 2005 (Letter from Respondents' Counsel to the Office of State Review, dated Mar. 18, 2005), which meant that any answer had to be served by March 19, 2005, but since this fell on a Saturday, respondents had until Monday, March 21st to serve their answer on petitioner.  Respondents served their answer on Wednesday, March 23, 2005, two days after their time to serve had expired.  

 

2  At the time of the child's application to the Anderson School in the spring of 2004, the Anderson School accepted respondents' son into its Tier 1 6:1+6 classroom (six students, one teacher, and six teacher aides) (Tr. pp. 438-440); however, it was in the process of receiving approval from the State Education Department for a new school-wide staffing rate of 6:1+3.5, after which the school's educational coordinator testified that it would no longer be accepting students with IEPs that mandated a 1:1 individual aide (Tr. pp. 446).  By the time of the hearing, on November 9, 2004, the educational coordinator testified that they had received approval for the rate change, and that current staffing for the 2004-05 school year was only required to be 6:1+3.5 across all classrooms (Tr. pp. 491-92).  She stated that respondents' son would still have been in a 6:1+6 classroom (Tr. pp. 492-93, 497-98), but clarified that this would not be the same as an individual aide assigned specifically to the child, which is why the Anderson School had requested that this provision be removed from the child's IEP (Tr. pp. 501-03).