The State Education Department
State Review Officer

No. 05-038





Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of Rye



Mayerson & Associates, attorney for petitioners, Gary S. Mayerson, Esq., of counsel


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





Petitioners appeal from the decision of an impartial hearing officer which denied their requests to be reimbursed for their daughter’s tuition costs at the Devereux Millwood Learning Center (Devereux Millwood) for the 2004-05 school year and for the cost of a supplemental program of applied behavioral analysis (ABA) therapy provided to their daughter at home during that school year.  The appeal must be dismissed. 


Petitioners’ daughter was six years old and attending Devereux Millwood at the commencement of the hearing in October 2004.  Devereux Millwood has been approved by the Commissioner of Education to contract with school districts to instruct students with disabilities.  The child’s eligibility for special education as a child with autism (Dist. Ex. 3 at p. 1) is not in dispute in this proceeding. 


Petitioners’ daughter was diagnosed with a pervasive developmental disorder (PDD) as a preschool student (Dist. Ex. 12 at p. 1) and received specialized preschool instruction and support services including speech-language therapy, occupational therapy (OT), and ABA (id.).  Prior to attending kindergarten during the 2003-04 school year at Midland Elementary School (Midland), petitioners’ daughter attended the Keller School (Keller) as a preschool student (Tr. p. 267; see Parent Exs. 1, 4, 16, 25; Dist. Ex. 18 at p. 1).  Keller is a private, not-for-profit, publicly funded preschool program for children with disabilities (Tr. p. 262).


During the 2003-04 school year, the child attended the kindergarten special class at Midland as recommended by respondent's CSE.  The class, which had a recommended student to staff ratio of 8:1+2 (Dist. Ex. 5 at p. 1), contained four students, a special education teacher and two teacher aides (Tr. pp. 267-68).  Related services included individual speech-language therapy once a week for 30 minutes, speech-language therapy twice a week in a group of three for 30 minutes, and OT twice a week in a group of three for 30 minutes (Dist. Ex. 5 at p. 1). 


As part of its three-year reevaluation of petitioners’ daughter, respondent’s school psychologist conducted a psychological evaluation in September 2003 (Dist. Ex. 12). Administration of the Wechsler Preschool and Primary Scales of Intelligence-Third Edition (WPPSI-III) yielded scores falling in the deficient range of functioning including a verbal IQ standard score of 57 (.2 percentile), a performance IQ standard score of 49 (<.01 percentile), and a full-scale IQ standard score of 49 (<.01 percentile) (Dist. Ex. 12 at p. 2).  Testing demonstrated significant weakness in the child's ability to combine motor, perceptual skill, speed to a task, and the ability to follow directions (Dist. Ex. 12 at p. 4).  The evaluator concluded that the child’s significant language and motor weaknesses impacted her cognitive functioning and overall performance in school (Dist. Ex. 12 at p. 3). 


The child’s mother completed the Vineland Adaptive Behavior Scales: Interview Edition in September 2003.  The results indicated that the child, who was five years and seven months old at the time of the evaluation, evidenced moderate delays in communication (standard score [SS] of 46/age-equivalent [AE] of 1.5), socialization (SS of 47/2.2 AE) and a mild delay in daily living skills (SS of 49/2.4 AE) (Dist. Ex. 12 at pp. 1, 3).  Communication was her greatest area of weakness (Dist. Ex. 12 at p. 4).  The child was able to take a bath with assistance, put toys away when asked, and was toilet trained through the night (Dist. Ex. 12 at p. 3).  The evaluator indicated that she was unable to help with chores, understand the function of money or answer the telephone appropriately (id.).  The child was able to imitate simple adult movements, show a desire to please others and reach for a familiar person (Dist. Ex. 12 at pp. 3, 4).  She was unable to play with toys alone, interact with others for a simple game, or imitate a complex task (id.).  


A classroom observation conducted as part of the psychological evaluation (see Tr. pp. 1028, 1032) indicated that the child was able to follow simple one step directions (Dist. Ex. 12 at p. 2).  She was able to answer simple questions, read, identify words in print, complete certain math tasks independently, state the day of the week, and follow simple calendar patterns using colors (id.).  She did not spontaneously generate language (id.).  At times she threw herself on the floor, but was easily redirected by the teacher (id.).  Her play skills were repetitive and perseverative (id.).


The child received an educational evaluation in September 2003 and was administered the Wechsler Individual Achievement Test–II (WIAT-II) (Dist. Ex. 11).  The child's math, reading and written subtest scores placed her close to grade level.  She fell slightly below grade level on listening comprehension and math reasoning subtests.  In particular, on the word-reading subtest, the child achieved a superior range standard score of 129 (97th percentile/1.5 grade equivalent [GE]).  On the spelling subtest, the child achieved a very superior range standard score of 135 (99th percentile/1.5 GE).  On the numerical operations subtest, the child achieved an average range standard score of 106 (66th percentile/K.5 GE).  On the math-reasoning subtest, the child achieved a low average standard score of 81 (tenth percentile/PreK-5.1 GE).  On the listening comprehension subtest, the child achieved a low average standard score of 83 (13th percentile, PreK-5.1 GE).  The teacher reported that the child’s scores on the WIAT-II were consistent with her performance in the classroom.  She indicated that while the child was able to perform many tasks with ease, when more complex language was presented, especially without the use of visual aids, she had more difficulty performing.


On the Clinical Evaluation of Language Functions - Preschool (CELF-Preschool), administered in November 2003, the child received a receptive language standard score of 50 (first percentile) (Dist. Ex. 7 at p. 1).  Her expressive language standard score could not be calculated (see Dist. Ex. 7 at p. 1).  The evaluator concluded that petitioners’ daughter demonstrated serious receptive and expressive language delays, with weaknesses in the areas of attending to language, processing auditory information and in spontaneous expressive language skills (Dist. Ex. 7 at p. 2).  Administration of the Peabody Picture Vocabulary Test-III (PPVT-III), a test of receptive vocabulary, yielded a standard (and percentile) score of 72 (<0.1 percentile) (Dist. Ex. 7 at pp. 1, 2).  Despite the child's limited receptive and expressive language skills, which included difficulty in following a story or in following mainstream whole class activities, the evaluator reported that petitioners’ daughter demonstrated areas of growth (Dist. Ex. 7 at p. 2).  She was able to follow simple directions, understand routines and readily greeted familiar people when they entered a room (id.).  


An occupational therapist evaluated the child in November 2003 and reported that  the child demonstrated difficulty processing sensory information at times and could present with frustration behaviors such as throwing her crayons or pencils (Dist. Ex. 9 at pp. 1-2).  She concluded that petitioners’ daughter demonstrated several high level skills in areas including spatial orientation and graphomotor skills (Dist. Ex. 9 at pp. 1, 2).  She also noted that the child enjoyed participation in activities that encouraged vestibular stimulation and movement, which she craved (Dist. Ex. 9 at p. 2). 


Respondent’s CSE, with petitioners in attendance, met for the triennial review of the child in January 2004 (Dist. Ex. 6 at p. 3; Tr. pp. 436-37).  The CSE determined that the child continued to meet the criteria of a child with a disability with a classification of autism (Dist. Ex. 6 at p. 4).  It also determined that the child’s program would remain unchanged for the remainder of the 2003-04 school year and that mainstreaming would take place when appropriate (id.).


The CSE met for the child’s annual review on April 30, 2004 (Dist. Ex. 4 at p. 1; Tr. p. 35).  The child’s special class teacher reported that the child had academic strengths and had made progress in class in a number of different areas and on each of her individualized education program (IEP) goals (Dist. Ex. 4 at pp. 3, 4).  The mainstream teacher indicated that the child had participated and benefited in that setting and it was also reported that the child’s mainstream experiences had been positive (id.).  Continuing delay and difficulty were noted in the area of speech-language but progress in those areas was also reported (id.).


For the 2004-05 school year, the April 30, 2004 CSE recommended placement in a special class with a student to staff ratio of 8-1+2 for half the day and a regular first grade classroom for the other half of the day (Dist. Ex. 4 at pp. 1, 4).  A shadow aide, who would be assigned to two children, would assist the child in the mainstream to attend and complete tasks (Dist. Ex. 4 at p. 1; Tr. p. 77).  The CSE recommended that individual speech-language therapy continue to be provided once a week for 30 minutes and speech therapy in a group of three continue to be provided twice a week for 30 minutes (Dist. Ex. 4 at pp. 1, 4).  In addition to recommending that the child continue to receive OT in a group of three twice a week for 30 minutes, the CSE added an individual session of OT once a week for 30 minutes (see Dist. Ex. 4 at pp. 1, 4).  The CSE also recommended one hour per month of parent training to assist in the transfer and generalization of skills the child acquired in school, to the home (Dist. Ex. 4 at pp. 1, 4).  As an extended school year program, the CSE recommended speech-language therapy for 30 minutes, twice a week in a group of three from July 7 to August 14, 2004 to address social goals (id.).  Petitioners disagreed with the CSE’s recommended program at the meeting (Dist. Ex. 4 at p. 4).  They were concerned about the amount of experience the child’s new special class teacher had with autistic children and also felt that there was an expanding gap between the child and her peers and that their daughter was not generalizing and transferring what she was learning (id.). 


At the end of the school year, because of the persistence in the child’s “self-talk”, “air-writing”, and other stereotypical behaviors, and in order to provide the child’s new teacher for the 2004-05 school year with a behavioral framework for the child, the special class teacher conducted a functional behavioral assessment (FBA) (see 8 NYCRR 200.1[r]) (Dist. Ex. 15; Tr. pp. 311-12, 316, 320, 499, 521, 569).  The FBA identified specific behavior, did so in concrete terms, set out the contextual factors that contributed to (“triggered”) the behavior, and indicated the reasons for the behavior (see Dist. Ex. 15).  The FBA also included a number of behavioral goals for the child and identified particular strategies to facilitate reaching those goals (Dist. Ex. 15 at p. 7).


End-of-year reviews reported that petitioners’ daughter made progress in the 2003-04 school year.  A progress report for the IEP goals and objectives showed the extent to which the child had made progress in meeting her annual IEP goals and short term objectives for the 2003-04 school year (Parent Ex. 34).  The progress report indicated that petitioners’ daughter had done “very well” toward accomplishing her study skills goal and objective (Parent Ex. 34 at pp. 1, 2). The report indicated that by the end of the second marking period the child had mastered the majority of her reading and writing goals and objectives and that by the end of the third marking period she had also mastered all of her mathematics goals and objectives (Parent Ex. 34 at pp. 1, 2-4).  With respect to her speech and language goals and objectives, the progress report indicated that at the end of the school year, the child had mastered the objective relating to the use of greetings and introductions (Parent Ex. 34 at pp. 1, 5).  She was making satisfactory progress in objectives relating to the establishment of eye contact, the understanding and correct use of “no” and “not”, the ability to use and understand simple yes or no questions, the understanding and use of basic “Wh” questions, the initiation of conversational utterances and the decrease in echolalic speech (Parent Ex. 34 at pp. 1, 4, 5).  She was progressing in objectives relating to the maintenance and control of eye contact when communicating, the use and comprehension of basic prepositions, and in decreasing perseverative speech (id.).  With respect to her social, emotional, and behavioral goals and objectives, the progress report indicated that by the end of the second marking period the child had mastered the objective relating to the identification of her gender and the gender of others (Parent Ex. 34 at pp. 1, 5).  By the end of the school year she had mastered objectives relating to the ability to play and share materials without being frustrated, the ability to play and take turns without being frustrated and to play cooperatively with others (Parent Ex. 34 at pp. 1, 5, 6).  She was making progress in objectives relating to participation in associative play and the initiation and maintenance of social interaction (id.).  With respect to her OT related motor goals and objectives, the IEP progress report indicated that by the end of the 2003-04 school year, petitioners’ daughter had completed 18 objectives, made satisfactory progress in six other objectives, and had made progress on one remaining objective (Parent Ex. 34 at pp. 1, 6-10).


The child's special class teacher indicated on the regular kindergarten report card, issued to all kindergarteners by respondent, that by June 2004 the child made “lots of gains”, that she was able to work with “many of the skills presented in kindergarten” but that “communicating in writing or verbally” was a general area of difficulty (Dist. Ex. 26 at p. 5).  The teacher also reported that the child liked to write, and was learning to do that with the use of prompts.  She was able to complete sentences that were started for her and she was following directions much better.  She was able to predict various routines, was more independent in her work, and was able to complete simple worksheets without assistance from the teacher to remain on task. 


The child’s special class teacher provided an end of the year narrative report stating that compared with the beginning of the year, the child answered many questions while looking at the teacher during group lessons (Dist. Ex. 17 at p. 4).  The report stated that she was attending better to class activities, that she was sitting appropriately in class and that her self-stimulatory behavior had decreased (id.).  The report further stated that she was responding more quickly to cues relating to her behavior and that with the help of an aide she had been able to participate in “active response” lessons and activities she had attended in the mainstream class setting (Dist. Ex. 17 at p. 5).  The narrative also reported that petitioners’ daughter was able to follow daily school routines with little assistance (id.).  She was able to follow certain multistep directions, was able to follow through on toileting routines and she was easily motivated by praise (id.).  Tangible reinforcers were needed when she was presented with more difficult tasks (id.).  The report noted that it was “extremely important” that the goals worked on at school were followed at home (id.). 


Petitioners obtained private psychological and educational evaluations of their daughter in July 2004 (see Dist. Exs. 18, 19).  They also arranged a private observation of their daughter in her special class and while engaged in activity with a regular education kindergarten class for part of a day in May 2004 (see Dist. Ex. 20).  The results of the cognitive testing were consistent with the test results obtained by respondent earlier that school year (see Dist. Ex. 3, pp. 4-5).  The private evaluation contained the recommendation, among other things, that the child attend a 12 month program in a school specializing in ABA and that the child’s program include a minimum of 15 hours a week of ABA at home (Dist. Ex. 18 at p. 9).  Parent training was to be provided to help petitioners understand how to use behavioral reinforcement with their daughter especially pertaining to the child’s communication (id.).


The CSE met on July 13, 2004, and among the issues reviewed and discussed were the recommendations of the private evaluators and the FBA completed by respondent (Dist. Ex. 3 at pp. 1, 4-5; Tr. pp. 52, 54, 60-62, 185-86, 194-95, 330, 337-38, 1120, 1268). Petitioners’ attorney as well as an attorney for respondent attended the meeting (Dist. Ex. 3 at p. 4).  The special class teacher reviewed the child’s progress since the last CSE meeting as well as the child’s recent behavior (Dist. Ex. 3 at p. 4; Tr. pp. 740-41, 746).  During the meeting, the CSE identified, reviewed, and discussed the child’s needs, the progress she had made during the course of the 2003-04 school year, and her present levels of performance with respect to her needs (Tr. pp. 57, 59, 71, 347, 637, 1282).  The CSE reviewed the goals and objectives and made numerous changes in them so that they would be more specific and detailed than those in the April IEP (Tr. pp. 71, 348, 637, 985, 1270-71; compare Dist. Ex. 4 at pp. 5-7 with Dist. Ex. 3 at pp. 6-10).  As part of the development of the IEP for the 2004-05 school year (Dist. Ex. 3), the CSE also reviewed documents including the child’s speech-language triennial evaluation, a subsequent speech-language progress report, her OT triennial evaluation, a subsequent March 2004 OT progress report, and her November 2003 triennial psychological and educational evaluations (Tr. pp. 36, 40-48).


The July 13, 2004 CSE, in the IEP it developed for the 2004-05 school year, continued the speech-language and OT recommendations made at its April 2004 meeting (see Dist. Ex. 3 at pp. 1, 5; Dist. Ex. 4 at pp. 1, 4).  It continued its recommendation that the child divide her time between a special class and a regular education first grade class and recommended that she spend four hours a day in the special class and the remainder of the day in a regular education first grade class or other mainstream activities (Dist. Ex. 3 at pp. 1, 2, 5).  Due to a change in enrollment, the CSE reduced the student to staff ratio of the recommended first grade special class to 6:1+1 (Tr. p. 75; Dist. Ex. 3 at pp. 1, 5).  The CSE also retained its recommendation for a shadow aide to assist petitioners' daughter when she was in the mainstream setting (Dist. Ex. 3 at pp. 1, 5; Tr. p. 77).  In addition, the CSE specified that within her special education first grade classroom, petitioners’ daughter would receive a minimum of 60 minutes of instruction a day to meet her language needs (Dist. Ex. 3 at p. 1).  The CSE also increased the frequency of its recommended parent training from one hour per month to 30 minutes per week, to facilitate the transfer and generalization to the home of the skills the child acquired in school (Dist. Ex. 3 at pp. 1, 2, 5-6; Tr. p. 207).  The CSE also added a speech-language consultation with petitioners for an hour each month, which was to address the generalization of the child’s speech-language skills to home (Dist. Ex. 3 at pp. 2, 5; Tr. p. 207).  It also included a special education consultation for two hours a week in order to provide a liaison for the child’s services and a consultation in behavior management and instructional modification to the child’s first grade classroom teacher (see 8 NYCRR 200.13[a][6]; Dist. Ex. 3 at pp. 1, 2, 5).  The child’s previous kindergarten teacher, who was respondent’s new CSE Chairperson, was to provide this consultation service (Tr. p. 352).  The IEP for the 2004-05 school year also referenced the FBA that had been prepared (Dist. Ex. 3 at p. 4), included relevant goals and objectives with respect to the behavior addressed by the FBA (Dist. Ex. 3 at p. 9), and identified strategies, including positive behavior interventions relative to that behavior (Dist. Ex. 3 at pp. 2, 4; see also 8 NYCRR 200.4[d][3][i]).  The CSE augmented the extended school year program respondent would provide to the child by recommending a special class program of ABA for three hours a day/15 hours a week as well as speech-language and OT (Dist. Ex. 3 at pp. 2, 5).


Petitioners unilaterally placed their daughter at Devereux Millwood for the summer of 2004 and the 2004-05 school year.  By letter from their counsel dated August 6, 2004, petitioners requested an impartial hearing, seeking transportation, tuition and related expenses for their daughter's attendance at Devereux Millwood for the 2004-05 school year and the summer of 2004 (Pet. Ex. C).  This included the separate amounts charged for speech and language and OT services, and for supplemental extended day ABA services during that school year.  Petitioners advised respondent’s CSE Chairperson that they believed the IEP for the 2004-05 school year, including the summer 2004 portion thereof, was inadequate and that respondent had failed to offer petitioners’ daughter a free appropriate public education (FAPE).  


The impartial hearing commenced on October 5, continued on October 6, 12, 13, 18, November 1, and December 6 and 7 and concluded on December 21, 2004.  On the first day of the hearing, petitioners withdrew their claim for reimbursement for summer 2004 services and agreed that their claims were limited to tuition and program costs for the 2004-05 school year and the cost of the student's extended day ABA program from September 2004 through the end of the 2004-05 school year (IHO Decision, p. 2; Tr. pp. 19-21).  The parties agreed that transportation was not an issue (IHO Decision, pp. 1-2).  The impartial hearing officer rendered a decision dated February 24, 2005.  He concluded that the services offered by respondent for the 2004-05 school year were appropriate and denied petitioners' request for reimbursement.


Petitioners appeal “from each and every part” of the impartial hearing officer's decision, contending that the impartial hearing officer erroneously found that respondent had provided their daughter with a FAPE and failed to address the appropriateness of the parents' placement at Devereux Millwood.  Their specific contentions include: respondent did not properly assess the child’s present levels of performance as it related to “interfering behaviors”; respondent developed an IEP including a placement decision for the 2004-05 school year without first conducting an appropriate FBA; the IEP for the 2004-05 school year had inadequate goals and objectives in that they were not sufficiently specific and measurable; and the CSE did not consider the “full continuum” of services for the 2004-05 school year.1 


The purpose behind the IDEA (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a 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 (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 v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  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]).


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. 04-046; 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 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]; see also 8 NYCRR 200.4[d][2][i]).  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, Section 1, Question 1).


I concur with the impartial hearing officer’s finding that the program offered by respondent to petitioners’ daughter for the 2004-05 school year was appropriate.  There is no showing that any procedural error resulted in the loss of educational opportunity, seriously infringed on petitioners’ opportunity to participate in the IEP formulation process, or compromised the development of an appropriate IEP in a way that deprived their daughter of educational benefits under that IEP.  The July 13, 2004 IEP developed by respondent for the child (see Dist. Ex. 3) was reasonably calculated to enable her to receive educational benefit.  It accurately reflected the results of evaluations, including a psychological evaluation that incorporated a classroom observation, as well as an educational evaluation, a speech-language evaluation, an OT evaluation, and a functional behavioral assessment.  These evaluations, as well as updated speech-language and OT progress reports and analyses of the child’s progress prepared by her special education teacher, properly identified the child’s particular needs at the time the CSE developed the IEP for the 2004-05 school year.  The child’s needs were properly described in the IEP.  The CSE established annual goals and short-term instructional objectives including relevant speech-language, social, emotional, behavioral, and motor goals and objectives related to the child’s particular needs in each of these areas. The IEP also provided for appropriate special education services to be provided to petitioners’ daughter including an extended school year program for the summer 2004 term, placement in a small first grade special education class providing her with a 2:1 shadow aide (see 8 NYCRR 200.6[g][4][ii]), and individual and small group speech-language and OT as related services. To provide for the generalization of the skills that the child would learn in school to her home activities, the CSE made provision for petitioners to receive weekly parent training and speech-language consultation.  The IEP also provided a weekly consultation by a special education teacher to coordinate the child’s entire program and to provide information to the child’s classroom teacher relative to behavior management and instructional modification. 


As the impartial hearing officer found, petitioners’ daughter made progress during the course of the 2003-04 school year.  The fact that the recommended program for the 2004-05 school year retained the essential elements of the previous year’s program and also provided the child with additional services gives further support to the impartial hearing officer’s determination that the proposed 2004-05 program was appropriate.  After a full examination of the record, I conclude that at the time of its development at the July 13, 2004 CSE meeting, the IEP offered by respondent was reasonably calculated to enable the child to receive educational benefits.


Petitioners’ contention that respondent did not properly assess their daughter’s present levels of performance, as it related to her interfering behaviors has no merit.  The CSE specifically discussed the child’s behaviors at the July 13, 2004 CSE meeting and also reviewed the FBA that focused on the child’s interfering behaviors.  Further, the IEP stated that the child needed support to maintain engagement, to participate in group and one to one activities and also to help guide her in appropriate behavior (Dist. Ex. 3 at p. 4).  The IEP also contained a specific objective and relevant goals dealing with socially acceptable behavior in the school environment (Dist. Ex. 3 at p. 9).  It further made reference to a positive reinforcement plan and to other strategies to address the child’s interfering behaviors.  The positive reinforcement plan specifically included the use of feedback and praise to inform the child of desired behavior, extra time to respond and complete tasks, and encouragement to the child to interact and to use vocal language (Dist. Ex. 3 at p. 2). Other strategies contained in the IEP included reminders to stay on task and redirection by cueing (Dist. Ex. 3 at pp. 2, 4).  These positive behaviors and strategies were part of the plan for the child developed as a result of the FBA (see Dist. Ex. 15 at p. 7).


Petitioners’ contention that respondent developed an IEP including a placement decision for the 2004-05 school year without first conducting an appropriate FBA also has no merit.  As indicated above, respondent conducted an FBA near the end of the school year, prior to the July 2004 CSE meeting and it did so when the child’s behaviors warranted it.  I find that respondent’s FBA properly met the requirements of 8 NYCRR 200.1(r).  The FBA identified problem behavior, defined that behavior in concrete terms and identified the contextual factors that contributed to that behavior (see Dist. Ex. 15 at pp. 2, 5).  The FBA indicated the general conditions under which the behavior generally occurred and the probable consequences that served to maintain it (see Dist. Ex. 15 at p. 6).


With respect to petitioners’ claims that the goals and objectives were inadequate because they were not sufficiently specific and measurable, I agree with the impartial hearing officer that goals were overly broad.  However, consistent with his conclusion relative to the IEP’s objectives, I find that the objectives set forth in the IEP were measurable and provided the requisite specificity to enable the child’s teachers and petitioners to understand the CSE’s expectations with respect to each goal and what the child would be doing over the course of the school year (see Application of the Bd. of Educ., Appeal No. 04-031; Application of a Child with a Disability, Appeal No. 03-102; Application of the Bd. of Educ., Appeal No. 02-025; Application of a Child with a Disability, Appeal No. 99-92). 


I find that respondent has met its burden of proving that it offered to provide a FAPE to the student for the 2004-05 school year.  Having so determined, the necessary inquiry is at an end and there is no need to reach the issue of whether Devereux Millwood 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 petitioners’ remaining contentions and I find them to be without merit.





Albany, New York




May 16, 2005






1  I note that petitioners' appeal also alleges inadequacies with respect to the child’s program during the 2003-04 school year.  However, such claims are not properly raised here as the parties stipulated that the claims at the hearing were to be limited to the 2004-05 school year (Tr. p. 16).