The State Education Department
State Review Officer

No. 05-053

 

 

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

 

Appearances:
Andrew K. Cuddy, Esq., attorney for petitioners

Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP, attorney for respondent, Edward J. Sarzynski, Esq., of counsel

DECISION

Petitioners appeal from the decision of an impartial hearing officer which determined that the child's classification of other health impaired (OHI) and the individualized education program (IEP) respondent's Committee on Special Education (CSE) recommended for their son for the 2004-05 school year were appropriate.  The appeal must be dismissed.

At the time of the hearing, petitioners' son was eight years old, classified as OHI, and placed in a self-contained 12:1+1 third grade special education class, where he received related services of speech-language therapy, occupational therapy (OT), physical therapy (PT) and counseling, and was mainstreamed for specials (Joint Ex. 25).1

At the end of second grade during the 2003-04 school year, the child was referred for an independent psychological evaluation because of concerns expressed by both petitioners and school staff regarding the child's limited academic progress as well as his attentional deficits, limited social skills and manifestations of anxiety (Joint Ex. 3 at p. 4, Joint Ex. 9 at p. 1).  The independent psychological evaluation was conducted on April 5, 2004 (Joint Ex. 9).  The evaluator offered a diagnosis of Asperger's disorder and noted that Asperger's disorder included attention deficits (Joint Ex. 9 at p. 5).  The evaluator recommended that the child be taught using behavior management, emphasizing positive reinforcement, and offered additional recommendations for educational planning, including participation in a social skills building group and communication between school and home via a communication notebook (id.).  She further recommended that the child be evaluated by a medical professional with expertise in pervasive developmental disorders, use of medication to alleviate the child's anxiety, psychotherapy for the child and family therapy to assist petitioners in understanding their son's diagnosis (Joint Ex. 9 at p. 6).

CSE meetings were held on July 8, 2004, September 1, 2004 and October 18, 2004 to address the child's needs for the 2004-05 school year and to develop an IEP for the child (IHO Decision, p. 1).  When the CSE convened on July 8, 2004 to review the report from the independent evaluator, petitioners, who were accompanied by a non-attorney advocate, indicated their disagreement with the report, particularly with the diagnosis of Asperger's disorder (see Joint Ex. 12 at pp. 10, 16, 20-22; Tr. pp. 46, 90, 516-17).   They advised the CSE that their son had been evaluated by a neurologist, who opined that the child did not have Asperger's disorder and who recommended additional neurological testing and consideration of medication to address the child's anxiety (Joint Ex. 14 at p. 3).

On September 1, 2004 the CSE convened for the child's annual review and considered the findings and recommendations from the neurologist as well as other evaluations and progress reports (Tr. pp. 104, 445).  The committee recommended 2004-05 placement in a third grade self-contained 12:1+1 special education class with related services of speech-language therapy four times per week for 30-minute sessions in a small group, OT three times per week for 30-minute sessions in a small group and counseling once per week for 30 minutes in a small group (Joint Ex. 19 at pp. 69-72, Joint Ex. 20 at p. 12).  In response to concerns raised by the child's father regarding his son's gross motor deficits, the CSE recommended a PT evaluation and agreed to reconvene to review the results (Joint Ex. 20 at p. 7).  The CSE also recommended that the child's classification be changed from speech-language impaired to OHI (Joint Ex. 19 at pp. 68-69).  Petitioners, who were again represented by their advocate, agreed to this change of classification and also to the recommended program and placement (Tr. pp. 54, 63, 181, 357, 439, 681, 743).

The CSE convened again on October 18, 2004 to review the results of the recommended PT evaluation and a neuropsychological evaluation obtained by petitioners (Joint Exs. 24, 25).  Upon review of the PT evaluation, the CSE recommended that the child receive individual PT services twice per week for 30-minute sessions (Joint Ex. 25; Tr. p. 270).  A private neuropsychological evaluation report reviewed by the CSE concluded that the child did not exhibit "a typical presentation for Asperger's Syndrome" and suggested that some of his reported symptoms could be attributed to an anxiety disorder (Joint Ex. 17 at p. 6).  The evaluator offered a number of recommendations, including full-time placement in a self-contained special education class, continued speech-language therapy and OT, preferential seating and minimization of environmental stimuli, social skills training and coordination between school and home to ensure consistency (Joint Ex. 17 at pp. 7-8).  All of these recommendations had already been recommended by the CSE at the child's September 2004 annual review and had already been incorporated into the child's 2004-05 IEP prior to the CSE's review of the private neuropsychological evaluation report (Joint Exs. 19, 20).  

In addition to reviewing the PT and private neuropsychological reports, the October 18, 2004 CSE reviewed reports of the child's progress during the first five weeks of the 2004-05 school year (Joint Exs. 22, 23).  Teacher reports indicated that the child was making satisfactory progress in completing class and homework assignments on time and in participation in class discussions and had demonstrated improvement in organizing work, following oral and written directions and making constructive use of time (id.).  Additional teacher comments noted that the child was doing well with second grade math facts and was reading at the end-first to beginning-second grade level (id.).  The October 18, 2004 IEP was implemented on October 20, 2004 (Joint Ex. 25 at p. 1).  After the October 18, 2004 CSE meeting, three team meetings were held over a three-month period in November and December 2004 and January 2005, where topics such as the child's services, goals and progress were reviewed and discussed with petitioners (Tr. pp. 67-71).

        By letter dated December 5, 2004 petitioners informed respondent that they were rejecting the CSE's recommended program for their son for the 2004-05 school year and requested an impartial hearing alleging procedural and substantive errors and asking that the   child's classification be changed to “autism” (8 NYCRR 200.1[zz][1]) to access educational programs for students with autism (8 NYCRR 200.13) (Joint Ex. 1).  The impartial hearings were held on four days beginning on February 2, 2005 and concluding on March 4, 2005 (IHO Decision, p. 2).  The impartial hearing officer rendered his decision on April 20, 2005 and found that the alleged procedural violations were de minimus and did not justify the “nullification” of the IEP (IHO Decision, p. 5).  Moreover, he found that the classification of OHI was appropriate and that the record showed the child had made substantial progress in all areas (IHO Decision, p. 9).   He also found that the 2004-05 IEPs were appropriate and that the district offered a free appropriate public education (FAPE) to the child (IHO Decision, p. 9).

On appeal, petitioners raise several challenges regarding their son's 2004-05 IEP.  Petitioners allege that respondent failed to comply with requirements regarding the development and approval of the 2004-05 IEP.  Petitioners specifically allege: 1) that respondent withheld information from petitioners regarding Asperger's syndrome and information pertinent to the classification of autism, 2) the CSE did not have a physical evaluation or classroom observations before it while formulating the IEP, 3) the CSE developed the IEP prior to the determination of disability and classification of the child, and 4) that the IEP and a report of the evaluations upon which the recommendation of the IEP was based were never reviewed by respondent Board of Education. 

In addition, petitioners raise several other claims regarding their son's 2004-05 IEP and the April 20, 2005 impartial hearing officer’s decision.  Petitioners' central substantive allegation is that their son should be classified as a student with autism and not OHI.  Other claims raised are that the impartial hearing officer erred in: 1) finding that there was a consensus regarding the classification of OHI, 2) relying on an evaluation for which petitioners were denied reimbursement in a previous SRO decision (Application of a Child with a Disability, Appeal No. 05-001), 3) not ordering specially designed instruction in reading, math and speech services pursuant to the IEP, 4) not ordering a behavioral management plan, 5) not addressing the fact that the child was not placed in a self-contained class with children of similar needs, 6) not addressing transitional support services, and 7) in not addressing the allegation that the goals and objectives were not measurable, meaningful nor linked to present levels of performance. Petitioners request that the State Review Officer annul the impartial hearing officer’s decision, order respondent to address all the allegations raised and comply with the regulations associated with educational programs for students with autism (see 8 NYCRR 200.13).

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 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]). 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 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).

    An IEP must also include measurable annual goals, including benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a][2]; see 8 NYCRR 200.4[d][2][iii]).  In addition, an IEP must describe how the student's progress towards the annual goals will be measured and how the student's parents will be regularly informed of such progress (34 C.F.R. § 300.347[a][7]; 8 NYCRR 200.4[d][2][x]).

              I will first address the “procedural” violations alleged by petitioners.  Petitioners claim that information regarding Asperger's disorder and the classification of autism was withheld from them.  The record reflects that Asperger's disorder was discussed at CSE meetings which petitioners attended; petitioners actively participated in all three CSE meetings and were represented by an advocate at the July 8, 2004 and September 1, 2004 meetings.  Petitioners had opportunities to raise concerns and make suggestions regarding the implementation of the 2004-05 IEP and regarding their child's needs, including needs related to an April 2004 diagnosis of Asperger's disorder with which petitioners had expressed disagreement.  The child's father testified that the school psychologist "explained some things" about Asperger's disorder at the July CSE meeting but could not recall exactly what was discussed (Tr. pp. 758-59).

             In addition to the discussion of Asperger's disorder and the explanation of the recommended medical evaluation, the record reflects that petitioners participated and respondent addressed petitioners' concerns for their child's program.  The child's occupational therapist assistant (OTA) testified that the September 1, 2004 and October 18, 2004 CSE meetings were open to “everybody at the committee,” including the parents, noting that suggestions for change were developed and everyone present seemed to be in favor of the OHI classification  (Tr. pp. 175-76; Joint Exs. 20, 25).  Respondent's director of special education testified that all members participated in the September 1, 2004 CSE meeting when discussing present levels of performance (Tr. p. 514).  The director of special education testified that petitioners indicated that they did not agree with the diagnosis of Asperger's disorder when it was discussed at the July 8, 2004 meeting (Tr. pp. 516-17).  Petitioners testified that they didn't agree to the diagnosis of Asperger's disorder on September 1, 2004, but they wanted more information before ruling out the diagnosis (see Tr. p. 823).  Testimony reflects that all members concurred with the OHI classification when the IEP was initially developed at the September 1, 2004 CSE meeting (Tr. pp. 182, 438-39, 515, 678-81) and neither petitioners nor their advocate suggested any other classification other than OHI (Tr. pp. 518, 690; Joint Ex. 19 at p. 68).

         Between the September 1, 2004 and October 18, 2004 CSE meetings, a PT evaluation report was reviewed, and goals and objectives for math and reading were revised and made more specific based upon petitioners' suggestions (Tr. pp. 524-25).  The director of special education testified that because of petitioners' concerns, additions made to the IEP in October 2004 included reviewing the "need for additional classroom support and PT at the 20-week marking period or sooner if deemed appropriate by the parents" (Tr. pp. 525-26).  The director also testified that the child's present levels of academic performance were updated at the October 2004 CSE meeting to reflect his progress during the first five weeks of the 2004-05 school year, and the child's needs also were amended on the 2004-05 IEP to include a description of his need for a highly organized and multi-sensory classroom (Tr. p. 526).  According to the child's special education teacher, petitioners did not seek any changes to the 2004-05 IEP after the October 18, 2004 CSE meeting (Tr. p. 312).  Respondent's speech language pathologist testified that petitioners' remarks at the team meetings held in November, December and January of the 2004-05 school year suggested that the petitioners were pleased with their son's progress (Tr. pp. 67-69, 73) and the OTA further testified that at a January 2005 team meeting the child's mother became "a little teary eyed because of the progress that he had made" (Tr. p. 180).

           Petitioners also assert that the CSE was required to review a physical evaluation and classroom observation of the student in formulating the 2004-05 IEP. As to the first assertion, the Regulations of the Commissioner of Education state that a physical examination of the student is required for an initial evaluation (8 NYCRR 200.4[b][1][i]) (Application of the Bd. of Educ., Appeal No. 04-022). A new physical examination is not explicitly required for an annual review of the child’s IEP (id.; 8 NYCRR 200.4[f]).  Here, the 2004-05 IEP was developed pursuant to an annual review and as such, given the facts presented and that the 2003-04 IEP and other current information were considered, a physical evaluation was not required.  As to the second assertion, classroom observations are required as part of a student's initial evaluation (8 NYCRR 200.4 [b][1][[iv]) and any reevaluation, the latter which is required at least once every three years (34 C.F.R. § 300.533[a][1][ii]; 8 NYCRR 200.4[b][4]).  The child's reevaluation took place in 2004 and the CSE had the child's January 1, 2004 triennial evaluation report (Joint Ex. 7 at p. 2), which included a classroom observation, while formulating the 2004-05 IEP.  By the end of the October 18, 2004 CSE meeting, respondent's CSE had reviewed multiple evaluations and reports that included a neurological evaluation (Joint Ex. 14), a private neuropsychological evaluation (Joint Ex. 17), an independent psychological evaluation report (Joint Ex. 9), and a triennial evaluation (Joint Ex. 7), while determining the child's needs for the 2004-05 IEP.  The record indicates that the child’s IEP for the 2004-05 school year was developed with sufficient evaluative information to accurately reflect the child’s needs.

            Petitioners also allege that the CSE erred by developing the IEP prior to the determination of the child's classification.  Classification was determined at the latter half of the September 1, 2004 CSE meeting after much of the contents of the IEP were discussed (Tr. pp. 446-47; Joint Ex. 19 at p. 68).  There is persuasive testimony that the child's 2004-05 IEP was developed based upon the child's needs (Tr. pp. 24, 108, 113, 175, 222, 446-47, 518, 526, 535).  The director of special education testified that the CSE reviewed the neurological evaluation report (Joint Ex. 14), present levels of educational performance and classification, then discussed recommended services, goals and objectives at the September 1, 2004 meeting (Tr. pp. 510-11).  The school psychologist testified that the child's present levels of performance were presented at the September 1, 2004 meeting and the IEP developed by the CSE on that date was based upon the child's needs, not on a presumed classification (Tr. p. 447).

           Based on my review of the record, I do not find that classifying the child at the latter half of the September 1, 2004 CSE meeting affected the child's right to a FAPE, especially as the IEP that was developed addressed the child's identified needs.  I note that the goals and objectives were discussed after the determination of the classification.

I shall now address petitioners' other allegations.  Petitioners allege that the impartial hearing officer erred in not ordering that specially designed instruction in reading and math be provided pursuant to the child's IEP.  The October 18, 2004 IEP includes a description of the child's present levels of performance which states that the child requires small group instruction and frequent repetition in a "highly organized and multisensory classroom"  (Joint Ex. 25 at p. 2).  This statement, developed with petitioners’ participation, provides information about the child sufficient to support the CSE's recommendation for the 12:1+1 classroom in which the child was placed.

Although an IEP must provide for specialized instruction in the child's areas of need – in this case, reading and math  – a CSE is not required to specify methodology on an IEP.  Rather, the precise teaching methodology to be used by a child’s teacher is generally a matter to be left to the teacher (Application of a Child with a Disability, Appeal No. 94-26; Application of a Child with a Disability, Appeal No. 93-46; Matter of a Handicapped Child, 23 Ed. Dept. Rep. 269). Therefore, respondent’s decision not to indicate a specific teaching methodology did not render the IEP inappropriate. The child’s IEP fulfills the requirement for specialized instruction through its recommendation that the child be placed in a self-contained class as well as through its goals and objectives for reading and math, which were developed with the petitioners' participation.  Petitioners' child has an identified need to improve skills in decoding and sight word recognition (Joint Ex. 25 p. 2).  His reading goal addresses his need through an objective for sight vocabulary as well as objectives for improving reading decoding in both reading lessons and in other classroom activities (Joint Ex. 25 p. 6).  The child's identified math need, to improve his skills in numeration, calculation and word problems, is addressed through a math goal with objectives for computation and for the math processes of grouping and adding without regrouping (Joint Ex. 25 pp. 2, 6-7).  Quarterly progress reports indicate that these objectives address both computation and story problems, as the teacher reported the child's performance of skills with and without the context of story problems (Joint Ex. 36 at pp. 3-4).

The child's special education teacher testified in detail regarding implementation of reading and math objectives.  His testimony describing the various methods of instruction used, and the daily adjustment of these strategies based upon the child's unique needs adequately addressed the child's identified need for instruction "using a variety of techniques to sustain his attention" (Joint Ex. 25 at p. 2; Tr. pp. 348-49, 351, 359).

            Petitioners also allege that the impartial hearing officer erred by not directing that a behavioral intervention plan be formulated (BIP).  The October 18, 2004 IEP’s present levels of performance state that the child has difficulty focusing on tasks but is "not outwardly defiant" (Joint Ex. 25 p. 2).  Petitioners' son is described as having difficulty completing tasks because of his distractibility and also because of his difficulty in attending to teacher directions  (id.).  Under management needs, the IEP states that the child's anxiety and inattention impede his availability for instruction but that he is not deliberately disruptive (Joint Ex. 25 at p. 4).  He is described in the IEP as "a kind child" who is "eager to please," "offers to help the teacher," and follows classroom rules "to the degree that he can" (Joint Ex. 25 at p. 5). His identified management needs, as developed in accord with meetings at which petitioners actively participated, call for a "highly structured classroom with set rules and predictability"  (id.).

            The record indicates that the child's primary behavioral difficulty is a result of his poor attention skills (Joint Ex. 25 p. 4).  The IEP acknowledges that the child engages in behavior, which, while not deliberately disruptive to the class, interferes with his ability to benefit from instruction (id.).  Present levels of performance, developed with participation by petitioners, describe the child's behaviors, and the IEP contains a goal to address them (id.).  The goal, to improve work behaviors and task orientation in the classroom, has objectives for attention, timely task completion, and for developing responsibility for class routines (Joint Ex. 25 at p. 7). 

Based on the record, I am not persuaded that more is required to address the child's distractibility.  The IEP notes repeatedly that the child requires a 12:1+1 setting and a structured environment to address his attention deficits (Joint Ex. 25).  Teacher testimony suggests that the strategies within the classroom are effective, and the special education teacher indicated in testimony that the child was not disruptive and not a behavior problem (Tr. p. 376).  Quarterly progress reports support teacher testimony, indicating that the structure of the 12:1+1 classroom allowed the child to progress in areas affected by his management needs, and suggest that the overall structure of the program adequately addressed his behavioral needs. (Joint Ex. 36 at pp. 4-5).

Petitioners allege that the impartial hearing officer erred by not addressing the fact that the child was not placed in a self-contained class with children of similar needs.  The record contains three class profiles (Joint Ex. 35).  One profile describes the six children who were in the 12:1+1 classroom for most of the day (Joint Ex. 35 at p. 1).  Four of the children, including petitioners' son, were classified OHI and one child was classified speech-language impaired, which was petitioners' son's previous classification.  The sixth child was classified mentally retarded.  Reading levels for the six children ranged from kindergarten to the 2.5 grade level and math levels ranged from kindergarten to the 2.6 grade level, a range of less than three years in both reading and math.  The age range of the six children was less than two years.

            Statements on the class profile indicated that the children in the class all benefited from a structured setting with clear expectations and consequences, and all required constant positive reinforcement and encouragement (Joint Ex. 35 at p. 1).  All of the children were further described as requiring a few extra minutes to transition from one activity to the next and as needing "constant practice in applying social graces" as well as occasional reminders of appropriate behaviors.  All six children received speech-language services to address expressive language needs, and all received PT and/or OT services.  None of the children were described as having identified behavior difficulties.

            A second profile describes the child's reading group, which consisted of a total of four children, three of whom were classified speech-language impaired (Joint Ex. 35 at p. 2).  The reading levels of the children had a range of two months, between grade levels 2.3 and 2.5.  The teacher noted that the children in the group were able to identify words at this level but all had comprehension abilities at approximately the 1.9 grade level.  The age range for this reading group was one year, four months.  None of the children had identified behavioral difficulties. 

The math grouping on the third profile placed the child with two children classified learning disabled and one classified speech-language impaired (Joint Ex. 35 at p. 3).  The age range of the children on this profile was less than two years and the child's math levels were between grades 2.3 and 3.0.  Teacher comments on the profile sheet noted that the children in this group exhibited strengths in math fluency and calculation and required assistance in developing skills involving word problems and critical thinking.  The children were all described as benefiting from use of manipulatives for math.  None of the children described in the profile had identified behavior difficulties.

In testimony, the special education teacher described the children in his class, noting that petitioners' son's needs were similar, particularly in the social domain (Tr. pp. 338-40).  The teacher's description of the class and of the reading and math groups were consistent with the information in the class profile and supported respondent’s assertion that the child was placed in a class with an appropriate groupings of children with similar needs.    

            Petitioners allege that speech services were not being provided in accordance with the IEP.  When the speech-language therapist testified regarding the structure of her push-in and pull-out program, she indicated that she worked with different push-in groups during a one-hour period two times per week (Tr. pp. 93, 101-02).  The speech-language therapist stated that her therapy sessions were of 20 to 25 minutes' duration which, for those two of the four periods specified in the October 18, 2004 IEP, would appear to be insufficient to fulfill the CSE recommendation for 30-minute sessions four times per week (Tr. p. 93).  However, the classroom teacher clarified the speech-language therapist's testimony by explaining that the remaining ten minutes of each session were a continuation of the therapy sessions in which the therapist and the teacher encouraged and monitored the use of language strategies which had just been taught in the first 20minutes of the session (Tr. pp. 344-45).

Petitioners allege the child was not receiving transitional support services.  In the social development section of the October 18, 2004 IEP, the child's present levels of performance describe him as becoming anxious when changes occurred in the school and needing prompts regarding schedule changes to reduce anxiety (Joint Ex. 25 at p. 4).  However, the October 18, 2004 IEP, developed with petitioners’ participation and agreed to by all members of the CSE, does not specifically mention difficulty with transitions.  The parent member of the CSE testified that the CSE had discussed the child's difficulties with transitions to mainstream classes, and had recommended placement in a full-time self-contained 12:1+1 classroom to address the child's increased anxiety when transitioning to mainstream classes (Tr. p. 38).  The child's special education teacher testified regarding the difficulties all of the children in his class experienced with transitions, described the strategies he employed to ensure that all children were adequately prepared for any transition to mainstream activities such as specials, and noted that the children in his class were accompanied to specials by either a teacher or a teacher aide, and did not experience difficulties with these transitions (Tr. pp. 328, 338-39).  The school psychologist testified that he received no reports of difficulties with the child's transitions in 2004-05 (Tr. p. 457).  The director of special education, who chaired the CSE meetings at which the child's IEPs were developed, testified that the child still exhibited symptoms of anxiety but that he appeared to be less anxious because he was no longer transitioning to general education for core academic courses (Tr. p. 577).

Regarding petitioners’ allegation concerning goals and objectives, I have reviewed the October 18, 2004 IEP and examined both the detailed descriptions of the child's present levels of performance and needs as well as the IEP goals and objectives (Joint Ex. 25).  I find that the goals and objectives accurately reflect the child's needs in all domains.  In addition to the academic goals for reading and math needs described above, the October 18, 2004 IEP identifies the child's articulation deficits and contains a speech-language goal with four objectives to address this need (Joint Ex. 25 at pp. 3, 8).  The October 18 IEP also states that the child needs to improve balance, coordination, strength, motor planning and endurance (Joint Ex. 25 at p. 3) and addresses these needs with a PT goal with three objectives, one each for motor planning, balance and functional strength and endurance, with progress to be measured by standardized tests, all relating to the child's ability to function in the school setting (Joint Ex. 25 at pp. 7-8).  The child is also described on the October 18, 2004 IEP as needing to improve skills in spatial relations, copying and strength (Joint Ex. 25 at p. 3), and the IEP has an OT goal with three objectives which specifically address these three needs (Joint Ex. 25 at p. 7).

I also find that, where appropriate, the child's needs are addressed in more than one goal.  For example, petitioners' son is described on the October 18, 2004 IEP as having difficulty completing assignments, due in part to his difficulty attending to directions and also to his difficulty recalling information discussed in class (Joint Ex. 25 at p. 2).  The IEP addresses this need in several ways.  A classroom goal for work behavior and task orientation includes an objective for task completion and an objective for attending (Joint Ex. 25 at p. 7), and one of the child's speech goals addresses listening to and remembering messages with two details (Joint Ex. 25 at p. 9).  Supporting these goals, the IEP also recommends test accommodations for extended time, repeating directions, simplifying language and test taking in a location with minimal distractions (Joint Ex. 25 at p. 11).  Socially, the child is described on the IEP as needing encouragement in social interactions and needing to make eye contact when interacting with others (Joint Ex. 25 at p. 4).  A counseling goal that addresses this need with objectives for making eye contact and for social scripts (Joint Ex. 25 at p. 6) is supported by a speech goal for maintaining eye contact for two or more exchanges (Joint Ex. 25 at p. 8).

Petitioners also assert that the goals and objectives on the child's 2004-05 IEP are not measurable.  The IEP contains 11 goals and a total of 30 objectives, all of which indicate that progress will be determined by teacher or clinician observation.  The record indicates that these goals and objectives were developed and reviewed by the CSE with petitioners’ involvement and with significant input from the various service providers who were subsequently responsible for their respective goals (Tr. pp. 35-36, 184, 252-53).  The method by which goals and objectives are measured was supported by the testimony of each service provider.  For example, both the PT and the OT goals rely upon measurement of progress with both observations and standardized tests, and the physical therapist testified in some detail regarding how progress towards PT objectives was measured (Joint Ex. 25 at pp. 7-8; Tr. pp. 265, 268).  The speech-language therapist included use of a standardized test to measure progress in articulation (Joint Ex. 25 at p. 8) and provided specific testimony regarding how she documented her clinical observations for all speech-language goals (Tr. p. 129).  The child's guidance counselor's testimony offered explanations of how progress in social skills objectives was determined through observations of the child when he practiced skills in front of the classroom (Tr. pp. 295-97).  The academic goals for reading, math and language specify the number of months' growth anticipated within the 2004-05 school year and corresponding objectives indicate criteria for mastery at 80 percent (Joint Ex. 25 at pp. 6-7).  In testimony, the child's special education teacher described how observations were made to determine progress in academic goals (Tr. pp. 361-62) and provided specific examples of the child's status in his classroom at that time (Tr. pp. 317-19, 333). 

Although the clinicians who testified provided information sufficient to determine that the October 18, 2004 IEP goals and objectives were measurable, I note that the anticipated completion date for all objectives is June 24, 2005.  The CSE is cautioned to develop dates for objectives and benchmarks which will allow for communication of progress throughout the school year so that adjustments can be made to the IEP if the child is not making sufficient progress.  However, I also note that petitioners were provided with quarterly written progress reports, which provide specific and detailed information regarding the child's progress in each objective (Joint Ex. 36).  Petitioners were also provided with daily reports of their son's progress through a communication log, which included entries from various clinicians who provided services pursuant to the child's goals and objectives (see Joint Ex. 34).  Additionally, the child's clinical team met with petitioners once each month to review and discuss progress.  Any concerns petitioners may have had regarding use of the goals and objectives on the IEP to monitor their son's progress could have been raised through any of these methods (Tr. pp. 63, 178-80, 255, 328-29).

The record reveals that, at the July 8, 2004 CSE meeting, petitioners and their advocate indicated their disagreement with the diagnosis of Asperger's disorder offered by the independent evaluator (Joint Ex. 12 at pp. 10-15, 19-22).  A subsequent neurological evaluation indicated that the child did not have Asperger's disorder (Joint Ex. 14 at p. 2).  Given the contradictory diagnoses and the parents' negative reaction to the initial diagnosis of Asperger's disorder, the CSE chose to develop an IEP which reflected the child's academic, social, physical and management needs and which provided a classification which accurately describes those needs and with which petitioners and their advocate were in full agreement at the time the classification was determined.  I note that when the CSE reconvened on October 18, 2004 and reviewed the results of a private neuropsychological obtained by petitioners which concluded that the child did not exhibit "a typical presentation for Asperger's Syndrome" and suggested that some of his reported symptoms could be attributed to an anxiety disorder (Joint Ex. 17 at p. 3), this provided further support for its recommended classification of the child as OHI.  The conclusions of the private neuropsychological evaluation were further supported by reports from the child's special education teacher, who testified that he had experience teaching students with autism and that, during the 2004-05 school year, the child did not exhibit symptoms consistent with a diagnosis or classification of autism (Tr. pp. 384-86). Based upon a thorough review of the record and an analysis of petitioner's procedural and substantive allegations, I concur with the impartial hearing officer that the child's classification of OHI was appropriate, that the 2004-05 IEP was appropriate and that respondent offered the child a FAPE for the 2004-05 school year.

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

 

THE APPEAL IS DISMISSED. 

 

Dated:

Albany, New York

 

__________________________

 

July 11, 2005

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

1 The student’s prior educational history is described in Application of a Child with a Disability, Appeal No. 05-001, decided February 7, 2005, and will not be repeated here in detail. 

1  The student had previously received speech-language services through the Committee on Preschool Special Education (CPSE) and was classified as a student with a speech-language impairment when he entered kindergarten during the 2001-02 school year (Joint Exs. 2, 3).