The State Education Department
State Review Officer

No. 05-058

 

Application of the BOARD OF EDUCATION OF THE MORRIS 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:
Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP, attorney for petitioner, Edward J. Sarzynski, Esq., of counsel

Andrew K. Cuddy, Esq., attorney for respondents

DECISION

            Petitioner, the Board of Education of the Morris Central School District, appeals from the decision of an impartial hearing officer which determined that petitioner failed to offer a free appropriate public education (FAPE) to respondents' son for the 2004-05 school year.  Respondents cross-appeal from that portion of the impartial hearing officer's decision which denied their request for compensatory education.  The appeal must be sustained in part. The cross-appeal must be sustained.

            Before addressing the merits of the case, I must address two procedural issues.  First, respondents object to petitioner’s submission of Exhibit 2 and Exhibit 3, which were annexed to the petition for review.  Respondents contend that those documents were not before the impartial hearing officer, have not been subjected to cross-examination, and should not be relied upon by the State Review Officer.  Exhibit 2 is a March 10, 2005 complaint filed with the State Education Department’s Office of Vocational Education Services for Individuals with Disabilities (VESID) against petitioner relative to the student’s special education programs and services.1  Exhibit 3 is the State Education Department’s May 16, 2005 response to that complaint.

            Generally, documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary to enable the State Review Officer to render a decision (Application of a Child with a Disability, Appeal No. 05-020; Application of a Child with a Disability, Appeal No. 04-092; Application of the Bd. of Educ., Appeal No. 04-068).  While the documents were not available at the time of the hearing, they are not necessary for my review, and therefore, I will not accept them (Application of a Child with a Disability, Appeal No. 04-083).

            The second procedural issue involves service of the petition for review.  Petitioner initially served its petition for review upon respondents' attorney by mail on June 14, 2005.  By letter dated June 15, 2005, respondents' attorney informed petitioner's attorney that he was not authorized to accept service on behalf of respondents and requests that I reject the petition. Here, petitioner properly personally served its petition and memorandum of law upon respondents on June 15, 2005 after receiving the impartial hearing officer’s May 10, 2005 decision by mail.2  Because the petition and memorandum of law were subsequently served upon respondents personally and in a timely manner, I find this cured any initial service irregularity, and, therefore, I will not dismiss the petition.

            Respondents' son was 14 years old at the time of the impartial hearing in March 2005, attending eighth grade in petitioner's public school, and classified by petitioner's Committee on Special Education (CSE) as a student with autism (Dist. Ex. 115 at p. 1; Parent Ex. B at p. 1).  The student has previous medical diagnoses that include: attention deficit hyperactivity disorder (ADHD), general anxiety disorder – post traumatic stress disorder, and pervasive development disorder, not otherwise specified (PDD-NOS) (Parent Ex. E-4 at p. 3; Dist. Ex. 70 at p. 5).  The student's eligibility for special education services as a student with autism (see 8 NYCRR 200.1[zz][1]) is not in dispute.

            A report of a child development consultation, dated July 29, 1997, conducted when the student was 6 years and 7 months old (Dist. Ex. 67 at pp. 5-11) indicated that the student received speech-language services and special education services from 1994 through 1996 (Dist. Ex. 67 at p. 7).  The report further indicated that the student was in a regular education kindergarten class for the 1996-97 school year with a shared aide as needed (id.).  The evaluator noted that the student presented with clear social skill deficits, had a need for routine, exhibited ritualistic behavior, and had a history of delayed language (Dist. Ex. 67 at p. 9).  At the time of this evaluation, the evaluator opined that the student demonstrated characteristics more associated with PDD-NOS and had "too many strengths to make the diagnosis of high functioning [a]utism" (id.).

            Respondents' son began attending petitioner's public school in first grade for the 1997-98 school year (see Dist. Ex. 67 at p. 7).  The student's classification as a student with an emotional disturbance was changed to a student with autism on September 24, 1997 (Dist. Ex. 67 at p. 11).

            A school psychologist evaluated the student in October 2003 through January 2004, when the student was 13 years old, as part of a triennial evaluation.  The school psychologist reported that previous cognitive assessment in January 2001 revealed overall cognitive functioning in the average range with "unevenly developed abilities," verbal functioning in the high average range and performance functioning in the average range.  The psychologist reported that a functional behavioral assessment (FBA) completed in April 2001 indicated that the student had significant impairments in social understanding, a restricted range of interests, visual dependency for social imitation and rule learning consistent with characteristics of a child with PDD: Asperger's syndrome (Dist. Ex. 70 at pp. 3-7; Parent Ex. E-4 at pp. 1-5).

            The school psychologist noted at least 11 evaluation sessions of previous cognitive testing that were conducted by October 2003 (Dist. Ex. 70 at pp. 3-5; Parent Ex. E-4 at pp. 1-3), and in consultation with the student's parents determined that further cognitive testing was not necessary at that time (Dist. Ex. 70 at p. 5; Parent Ex. E-4 at p. 3).  The psychologist observed the student in several different settings, including Mathematics, lunch and gym (Dist. Ex. 70 at p. 5; Parent Ex. E-4 at p. 3).  The student was noted to lose focus and start doodling in Mathematics, and although he was observed sitting with students his age at lunch, he was noted to not have conversations with his peers.  The student, however, was observed to interact with peers and his teacher during gym while engaged in an activity he seemed to enjoy (id.).  Four of the student's teachers were asked to complete a Gilliam Asperger's Disorder Scale form in October and November 2003 (Dist. Ex. 70 p. 6; Parent Ex. E-4 at p. 4).  The math, health, music, and resource room teachers were asked to complete the form based upon their observations in the areas of social interaction, restricted patterns of behaviors, cognitive patterns, and pragmatic skills. The student's teachers indicated that the student had an excellent memory, but sometimes needed specific instruction to begin a task. The student’s math, health, and music teachers were in agreement with ratings that fell within the average range across all areas. In contrast, the resource room teacher indicated significant concerns across all areas (id.).

            An independent consultant conducted classroom observations on October 14, 2003, which resulted in a report dated November 5, 2003 (Dist. Ex. 70 at pp. 16-24; Parent Ex. E-5).  The consultant stated that the student’s family had expressed concerns regarding the transition from elementary school to middle school and inconsistencies in some of his grades compared with past performance (Parent Ex. E-5 at p. 1). The consultant observed the student in several classrooms. Within the science classroom, consisting of 31 students, the student transitioned successfully to his lab station, indistinguishable from his peers in exchanging comments as part of the socialization that took place amid the “reasonable commotion” that occurred while students transitioned from their seats to lab stations. According to the observer, once with his group and after waiting for them to begin, the student took charge, in a positive manner, in organizing his group to which they responded favorably. The group worked collaboratively until the end of class (Parent Ex. E-5 at p. 2). Although his participation in gym class was on the periphery (tossing balls back to classmates shooting baskets) he changed his clothes and made it to class and attended the gym class independently without an aide and without any problems. From gym he made his way independently to Spanish class, where he arrived a few minutes late to a class comprised of a large number of students, and “smoothly’ made his way to a seat near the center of the room. During the class the student was observed to have paid attention, followed verbal directions pertaining to spelling and pronunciation, and was one of a number of students who volunteered to write an answer on the chalkboard. The student’s aide, who was at the Spanish class, was seated at the edge of the classroom and had no interaction with the student (id.).  The consultant concluded that “[t]here are a number of factors at work that are supporting [the student’s] success this year” (Parent Ex. E-5 at p. 2). Those factors included a) positive “inclusion practices;” b) the general education and special education teacher co-teaching model which provided support for differing learning styles and allowed adaptations and supports to help compensate for the student’s weak executive functions and social need areas; and 3) the form of scheduling which put in place co-taught classes balanced with classes in which he had “para support”(id.). Moreover, the consultant noted that in conjunction with resource room services, the arrangement ought to support the student in reinforcing his emerging independence skills, including maintaining his schedule, being punctual, and working along side typical peers in the classroom as he would be expected to work along side typical colleagues in his adult life (id.).

The consultant also indicated that the student needed opportunities for social interactions and social relationships in structured and supervised activities (Dist. Ex. 70 at p. 23; Parent Ex. E-5 at p. 7).  The consultant noted that the student "has benefited from a full-inclusion setting at the Morris school with related services" (Dist. Ex. 70 at p. 17; Parent Ex. E-5 at p. 1), recommended that the student "continue his current program as long as he is being successful" (Dist. Ex. 70 at p. 19; Parent Ex. E-5 at p. 3), and further noted that the "work that the Morris Central School District has done with [the student] demonstrates its commitment to both maintaining high standards and addressing [the student's] individual needs" (Dist. Ex. 70 at p. 24; Parent Ex. E-5 at p. 8).

            A diagnostic and neuropsychological evaluation was conducted on April 14, 2004 and April 15, 2004 (Dist. Ex. 75 at pp. 4-8; Parent Ex. E-1 at pp. 1-5).  The evaluator concluded that the student met the criteria for autism on the Autism Diagnostic Observation Schedule, Module 4, (ADOS).  An ADOS was administered in order to evaluate the presence of observable behaviors often associated with a diagnosis with the autism spectrum (Dist. Ex. 75 at p. 5; Parent Ex. E-1 at p. 2).  The student was observed with a speech pattern described as having characteristics similar to individuals with autism.  The student spoke at a somewhat unusually fast rate, with a high pitch, and while there was no evidence of echolalia, the student used phrases that were somewhat more formal than other children his own age (id.). The student’s tendency to report lists of items or events in conversations was considered as a possible interference with social interactions.  The evaluation report noted that the student had difficulties in modulating his eye contact with his spoken language and gestures and in the quality of his social overtures (id.).  It was also noted that he was able to maintain on task throughout the evaluation testing and that he demonstrated a range of cognitive abilities, including strengths in the areas of vocabulary, ability to understand relationships between verbal concepts, and in reading recognition, as well as weaknesses in complex language processing problem solving and in mathematical operations such as advanced mathematical concepts (Dist. Ex. 75 at p. 8; Parent Ex. E-1 at p. 5).

            A psychological consultation was conducted on June 8, 2004 (Dist. Ex. 76).  The student was observed throughout his day at school and was observed to transition to Spanish class along with his aide (Dist. Ex. 76 at p. 1).  During the class, the student sat throughout a movie clip without distraction, with the aide positioned at the side of the classroom.  Following Spanish class, the student transitioned independently to his Mathematics class and sat towards the back of the classroom along side of his aide (id.).  However, during Mathematics instruction, the student required frequent prompts to focus on the lesson and/or his worksheet (Dist. Ex. 70 at p. 2).  The student's notes were highly inconsistent during Mathematics instruction because the student repetitively engaged in drawings that were very perseverative in nature (id.).

            The CSE met on August 12, 2004, and for the 2004-05 school year, the CSE recommended that the student remain classified as a student with autism and attend eighth grade in a regular education program (Dist. Ex. 81 at p. 4; Dist. Ex. 115 at p. 1), with 42 minutes of resource room five times per week (Dist. Ex. 115 at p. 6; Parent Ex. B at p. 6).  The CSE also recommended that the student receive 42 minutes of individual counseling one time per week, 42 minutes of group counseling one time per week, 42 minutes of group consultant teacher services five times per week, and be provided with a 1:1 student aide for 288 minutes five times per week (id.).  CSE minutes from the August 12, 2004 meeting indicate that there was to be an increased effort to teach the student to interact with peers (Dist. Ex. 81 at p. 2).

            Respondents did not accept the CSE's recommended educational program.  By letter dated December 30, 2004, respondents requested an impartial hearing alleging that: 1) the student was not receiving a FAPE in the least restrictive environment (LRE); 2) the placement did not afford the student appropriate social skills programming; 3) petitioner did not appropriately review the individualized education program (IEP) prior to approval; 4) the CSE failed to review and consider reports and evaluations from the student's doctors; 5) the notice of the Board of Education action was not in compliance with the regulations; 6) the student's IEP did not contain appropriate meaningful and measurable goals and objectives; 7) the student's IEP did not reflect the student's present levels of performance accurately; 8) the CSE was not properly composed; and 9) the student was not properly evaluated (Dist. Ex. 1 at p. 2).  

            The impartial hearing began on March 7, 2005, and testimony was heard over three days, concluding on March 9, 2005.  The impartial hearing officer rendered a decision on May 10, 2005 finding that the student was not receiving a FAPE pursuant to his current IEP (IHO Decision, p. 18).  He found that the student's IEP was procedurally and substantively inadequate citing the following: 1) petitioner did not have an additional parent member participate at the August CSE meeting and there was no evidence in the record that respondents requested in writing that the additional parent member not participate in the August CSE meeting (IHO Decision, pp. 5-7); 2) petitioner made changes to the final IEP after the August CSE meeting, but that this "violation, if standing alone, could be overlooked" (IHO Decision, p. 5); 3) the CSE had sufficient information regarding the student's needs, but that the "CSE should take another hard look" with regard to doing additional evaluations (IHO Decision, p. 9); 4) the student's present levels of performance listed on the student's IEP superficially "appeared adequate," but "upon closer scrutiny they could use improvement" (IHO Decision, p. 10); 5) the student's goals and objectives listed on the student's IEP were not "truly meaningful or measurable" (IHO Decision, p.13); 6) the student's IEP did not list transitional support services by a teacher with a background in teaching student with autism in accordance with 8 NYCRR 200.13(a)(6) (IHO Decision, p. 14); 7) parent counseling and training should have been identified on the student's IEP in accordance with 8 NYCRR 200.13(d) (IHO Decision, p. 16); 8) instructional language services should have been provided to the student on a daily basis in accordance with 8 NYCRR 200.13(a)(4) (IHO Decision, p. 16); and 9) the student was not grouped with students of similar needs and abilities in resource room (IHO Decision, pp. 16-17).  The impartial hearing officer concluded that the student was denied a FAPE under his current IEP, denied respondents' request for compensatory education, and remanded the matter to the CSE to address the student's present levels of performance, add transitional support services and parent counseling to the student's IEP, and otherwise formulate an IEP consistent with his decision (IHO Decision, pp. 18-19).

            On appeal, petitioner alleges that the impartial hearing officer's decision was erroneous and contends that it offered the student a FAPE through the development and implementation of an appropriate IEP.  Petitioner contends that respondents were aware of their rights not to have a parent member attend the CSE meeting and they verbally requested that a parent member not attend the CSE meeting and that the impartial hearing officer erred in finding: 1) that its CSE "should take another hard look" regarding additional evaluations; 2) that "there was little evidence of significant progress"; 3) that the student's present levels of performance in his IEP could use improvement; 4) that the student's IEP did not address the student's need for a peer network and specific social skills training; 5) that the CSE disregarded the central auditory processing evaluation (CAPE); 6) that the goals and objectives were not meaningful or measurable; 7) that the student requires transitional support services and erred in finding that the student encountered transitional problems; 8) that parent training and counseling be provided; 9) that the student must receive instructional language services; 10) that the student was not grouped with students of similar needs and abilities and that the resource room was not in compliance with the Regulations of the Commissioner of Education; and 11) that the impartial hearing officer erred in suggesting that the CSE not compartmentalize the student's abilities or disabilities.  In addition, petitioner alleges that the impartial hearing officer erred in stating that it was a procedural violation to make changes to a final IEP after the August 12, 2004 CSE meeting.

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]).3  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]).

 Petitioner asserts that the August 12, 2004 CSE meeting was properly composed with the requisite members. I disagree. Although not required by the IDEA (34 C.F.R. § 300.344), New York State law requires the presence of an additional parent member on the committee that formulates a student’s IEP (see Bd. of Educ. v. Mills, 2005 WL 1618765 * 5 [E.D.N.Y. July 11, 2005]). New York provides that membership of a CSE shall include an additional parent member of a student with a disability residing in the school district or a neighboring school district, provided that such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting (see N.Y. Educ. § 4402 [b][1][a]; 8 NYCRR 200.3[a][1][viii]). Moreover, any request by the parents of the student that the additional parent member not participate must be in writing (8 NYCRR 200.5[c][2][v]). In the instant case, it is undisputed that no additional parent member was a member of the August 12, 2004 CSE. Despite assertions and denials in the record that the parent verbally waived the presence of the additional parent member (Dist. Ex. 95; Tr. pp. 58, 283-84, 376, 390) the record does not reflect that a written request was made by the parent that the additional parent member not participate in the CSE meeting.  Petitioner therefore conducted a CSE meeting that complied with IDEA team composition requirements but did not comply with New York law.   

Prior decisions by State Review Officers have concluded that the absence of an additional parent member without a valid waiver nullified the IEP (e.g. Application of a Child with a Disability, Appeal No. 02-092; Application of a Child with a Disability, Appeal No. 02-013; Application of a Child with a Disability, Appeal No. 01-096). However, the recent court decision in Mills found there was no indication in that case that the absence of the parent member resulted in a loss of educational opportunity for the student or infringed on the parent’s ability to participate in the CSE meeting (Mills, at 2005 WL 1618765 * 5). The court determined, despite the parent’s denial and a finding by a State Review Officer otherwise (Application of a Child with a Disability, Appeal No. 01-079), that the parent in that case validly waived the additional parent member participation. Following the analysis of the court, which considered whether harm was caused by the absence of the additional parent member, I likewise find that the absence of the additional parent member here, although not validly waived, did not result in a loss of educational opportunity for this student nor infringe on respondents’ ability to participate in the CSE meeting.  Respondents are familiar with the CSE process and knowledgeable about IEP development, and have been actively collaborating with petitioner in developing educational programming for their son. The student's mother is the president of the board of directors of a parent organization (Tr. pp. 438-39) that places the parents of a child with a disability with a trained, supportive parent whose child has a similar disability (Tr. p. 441).  In addition, the student's mother has participated in other CSE meetings as a support parent for other children with autism (Tr. pp. 441-42).  The record reflects active and meaningful parental participation during the August 12, 2004 IEP formulation. I therefore depart from prior State Review Officer decisions regarding the additional parent member that are inconsistent with Mills and this decision. Moreover, I note that this departure is consistent with the development of State Review Officer decisional case law over the past two years that has recognized that procedural violations involving other required members of a CSE are subject to the denial of FAPE standard adopted by the courts (e.g. Application of a Child with a Disability, Appeal No.04-020; Application of Bd. of Educ. Appeal No. 03-062).4 I note further for emphasis that I concur with the impartial hearing officer’s determination that there was a procedural violation of New York law pertaining to committee composition and I caution petitioner that it is required to comply with the CSE membership requirements of New York law.

             Petitioner contends that the impartial hearing officer erred in finding that it was a procedural violation to make changes to a final IEP after the August 12, 2004 CSE meeting, although the impartial hearing officer also found that this violation, "if standing alone, could be overlooked" (IHO Decision, p. 5).  I agree with the impartial hearing officer to the extent that a procedural irregularity did occur; however I find that it not deny the student a FAPE under the circumstances of this case.  By letter dated September 22, 2004, the CSE chairperson indicated that the student's IEP for the 2004-05 school year was enclosed "with revised goals and objectives and the crisis plan" (Dist. Ex. 86).    The record reflects that the goals and objectives were changed after the August CSE meeting at the request of the parents (Tr. p. 191) and were in accordance with the discussions and agreement at the August CSE meeting (Tr. p. 170). Here, the  procedural irregularity did not deny the student educational opportunity or benefit, nor did it impede respondents from meaningfully participating in the development of the student’s IEP (see Application of a Child with a Disability, Appeal No. 01-077; Cf. Application of Bd. of Educ., Appeal No. 05-031 [holding that unilateral deletion of services on IEP by district at request of private school placement and without parental knowledge denied a FAPE]).

            Petitioner contends on appeal that the impartial hearing officer erred in finding that the CSE "should take another hard look" (IHO Decision, p. 9) regarding additional evaluations, without specifying how the existing “45 evaluations” (Tr. p. 17) already completed did not constitute a "hard look."     Petitioner also points to the finding of the   impartial hearing officer that "no one on the CSE (including the parents), suggested that other evaluations or assessments needed to be done" (IHO Decision, p. 9).  I agree with petitioner’s objection to the implication that the IEP was not based upon sufficient evaluative data. Here the record does not suggest nor support a conclusion that at the time the August 12, 2004 IEP was formulated there was inadequate evaluative information.  

  I concur with petitoner’s assertion that the impartial hearing officer’s  determination pertaining to the “improvements” needed in the specificity and measurability of present levels of performance and goals and objectives on the student’s  IEP did not equate to a finding that the student was denied a FAPE.  Moreover, respondent’s were active participants in the development of the IEP, suggested additional language for the goals and objectives, and were provided opportunities, by letters from petitioner dated September 22, 2004 (Dist. Ex. 86) and January 12, 2005 (Dist. Ex. 96) to convene CSE meetings to discuss goals and objectives or the appropriateness of the IEP.  Respondents did not do so. Further, the student's goals and objectives address the student's needs.  For example, the student has an annual goal of using "communication skills to maintain positive interpersonal relationships with peers" and an objective that the student will "carry on friendly conversations with peers during lunch 3 days per week" as measured by clinician's observations one time per day by June 23, 2005 to address the need to improve his ability to apply correct social skills and appropriately interpret social situations (Dist. Ex. 115 at p. 4; Parent Ex. B at p. 4). This accurately reflected the conclusion of the psychological evaluation conducted October 2003 through January 2004 which indicated that the student had difficulty playing with other children and frequently required specific instruction to begin tasks (Dist. Ex. 70 at p. 6; Parent Ex. E-4 at p. 4). 

 Petitioner contends that the impartial hearing officer erred in determining that  parent counseling and training, instructional services to meet individual language needs, and transitional support services should have been provided. I disagree. The Commissioner’s regulations pertaining to educational programs for students with autism provide, in part, that the functioning level of students with autism shall govern their individual or small group instruction and that instructional services shall be provided to meet the individual language needs of a student with autism for a minimum of 30 minutes daily in groups not to exceed  two, or 60 minutes daily in groups not to exceed six (8 NYCRR 200.13 [a][4]). I agree with the hearing officer that the child's IEP fails to provide sufficient instruction to meet his individual language needs and that his pragmatic language deficits significantly impact upon his interaction with peers and adults (Parent Ex. E-1 at p. 2).  Although the student receives language instruction in English and Spanish class (Tr. p. 209) the student’s IEP did not provide for pragmatic language instruction despite the record indicating a need for pragmatic language instruction to be provided to the student (see Parent Ex. 4 at pp. 2,5).  For example, the student's needs in the area of pragmatic language are specified on the IEP  in the "social development" section. Specifically, the CSE has determined that the student has needs in the areas of understanding figurative language (i.e. killing two birds with one stone), applying "correct" social skills, and appropriately interpreting social situations (Dist. Ex. 115). Such services would have been appropriate. The evidence in the record is insufficient to conclude that the recommended program would meet the minimum requirements of the regulation (Application of a Child with a Disability, Appeal No. 03-097).

I also agree with the impartial hearing officer that the IEP does not provide for parent counseling and training for the purpose of enabling respondents to perform appropriate follow-up intervention activities at home as required by 8 NYCRR 200.13(d) (see Application of the Bd. of Educ., Appeal No. 05-031; Application of a Child, Appeal No. 03-097; Application of the Bd. of Educ., Appeal No. 00-016).  Petitioner contends that, "[p]arenting and training were not considered by the [CSE] because the [CSE] members were all familiar with how involved the parents have been in the student's education throughout the years and with their extensive knowledge and experience in working with children with disabilities" (Dist. Memo of Law, p. 11; Tr. p. 47) The student's mother  testified that there was no discussion at the August 14, 2004 CSE meeting regarding parent training and counseling (Tr. pp. 391-92). The record does not indicate that such training was inappropriate for respondents; moreover respondents indicated a need for such training by making a request that they, along with staff, receive training (Tr. p. 392).  Futhermore, consideration and discussion of such services should have taken place at the CSE meeting (see Application of the Bd. of Educ., Appeal No. 05-031).    

The student's mother testified that she requested training for staff with someone that had experience with students with autism and for the parents to be included in that training (Tr. p. 392).  CSE meeting minutes dated January 29, 2004 confirm that the student's mother had previously requested "staff training for specialized training in [a]ustism" because the student was "regressing in his behavior" (Parent Ex. D(1) at p. 3).   I also agree with the impartial hearing officer that the IEP does not show that a special education teacher with a background in teaching students with autism would provide transitional support services as required by 8 NYCRR 200.13(a)(6). There is insufficient indication in the record that such temporary services had previously been provided. There is nothing in the student's IEP indicating that since the student has been placed in resource room with other students with other disabilities (Dist. Exs. 115 at p. 6, 81-A at p. 1) and participates in the regular education environment (Dist. Ex. 115 at p. 6), a special education teacher with a background in teaching students with autism would provide transitional support services to a regular or special education teacher to aid in the provision of appropriate services to a student with a disability transferring to a regular program or to a program or service in a less restrictive environment  in order to assure that the student's special education needs are being met as required by 8 NYCRR 200.13(a)(6) (8 NYCRR 200.1[ddd]; Application of a Child with a Disability, Appeal No. 03-097).   I find such services would have been appropriate. I note that the record reflects that the student was receiving services from an aide (Tr. pp. 93-94) who did not have training in working with students with autism (Tr. pp. 103-04).  Although, as discussed above, the student has met with some success in transitioning to his placement and programming, there remain serious concerns about the anxiety and stress the student experiences pertaining to his special education needs and placement (Tr. pp. 414, 416). I remind respondent of its obligation to comply with the provisions of 8 NYCRR 200.13 regarding educational programs for students with autism.5

As to petitioner’s assertion that the impartial hearing officer erred in determining that the student’s 2004-05 resource room service was inappropriate, given the passage of the 2004-05 school year, I find that the issue is moot. I will instruct the CSE to review the appropriateness of the resource room service carefully when it next convenes to ensure that it complies with the requirements of state regulations.

            I now turn to respondents' cross-appeal.  Respondents challenge the impartial hearing officer's finding that the student was not entitled to compensatory education and request appropriate "corrective services" for the student.  In appropriate circumstances, an award of additional services to students who remain eligible to attend school and have been denied appropriate services is proper, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Application of a Child with a Disability, Appeal No. 05-041; Application of a Child with a Disability, Appeal No. 04-054; Application of the Bd. of Educ., Appeal No. 02-047; Application of a Child with a Disability, Appeal No. 02-042).  Here, the respondents do not indicate what additional compensatory services they seek and certainly, as determined by the impartial hearing officer, there has been no gross violation of the IDEA. I will sustain respondents’ cross-appeal to the extent that I will direct petitioner’s CSE to consider, when it next convenes, what additional services may be appropriate, consistent with the tenor of this decision.

I have considered the parties other contentions, and in light of my determination herein and the passage of the 2004-05 school year, further discussion is not necessary.

        THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

        THE CROSS-APPEAL IS SUSTAINED.

        IT IS ORDERED that the decision of the impartial hearing officer is annulled to the extent that it is inconsistent with this decision, and

        IT IS FURTHER ORDERED that petitioner is to convene a CSE meeting within 30 days from the date of this decision, unless the parties otherwise agree, and prepare an appropriate IEP consistent with the provisions of 8 NYCRR 200.13, as well as all other federal and state requirements; carefully review the appropriateness of the student’s resource room program, if such a program remains appropriate; and consider what additional services may be appropriate and provide such additional services as deemed  appropriate.

            Dated:

 

Albany, New York

 

__________________________

 

August 8, 2005

 

PAUL F. KELLY
STATE REVIEW OFFICER

 

1  The complaint was filed pursuant to the state complaint procedures of the Regulations of the Commissioner of Education (8 NYCRR 200.5[k]).

2  Regulations pertaining to the practice on review of hearings for students with disabilities require personal service (8 NYCRR 279[1][a]; 8 NYCRR 275.8; Application of the Bd. of Educ., Appeal No. 05-002) and service of a petition for review within 35 days from the date of the impartial hearing officer’s decision (8 NYCRR 279.2 [b]). If the decision has been served by mail upon petitioner, as in the instant case, the date of mailing and the four subsequent days thereto shall be excluded in computing the 35-day period (id.).

3  On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEIA], Pub. L. No. 108-446, 118 Stat. 2647). Citations contained in this decision are to the statute as it existed prior to the 2004 amendments. Petitioner(s) initiated this proceeding prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEIA do not apply.

4  While neither dispositive nor applicable in the instant case, I note that  new provisions in the IDEIA 2004 amendments provide that in matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies a) impeded the child's right to a free appropriate public education; b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a free appropriate public education to the parents' child; or c) caused a deprivation of educational benefits (20 U.S.C. § 1415 [f][3][E][ii]).

5  In addition, a review of the August 2001 "Autism Program Quality Indicators" guidance document published by the New York State Education Department may be beneficial.