The State Education Department
State Review Officer
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 Mamaroneck Union Free School District
Mayerson & Associates, attorney for petitioners, Gary S. Mayerson, Esq., of counsel
Shaw & Perelson, LLP, attorney for respondent, David S. Shaw and Lisa S. Rusk, Esqs., of counsel
Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for the cost of supplemental services including applied behavioral analysis (ABA) therapy and individual speech-language therapy provided to their son at home during the 2004-05 school year. The appeal must be dismissed.
Petitioners' son was six years old at the time of the impartial hearing (Tr. p. 1884), attending a self-contained special education kindergarten class at respondent's elementary school, and classified by respondent's Committee on Special Education (CSE) as a child with autism (Dist. Ex. 1 at p. 1). The child has a diagnosis of pervasive developmental disorder, not otherwise specified (PDD-NOS) (Parent Ex. S at p. 1; Tr. p. 1884). The child's eligibility for special education services and classification as a child with autism (see 8 NYCRR 200.1[zz]) are not in dispute.
The child was initially diagnosed with a PDD-NOS at age two (Parent Ex. S at p. 1). An evaluation conducted at age four confirmed this diagnosis and yielded additional diagnoses of an auditory processing disorder, expressive and receptive language disorder, articulation disorder, as well as fine and gross motor delays (Parent Ex. S at pp. 1, 10). As a preschooler, the child received 40 hours of ABA which included 20 hours of 1:1 discrete trial training, and attendance in a mainstream preschool class accompanied by a special education itinerant teacher (SEIT) for 12 1/2 hours per week (Parent Ex. S at p. 1). The child also received speech-language therapy and occupational therapy (OT) (id.).
For the 2003-04 school year the child was referred to respondent's CSE, which classified him as a child with autism and recommended placement in a non-integrated 8:1+2 special class for kindergarten, along with afternoon mainstreaming with a 1:1 aide (Parent Ex. EE at pp. 1, 3). Related services of speech-language therapy and OT were recommended, as well as adaptive physical education (PE) (Parent Ex. EE at p. 1). Petitioners disagreed with the CSE recommendations (Parent Ex. EE at p. 4) and the parties entered into a settlement agreement, which was not made part of the record (Tr. pp. 44-45; Parent Ex. AA at p. 4). However, it appears the child's program for the 2003-04 school year consisted of 30-35 hours per week of at home ABA instruction, 5 hours of ABA supervision per week, speech-language therapy 4 times per week and OT 2 times per week (Dist. Ex. 9 at p. 1). In addition, the child attended a regular education preschool for 10 hours per week (id.) accompanied by a 1:1 support teacher (Dist. Ex. 3 at p. 1).
In January 2004 the CSE met for a supplemental review of the child's program (Parent Ex. DD at pp. 1, 4). According to CSE meeting minutes, petitioners' son was working on prekindergarten academic skills and had reportedly mastered many concepts (Parent Ex. DD at p. 4). In addition, the child had demonstrated progress in initiating, showing interest in peers, and following group instruction in the preschool setting (id.). It was further noted that support staff were "fad[ing] back as appropriate" (id.) The child's speech-language therapist reported that petitioners' son had made significant progress in the spontaneous use and expansion of language and that his play skills had become more reciprocal (id.). It was noted, however, that his verbal output could be related to his level of interest and attention to task (id.). The record also contains a quarterly report dated January 15, 2004, submitted by the child's ABA service providers, which indicated that he was scripting at a high frequency throughout his daily routine (Parent Ex. C at p. 1). Scripting was defined for petitioners' son as his use of perseverative language not on topic with the language that would be occurring in the environment at that time, such as using language from television shows as calming or as an avoidance technique (Tr. p. 408).
The CSE discussed several options related to transitioning the child into respondent's school district, including having members of the committee observe petitioners' son at his preschool and having the child reevaluated by respondent's own staff (Parent Ex. DD at p. 4). A series of evaluations was conducted in spring 2004 and numerous progress reports were also generated during that time. An OT evaluation conducted in April 2004 (Dist. Ex. 5) revealed that the child exhibited below age level fine motor, visual motor integration and sensory processing skills that impacted his performance in the classroom (Dist. Ex. 5 at p. 3; Tr. pp. 1098-99). The therapist noted that the child had developed individual skills but needed adult support to integrate and incorporate them in multi-step tasks (Dist. Ex. 5 at p. 3) for classroom activities (Tr. p. 1101). On May 3, 2004 respondent conducted a speech-language evaluation (Dist. Ex. 4; Tr. pp. 1374-81). Petitioners' son's performance on the Preschool Language Scale, Fourth Edition yielded standard scores of 59 in auditory comprehension and 51 in expressive communication, for a total language score of 50, placing him in the first percentile in all areas (Dist. Ex. 4 at p. 1). On the Peabody Picture Vocabulary Test-III B, the child's standard score of 85 placed him in the 16th percentile (Dist. Ex. 4 at p. 1). He was able to follow simple familiar one- and two-step directions with minimal cueing and demonstrated an understanding of most basic linguistic concepts (Dist. Ex. 4 at p. 2). In addition, he could communicate spontaneously and use three to five word utterances to express varied content including identifying actions, location, possession and negation (id.). The therapist noted that the child exhibited stereotypic and echolalic responses and that verbal output was restricted to his interest level and attention to tasks (id.). She reported that the child's play skills were restrictive and repetitive and required expansion and redirection (id.).
In May and June 2004 petitioners' son was reevaluated by the McCarton Center for Developmental Pediatrics (McCarton Center) (Dist. Ex. 9). Administration of the Stanford-Binet Intelligence Scales, Fifth Edition yielded a nonverbal IQ score of 77, a verbal IQ score of 62 and a full scale IQ score of 68, which is in the very low range of functioning (Dist. Ex. 9 at pp. 7, 15). He received similar scores on the Wechsler Preschool and Primary Scale of Intelligence-Third Edition (WPPSI-III) (Dist. Ex. 9 at pp. 7, 14). Petitioners' son's pediatrician noted that on both measures the child's nonverbal scores were significantly higher than his overall verbal scores (Dist. Ex. 9 at pp. 2, 6) and that the child was better able to express his cognitive skills through nonverbal than verbal means (Dist. Ex. 9 at p. 7). In the verbal domain the child had difficulty in the areas of verbal formulation and expression, comprehension, reasoning and short-term auditory memory (Dist. Ex. 9 at p. 2). In the nonverbal domain the child had difficulty solving picture matrices that required inferential problem solving skills (Dist. Ex. 9 at p. 2). The pediatrician reported that the child's academic skills were age appropriate in reading, spelling and arithmetic but that his graphomotor skills were delayed (Dist. Ex. 9 at pp. 3, 11). The pediatrician also noted that one of the child's greatest challenges was auditory processing, which made it difficult for him to perform certain evaluative tests because he could not understand/process the directions (Dist. Ex. 9 at p. 2). The evaluating psychologist reported that petitioners' son's language was primarily based on past learning and was not particularly spontaneous or flexible (Dist. Ex. 9 at p. 6). As the child's comprehension of language decreased, he lapsed into repeating scripts from familiar tapes (id.). The psychologist noted that it was difficult for the child to engage in a reciprocal conversation (id.). She indicated that visual cues increased the child's understanding of verbal task demands (Dist. Ex. 9 at p. 8). The child's score of 35 on the Childhood Autism Rating Scale indicated that he met the criteria on this scale for an autism spectrum disorder (Dist. Ex. 9 at p. 12). Among other things, the evaluators at the McCarton Center recommended that the child receive ABA (1:1 discrete trial) therapy at least 25 hours per week at home, an additional 2 hours per week of parent training with an ABA therapist, a minimum of 3 hours per week of ABA supervision, and enrollment in a structured, language-based special education kindergarten class with a behaviorally trained aide and low student to teacher ratio (Dist. Ex. 9 at p. 3). Individual speech-language therapy five times per week and individual OT five times per week were also recommended (id.).
An educational evaluation of the child was also conducted in May 2004 by respondent's behavior consultant (Dist. Ex. 3). According to the consultant the child had acquired skills generally in the 3 1/2 to 4 year range across all domains of development (Dist. Ex. 3 at p. 5). The child's visual/reading skills were deemed an area of strength and the evaluator noted that the child could read dozens of words, using both sight-reading and decoding (Dist. Ex. 3 at p. 2). The consultant noted that the child demonstrated delays in auditory processing and if there were auditory or internal distractions the child needed directions repeated or gestural prompts to accompany the direction (id.). She observed the child singing or repeating statements from movies and books in a low volume (Dist. Ex. 3 at p. 3). The child's expressive language was limited to greetings, answering what/where questions, requesting, some commenting, and scripting (Dist. Ex. 3 at p. 4). The child did not use social language to initiate play, ask for clarification, gather information, or negate (id.). The child would imitate parallel play with a peer if prompted and swap a toy with another if the peer initiated the exchange (Dist. Ex. 3 at p. 5). The consultant recommended placement in a small structured special education class with children of similar needs (Dist. Ex. 3 at p. 5). She noted that the child did not require the intensive instructional services typically provided to the autistic population (id.).
Respondent conducted additional testing in June 2004, resulting in some duplication of administered tests (Dist. Ex. 2). In addition to formalized testing, respondent's psychological evaluation included an observation of the child in his preschool classroom (Dist. Ex. 2 at p. 1). The evaluator, who had observed the child on a previous occasion, reported that the child's ability to interact and to be engaged had improved (Dist. Ex. 2 at p. 2). The evaluator reported that the child's cognitive potential was not known. Petitioners' son could focus on most concrete manipulative tasks but his use of verbal reasoning was minimal (Dist. Ex. 2 at p. 4). The evaluator noted that the child could attend to tasks, but often required a "good deal" of external direction to attend to his tasks (id.). Based on the child's performance on the Kaufman Survey of Early Academic and Language Skills (K-SEALS) the evaluator reported that the child appeared to have learned a "great deal" of pre-academic information (id.). The child exhibited average number knowledge for his age and his letter and word recognition skills were in the high average range (id.). The evaluator concluded that the child required help with social skills, attention to tasks, independent goal-directed activity and language pragmatics and suggested that he would benefit from a small group kindergarten placement (Dist. Ex. 2 at p. 5).
A language therapy summary was completed in June 2004 by the child's private speech-language therapist (Dist. Ex. 8). According to the therapist, petitioners' son made gains in all core deficit areas, including his ability to sustain play interactions (Dist. Ex. 8 at p. 2). The therapist reported that the child was using 3-6 word utterances to encode more varied content (id.). The therapist also reported that use of a work schedule, token reinforcement and response cost system resulted in significant decreases in the child's restrictive and repetitive behaviors, which had included the use of stereotypic and echolalic language (Dist. Ex. 8 at p. 1). Among other things, the therapist recommended: placement in a special education kindergarten class that targeted social, communication, play, cognitive and academic domains; emphasis on engagement and social interaction as intervention priorities; and the use of visual supports and mini-schedules to assist the child (Dist. Ex. 8 at p. 2).
Respondent's CSE convened for petitioners' son's annual review on June 11, 2004 and recommended that the child be classified as a student with autism and placed in a 12:1+2 special class (Parent Ex. AA at p. 1). In addition, the committee recommended the following related services: 30 minutes of group speech therapy three times a week, 30 minutes of individual speech therapy once a week, and 30 minutes of individual OT twice a week (Parent Ex. AA at p. 1). The IEP also provided for access to a slant board and adaptive seating (Parent Ex. AA at p. 2). Program modifications included the implementation of a positive reinforcement plan throughout the day, which included the use of reinforcers to elicit appropriate responses and behaviors (Parent Ex. AA at pp. 1-2). The child was recommended for adaptive physical education (Parent Ex. AA at p. 1). The IEP noted that the speech and occupational therapists would provide weekly consultation in the classroom as part of the child's program (Parent Ex. AA at p. 4). The recommended IEP contained goals and objectives related to speech-language skills, social/emotional/behavioral skills, motor skills, and basic cognitive/daily living skills (Parent Ex. AA  at pp. 4-6). Witnesses disagreed regarding the extent to which goals and objectives were developed or discussed at the June CSE meeting (Tr. pp. 260-61, 267-69, 432, 1162-63, 1359-60, 1391-32, 1613-15, 1826, 1909-10).
The CSE reconvened on July 16, 2004 at the request of the child's parents (Dist. Ex. 1 at p. 4). The stated purpose of the meeting was to review an outside evaluation (see Dist. Ex. 9), along with updated information regarding other programs and the new teacher (Dist. Ex. 1 at p. 4; see also Tr. p. 235). Minutes from the July 16, 2004 CSE meeting indicated that the parents expressed concern regarding their son's transition from a 1:1 instructional program to a full-day school program (Dist. Ex. 1 at p. 4). According to the minutes, petitioners requested the assignment of a 1:1 full-time aide for their son (Dist. Ex. 1 at p. 4). They also requested that the child be provided an extended day of service after school and that the child's home therapist be allowed to accompany him to school for part of the day (Dist. Ex. 1 at p. 4). In response, the CSE recommended that the child receive 10 hours a week of discrete trial instruction in a 1:1 setting (Dist. Ex. 1 at pp. 1, 4). In addition, the committee recommended that respondent's consultant observe the child and meet with his providers during the summer, and that a team meeting take place during the first week of school (Dist. Ex. 1 at p. 4). The committee's recommendation for the 2004-05 school year was as follows: placement in a 12:1+2 special class during which time the child would be provided 10 hours a week of individual discrete trial instruction, related services which included individual OT two times per week, individual speech-language therapy one time per week, group speech-language therapy three times per week and parent training one time per month in a group (Dist. Ex. 1 at p. 1; Tr. pp. 48-50). Assistive technology services and devices, and program modifications remained the same as recommended in the June 2004 IEP (Dist. Ex. 1 at p. 2). However, the July IEP was modified to reflect the addition of the following service/support for school personnel: monthly team meetings and behavioral intervention consultations five times during the school year (Dist. Ex. 1 at p. 2). The July 16, 2004 IEP also called for bi-monthly meetings between respondent's consultant and outside providers (Dist. Ex. 1 at p. 4). According to the July IEP, staff from respondent's behavior consultant's agency would write the child's programs and train and supervise a classroom staff member to provide the child's 1:1 instruction (Dist. Ex. 1 at p. 1). The CSE determined that an additional staff member would be assigned to the student's classroom for two hours per day (Tr. p. 335). Daily language instruction was to be delivered through a combination of speech-language therapy and discrete trial instruction (Dist. Ex. 1 at p. 1). During the summer of 2004 the child attended a special education camp where he received ABA instruction, OT and speech therapy (Tr. p. 1888).
Petitioners did not accept the CSE's recommended educational program. By letter dated August 25, 2004, petitioners notified respondent that it had not offered their son an educational program and placement for the 2004-05 school year and that they would be providing him with an appropriate placement and would "seek to hold the [d]istrict financially responsible" (Dist. Ex. 12; see Tr. pp. 103-04, 1935). A second letter from petitioners, dated September 2, 2004, indicated that in an effort to transition the child into respondent's full-day class the child would leave respondent's school early on Wednesdays and Fridays (Dist. Ex. 17). Petitioners noted that the child's progress would determine when he would attend respondent's recommended class on a full-time basis (id.). In response, the director of special education indicated that respondent would not be responsible for making up related services sessions missed due to the child's early removal from the class (Dist. Ex. 18). On September 22, 2004 the parents sent the special education director a letter indicating that they had reviewed their son's IEP and were accepting it on a "without prejudice basis" (Dist. Ex. 13).
By letter dated November 1, 2004, petitioners reiterated that they accepted the program recommended by the CSE at the June 11, 2004 and July 16, 2004 CSE meetings on a "without prejudice basis" (see Dist. Ex. 13), including the child's placement in a 12:1+2 special class, 10 hours of discrete trial instruction, transportation, and related services supplied at respondent's school (Joint Ex. 1 at p. 1). Although petitioners contended they were not contesting these components to be supplied at respondent's school, petitioners requested an impartial hearing alleging that respondent: 1) failed to provide "extended day ABA instruction and support" for the child; 2) failed to consider the full continuum of services available for petitioners' son; 3) failed to adequately address the child's present levels of performance; 4) failed to develop appropriate and measurable goals and objectives; 5) failed to develop specific supports for school personnel; 6) failed to provide staff with appropriate and necessary training; 7) failed to issue frequent progress reports; 8) failed to give written notice to explain reason for rejecting parental requests; and 9) failed to provide sufficient and appropriate "related service levels" (Joint Ex. 1 at p. 2). Petitioners sought reimbursement for supplemental program components including an additional 25 hours of individual home-based ABA per week, 10 hours of ABA supervision and consultation for the ABA home program per week, 2 hours of parent training per week, team meetings, on-going staff training, and 5 hours of individual speech-language therapy per week (Joint Ex. 1 at pp. 2-3). In addition, petitioners alleged that their son was not receiving the ten hours per week of discrete trial instruction as indicated on the child's IEP and requested "compensatory" hours for those services not provided (id.).
Following petitioners' request for an impartial hearing, respondent attempted to schedule a CSE meeting for December 10, 2004 (Dist. Ex. 15); however, this date was not convenient for petitioners (Dist. Ex. 16). A subsequent CSE meeting was scheduled for January 2005 (Tr. p. 121). The CSE met on January 7, 2005 for a supplemental review of the child's program (Parent Ex. A). According to meeting notes written by the CSE chairperson, petitioners felt their son was happy (Parent Ex. A at p. 2). Petitioners reportedly found it hard to say what progress their son was making at school to carry over at home because the structure and program at home were so different (id.). The CSE chairperson's notes indicated that the child's goals and objectives were reviewed and changes were made (Parent Ex. A at p. 2; Tr. pp. 1115-16), and the provision of individual parent training sessions was reportedly formalized (Tr. pp. 51, 175). In addition, respondent agreed to conduct a functional behavioral assessment (FBA) (Parent Ex. A. at p. 3; Tr. pp. 130, 153-54). The child's 1:1 discrete trial instruction was discontinued at the January 7, 2005 CSE meeting (Tr. pp. 418-19, 2054) and replaced with small group instruction in which data collection would continue (Tr. pp. 418-19, 707-08).
The impartial hearing commenced on January 18, 2005 and concluded on May 24, 2005 after ten days of testimony. On June 26, 2005, the impartial hearing officer rendered her decision finding that respondent had met its burden of proving that it offered to provide a free appropriate public education (FAPE) to the child during the 2004-05 school year (IHO Decision, p. 41). More specifically, the impartial hearing officer found that: 1) although the record did not indicate that respondent provided written notice with an explanation for rejecting petitioners' request (see 20 U.S.C. § 1415[c]; 34 C.F.R. § 300.503[b]; 8 NYCRR 200.5[a]) for extended day services, this procedural flaw did not constitute a denial of a FAPE (IHO Decision, p. 15); 2) petitioners' contention that respondent impermissibly predetermined the child's program, and thereby deprived petitioners' meaningful participation in the IEP process , lacked merit in that the record did not suggest an unofficial policy of refusing to provide 1:1 ABA programs or that school personnel did not have open minds and were not willing to consider or discuss providing ABA programs (IHO Decision, pp. 15-19) and the record does not support petitioners' contention that respondent focused on and recommended a placement before developing the child's goals and objectives (IHO Decision, p. 22); 3) respondent conducted appropriate evaluations for the child, which were accurately reflected in the child's IEP (IHO Decision, p. 14); 4) the child's IEP was developed specifically to meet petitioners' son's needs (IHO Decision, p. 19); 5) the record "overwhelmingly supports the conclusion that the [child's] goals and objectives were based on an accurate measurement of [the child's] needs and present levels of performance…[and] were generally consistent with the child's level of functioning" (IHO Decision, p. 25); 6) the child's goals and objectives provided measurable short-term objectives or benchmarks to enable the child's parents and educators to monitor the child's progress during the year (IHO Decision, p. 27); 7) the child's biting/mouthing incidents and the child's behavior of "scripting" did not impede the child's learning, and therefore an FBA was not an essential element of the child's program (IHO Decision, pp. 29-30); 8) the CSE added ten hours of discrete trial instruction per week to assist petitioners' son with transitioning from his home program to respondent's school program and staff from the Holistic Training Center were hired to train and supervise classroom staff members who would provide the 1:1 instruction (IHO Decision, p. 31); 9) the CSE provided a "transition program [that] effectively addressed [the child's] individual needs (IHO Decision, p. 35); and 10) the CSE recommended services in a special class was an appropriate program in the least restrictive environment (LRE) (IHO Decision, p. 38). The impartial hearing officer denied petitioners' request to be reimbursed for the cost of a supplemental program including ABA therapy and individual speech-language therapy components provided to their son at home during the 2004-05 school year.
On appeal, petitioners request reversal of the impartial hearing officer's decision, a reimbursement award for the supplemental program components and seek to be declared the "substantially prevailing party". Petitioners' central contentions to this appeal are that the child's program for the 2004-05 school year was both procedurally and substantively inadequate, that petitioners' selection of supplemental services for which reimbursement was sought was appropriate, and that there were "no compelling" equitable considerations sufficient to preclude or diminish petitioners' reimbursement claim. Petitioners also allege that: 1) the impartial hearing officer impermissibly shifted the burden to petitioners to prove that the child was not receiving a FAPE; 2) the impartial hearing officer improperly gave respondent the "benefit of the doubt" in instances where respondent had failed to establish that the child was offered a FAPE or failed to rebut petitioners' FAPE challenges; 3) the impartial hearing officer "glossed over, if not ignored, compelling evidence" that respondent predetermined the child's program, thereby, depriving petitioners meaningful participation in the IEP process as equal members of the IEP team; 4) respondent's behavior consultant improperly "backdated" important documentation relating to the child's "interfering behaviors" and his need for an FBA, behavioral intervention plan (BIP), and an effective transition plan at the beginning of the 2004-05 school year; 5) respondent failed to provide appropriate transitional support as had been sought and recommended during the child's summer 2004 IEP; 6) respondent "retaliated" against the child and his parents "for having the audacity to initiate due process [proceedings] to vindicate [the child's] statutory entitlements;” 7) respondent's "challenged" IEP was untimely provided to the child and his family after the start of the 2004-05 school year; 8) respondent addressed program and placement issues for the child "before developing and finalizing [the child's] goals and objectives; 9) respondent failed to properly assess and evaluate the child's present levels of performance in connection with the child's "scripting" and "other inappropriate behaviors;" and 10) the impartial hearing officer failed to "appreciate the import" of respondent's failure to give the child "prior written notice" (Pet. ¶ 20).
The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1487)1 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]).2 A board of education may be required to reimburse parents for their expenditures for private special educational services obtained for a student by his or her parent, if the services offered by the board of education were 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, 370 ; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ). In Burlington, the court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (see Burlington, at 370). “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper [individualized education program]” (id. at 370-71).
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 ). 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 ; 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 child, 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 child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 ). 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 child'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]; Briere 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 child 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 F.3d 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 child's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]).
An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the child'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 child's present levels of educational performance, including a description of how the child's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a]; see also 8 NYCRR 200.4[d][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 child'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 child's needs arising from his or her disability to enable the child to be involved in and progress in the general curriculum, and meeting the child's other educational needs arising from the disability (34 C.F.R. § 300.347[a]; see 8 NYCRR 200.4[d][iii]). In addition, an IEP must describe how the child's progress towards the annual goals will be measured and how the child's parents will be regularly informed of such progress (34 C.F.R. § 300.347[a]; 8 NYCRR 200.4[d][x]).
Petitioners contend that respondent "predetermined" their son's program for the 2004-05 school year, which precluded both the individualization of the student's IEP and consideration of the full continuum of services or placements, and deprived petitioners of meaningful participation in the IEP process. Specifically petitioners allege that the student's "placement" or "program" was recommended prior to the development of the student's goals and objectives, that respondent's personnel entered the CSE meeting with a preconceived plan for the student's services, placement, and program and that based on unofficial policy, respondent failed to consider the full continuum of services or placement as it related to extended day services and parent training.
I agree with the impartial hearing officer's finding that the record fails to support petitioners' claims as they relate to predetermination. The record reflects that at the June 11, 2004 CSE meeting there was discussion of goals and objectives as well as program and placement, and that placement appears to have been the focus of the meeting (Tr. pp. 260, 1614). However, the record is not clear as to whether the student's placement was discussed prior to the development of goals and objectives (Tr. pp. 81, 1242, 1614, 1898). According to testimony, discussion related to the student's placement and program centered on whether there would be an appropriate in-district placement for the student (Tr. pp. 1241-42) and what the then "theoretical" program would look like (Tr. p. 1903). While both a program and placement were recommended at the June 11, 2004 CSE meeting (Parent Ex. AA), the student's program and services were later modified at the July 16, 2004 CSE meeting in response to petitioners' concerns regarding the student's ability to transition (Dist. Ex. 1). Thus, I cannot conclude that the student's placement and program were finalized prior to the development of goals and objectives. As to petitioners' claim that their son's recommended program was preconceived, the record reveals that prior to the July 16, 2004 CSE meeting the CSE chairperson, director of special education, and respondent's behavior consultant had conversations regarding the child's program (Tr. pp. 251, 390, 449-50, 1231) and the consultant's availability for the coming school year (Tr. pp. 252-53). The CSE chairperson testified that respondent "didn't come up with a plan before the meeting" (Tr. p. 251). She noted that the behavioral consultant, who was not at the July CSE meeting, gave input as to possible recommendations but indicated "she was willing to work with whatever the committee decided was appropriate" (id.). Respondent's behavior consultant testified that she told the CSE chairperson the services she would recommend if she were at the meeting, but noted that the CSE chairperson did not agree to her recommendations (Tr. pp. 449-50). She further testified that her recommendation was based on discussions with the child's mother and home service provider and what she thought would be necessary to promote a learning curve in school (Tr. p. 451). Petitioners suggest that a document created by respondent's behavior consultant on the morning of July 16, 2004, prior to the student's CSE meeting, confirms that the student's program was predetermined (Parent Ex. BB). The consultant testified that she wrote the top half of the document following a review of the child's independent evaluation in an effort to determine "what a kid could get accomplished" within a school day (Tr. pp. 521, 537) and how many hours of one-to one instructional time are available to a student (Tr. p. 523). I concur with the impartial hearing officer in her finding that while the consultant may have shared her thoughts with committee members prior to the July CSE meeting that this type of communication does not demonstrate that respondent engaged in the impermissible predetermination of the child's program (IHO Decision, p. 17).
I am also not persuaded by petitioners' claim that respondent failed to adequately consider extended day services and parent training. Respondent's witnesses credibly testified that extended day services were not necessary for the student to receive a FAPE because he was provided an appropriate program during the school day (Tr. pp. 216, 415-16). Regarding parent training, the record reflects that parent training was a listed service on the IEP and was offered, that petitioners were very knowledgeable regarding their son's disability and techniques that could be employed at home (Tr. p 464) and had consulted with national experts regarding their son and received extensive parent training in prior years (Tr. p. 709). Based on this information, the committee concluded that petitioners' training needs could be adequately met (Tr. pp. 464, 709).
Petitioners also allege that the child's IEP was provided to the child and his family after the start of the 2004-05 school year and was, therefore, untimely. An appropriate IEP must be in effect at the beginning of each school year (see 20 U.S.C. § 1414[d][A]; 34 C.F.R. § 300.342[a]; see also Application of the Bd. of Educ., Appeal No. 05-030; Application of a Child with a Disability, Appeal No. 02-015). Respondent's board of education approved the July 13, 2004 IEP on August 31, 2004. The IEP was mailed to petitioners on September 1, 2004, and the 2004-05 school year began September 8, 2004 (Tr. pp. 255, 256, 1232-33). Petitioners assert that they did not receive the child's IEP until after the school year had started, however, they fail to state a date on which the IEP was received (Tr. p. 1908). The impartial hearing officer found that although it would have been preferable to deliver the IEP to the parents in a more timely manner, petitioners were present at the CSE meetings, draft copies of the IEP were available to them and the CSE had recommended a program that was in effect at the beginning of the school year. I see no reason to disturb this finding.
Petitioners further contend that their son's IEP was procedurally flawed because respondent failed to give written notice of the reasons for the CSE's rejection of petitioners' requests. At the July 16, 2004 CSE meeting, petitioners requested the assignment of a 1:1 full-time aide for their son (Dist. Ex. 1 at p. 4). They also requested that their son be provided an extended day of service after school and that their son's home therapist be allowed to accompany him to school for part of the school day (id.). Petitioners' requests were verbally rejected at the July 16, 2004 CSE meeting (Tr. pp. 1907-08, 1979). It is undisputed that petitioners requested extended day services (see Dist. Ex. 1 at p. 4; see also Tr. pp. 1906-08), and that the record does not indicate that respondent provided written notice rejecting petitioners' request with an explanation (see 20 U.S.C. § 1415[b], [c]; 34 C.F.R. § 300.503[b]; 8 NYCRR 200.5[a][ii]).
It is well established that the existence of a procedural flaw in the formulation of a child's IEP does not automatically require a finding of a denial of a FAPE (Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-015; see also Grim, 346 F.3d at 381; Pawlet Sch. Dist., 224 F.3d at 69; Evans, 930 F. Supp. at 93-94; Pascarella, 153 F.Supp.2d at 153; Briere, 948 F.Supp. at 1255; Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158. Rather, a denial of a FAPE occurs only if the procedural violation results in a loss of educational opportunity for the child, or seriously infringes upon petitioners' opportunity to participate in the process of formulating the IEP, or compromises the development of an appropriate IEP in a way that deprives the child of educational benefits under that IEP. I concur with the impartial hearing officer's finding that respondent's "apparent" failure to provide written notice of its rationale for not agreeing to petitioners' requests did not result in a denial of a FAPE. It did not result in a loss of educational opportunity for the child, seriously infringe upon petitioners' opportunity to participate in the process of formulating the IEP, or compromise the development of an appropriate IEP in a way that deprived the child of educational benefits under that IEP. Petitioners contend that their son's educational program was substantively inadequate. Petitioners accepted the CSE's recommended 2004-05 IEPs formulated at the June 11, 2004 and July 16, 2004 CSE meetings on a "without prejudice basis" (Dist. Ex. 13, Joint Ex. 1 at p. 1). In addition, in their November 1, 2004 request for an impartial hearing, petitioners indicated that they were not contesting the recommended 12:1+2 special class, the ten hours of discrete trial instruction or the related services to the extent that the services were actually being provided (Joint Ex. 1 at p. 1). Instead, petitioners assert that the recommended services were insufficient to provide their son with a FAPE. Petitioners' primary claims centered on their assertions as to respondent's failure to develop a meaningful transition plan and respondent's failure to recommend or offer the development of an FBA and/or BIP. A thorough review of the record does not support petitioners' claims. The record reveals that the July 16, 2004 IEP developed for petitioners' son was reasonably calculated to enable him to receive educational benefit.
Respondent's CSE met on June 26, 2003 following the initial referral of petitioner's son (Parent Ex. EE). As early as January 2004 the CSE began to plan for the child's annual review (Parent Ex. DD). At a supplemental CSE review meeting held on January 22, 2004 the CSE discussed several options for transitioning the child from his home-based program into the school district (Parent Ex. DD at p. 4). Among the issues discussed were the need for respondent's staff to observe the child at his preschool and a suggestion that annual review testing include reevaluations by respondent's staff in order to make recommendations for the child for the 2004-05 school year (id.). Respondent's CSE convened for petitioners' son's annual review for the 2004-05 school year on June 11, 2004 (Parent Ex. AA at p. 1). Respondent's CSE reconvened at petitioner's request on July 16, 2004 (see Dist. Ex. 1). Prior to reconvening for the July 16, 2004 CSE meeting, respondent performed numerous evaluations including an educational evaluation conducted by respondent's behavior consultant (Dist. Ex. 3), a psycho-educational evaluation including an observation of the child in his preschool classroom (Dist. Ex. 2), a speech language evaluation (Dist. Ex. 4), and an OT evaluation (Dist. Ex. 5). In addition to respondent's testing, the CSE considered progress reports from the child's home providers (Tr. p. 56) and a private developmental evaluation report (Dist. Ex. 1 at p. 4; Tr. p. 64).
Petitioners allege that respondent failed to properly assess their son's present level of performance (Joint Ex. 1 at p. 2), specifically as it relates to scripting and other inappropriate behaviors. State regulations require that an FBA be performed as part of an initial evaluation of a child suspected of having a disability if the child's behavior impedes his or her learning or that of others (8 NYCRR 200.4[b][v]). In addition, in all subsequent annual IEP reviews, the IDEA as well as state and federal regulations mandate that the CSE "shall…in the case of a child whose behavior impedes his or her learning or that of others, consider, when appropriate, strategies, including positive behavioral interventions, and supports to address that behavior" (20 U.S.C. 1414[d][B][i]; 34 C.F.R. § 300.346[a][i]; see 8 NYCRR 200.4[d][i]). The official commentary to the federal regulations specifies that "a failure to, if appropriate, consider and address these behaviors in developing and implementing the child's IEP would constitute a denial of FAPE to the child" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 38).
Where behavior impedes a child's learning, the CSE must properly assess that behavior as an initial step in developing an appropriate IEP (Application of the Bd. of Educ., Appeal No. 05-031; Application of a Child with a Disability, Appeal No. 03-057; Application of a Child with a Disability, Appeal No. 02-032; Application of a Child with a Disability, Appeal No. 01-094; Application of the Bd. of Educ., Appeal No. 01-060). Petitioners allege that respondent should have conducted an FBA to assess their son's scripting and biting behaviors. At the time of the June and July 2004 CSE meetings, however, respondent was not aware of the child's biting behavior, only that petitioners and their provider were concerned that without an appropriate transition plan the child would not maintain his skill levels and would demonstrate inappropriate behaviors (Tr. pp. 1623-24, 1754). In fact, petitioners' own behavior specialist reported that although a BIP designed to address aggressive behavior, including biting, had been developed in July 2003 (Parent Ex. Q), the plan was not in place in June 2004, because the behavior wasn't occurring at that time (Tr. pp. 1748-49). Also in June 2004, the child's private speech-language therapist reported that the use of a work schedule, token reinforcement and response cost system resulted in significant decreases in the child's restrictive and repetitive behaviors, which included the use of stereotypic and echolalic language (Dist. Ex. 8 at p. 1, see also Parent Ex. E). The child's July 16, 2004 IEP included an objective targeting the elimination of atypical behaviors, including scripting (Dist. Ex. 1 at p. 6).
Petitioners' behavior specialist testified that while the child had demonstrated inappropriate behaviors in response to past transitions it would be very difficult to anticipate which inappropriate behaviors, including biting and scripting, the child would exhibit in the new setting (Tr. pp. 1623-24, 1769-70, 1834, 1836). While petitioners' son was not exhibiting biting or significant scripting behaviors at the time the IEP was developed, he exhibited these behaviors after beginning the 2004-05 school year (Parent Exs. FF, GG; see also Tr. p. 407). Petitioners contend that the emergence/increase of these behaviors was due to respondent's failure to provide the child with an appropriate transition plan. It appears that the child was neither biting nor scripting on a frequent basis at the time the CSE met on July 16, 2004 to develop the child's program. On September 15, 2004 the child attempted to bite another child and several more attempts at biting followed (Parent Exs. FF at p. 2, GG at p. 2; Tr. pp. 102). Witnesses testified that the child had attempted to bite during previous transition periods, but this information had not been shared with respondent's staff (Tr. pp. 102, 405-06, 682, 1772, 1834-1838, 1839-41, 2057; Parent Ex. Q). By letter dated October 6, 2004, the director of special education sent petitioners a letter indicating that, as agreed to by each party's attorney, respondent was requesting consent for the Holistic Learning Center to conduct an FBA of the child (Dist. Ex. 19 at p. 1). Petitioners responded in writing on October 12, 2004 providing permission for respondent's behavioral consultant to conduct an FBA as it related to mouthing and biting (Parent Ex. II). In addition, petitioners requested that their behavior specialist also conduct an FBA of the child so that she could confer with respondent's consultant (id.). Following the receipt of petitioners' letter, the director of special education called the child's parent and explained that respondent would contract with its own consultant to conduct the FBA (Tr. p. 844). The child's mother reportedly said she would think about it and get back to respondent (id.). According to respondent's administrator the child's parent did not respond “in any short amount of time” (Tr. p. 844). The last recorded biting attempt occurred on October 15, 2004 (Tr. p. 2061).
In addition, petitioners' behavior specialist reported that the child's scripting behavior increased during the month of September 2004 (Tr. p. 1856). Petitioners requested that a response-cost system that had been successful in the home environment be implemented at school (Tr. pp. 407-08, 445-46, 619, 918, 1049-50, 1999; Parent Ex. I at p. 5). Respondent's staff reported that the plan was employed from November 16, 2004 through January 18, 2005 (Tr. pp. 918, 1035) and that the child's scripting behavior decreased (Tr. pp. 591, 597, 599, 919-20). Testimony and evidence from the child's behavior specialist confirmed this decrease in behavior (Tr. pp. 1770-71, 1810-12, 1856-57; Parent Ex. E at p. 11). Based on the above, I find respondent adequately assessed the child's present levels of performance and was not required to conduct an FBA as part of the child's annual review. The July 16, 2004 IEP reflected the abilities and needs of the child as outlined in the numerous evaluations and progress reports considered by the CSE, and reported by his then current providers (Dist. Ex. 1 at pp. 2-4). The goals and objectives targeted the child's deficits in speech and language, social skills and socially appropriate behavior, fine motor and visual motor skills, handwriting, sensory processing skills, and understanding basic concepts (Dist. Ex. 1 at pp. 5-7). The CSE recommended services to address each of the child's identified needs, including placement in a small structured classroom and the provision of speech-language therapy and OT (Dist. Ex. 1 at p. 1). The child's teacher and speech-language therapist both had experience working with children with autism spectrum disorders (Tr. pp. 893, 1372-74). Respondent hired a behavioral consultant to help write the child's ABA programs and help train and supervise a classroom staff member to provide the child's 1:1 instruction (Tr. p. 49; see Dist. Ex. 1 at p. 1). Ten hours per week of individual discrete trial instruction was built into the child's program in an effort to provide him with a familiar learning environment while transitioning to a classroom setting (Dist. Ex. 1 at p. 1; Tr. pp. 48-49). The child's IEP provided for communication among staff assigned to work with the child (Dist. Ex. 1). The child's speech-language therapist and occupational therapist were to provide weekly consultation in the classroom (Dist. Ex. 1 at p. 4). Services/support for school personnel included monthly team meetings, along with behavioral intervention consultations five times during the school year (Dist. Ex. 1 at p. 2). The IEP also called for bi-monthly meetings between respondent's consultant and outside providers (Dist. Ex. 1 at p. 4) and monthly parent training (Dist. Ex. 1 at p. 1; Tr. pp. 48-50). To address the child's management needs, a positive reinforcement plan that included the use of reinforcers to elicit appropriate responses and behaviors, would be implemented throughout the day (Dist. Ex. 1at p. 2). In addition to addressing the child's motor deficits through direct therapeutic intervention, petitioners' son was recommended for adaptive PE (Dist. Ex. 1 at pp. 1, 3) and his program provided for access to a slant board and adaptive seating to assist him during fine motor activities (Dist. Ex. 1 at p. 2).
A child's IEP must address his or her individual needs, and in this instance the child had difficulty with transitioning. The record reflects that respondent recommended numerous supports and services to assist the child with his transition to a classroom setting. The July 16, 2004 CSE recommended that respondent's behavior consultant meet with his then current service providers over the summer and then conduct an observation (Dist. Ex. 1 at p. 4). The consultant observed the child twice at the child's summer camp program (Tr. p. 2097). In addition, she spoke either in person or by phone with the child's ABA teacher, program supervisor, speech therapist and mother (Tr. pp. 381, 2097-99). The CSE recommended ten hours per week of individual discrete trial instruction in an effort to provide the child with a familiar learning environment while transitioning to a classroom setting (Dist. Ex. 1 at pp. 1, 4; Tr. pp. 48-49). This instruction was provided by respondent's consultant and her staff (Tr. pp. 645, 946-47). The July 16, 2004 IEP recommended that a team meeting occur the first week of school (Dist. Ex. 1 at p. 4), which occurred with the child's parent in attendance (Tr. pp. 2056-57). Respondent's transition plan did not prevent the child from engaging in biting and scripting behaviors. The child attempted to bite others approximately six times (Tr. pp. 1916, 2107) between September 15, 2004 and October 15, 2004 (Tr. pp. 998, 2061; Parent Exs. FF, GG). The behavior did not occur again after that time. Petitioners' behavior specialist testified that the child's scripting behavior outside of school was reduced by October 4, 2004 (Parent Ex. E at p. 11; Tr. p. 1771). Respondent's staff acknowledged the child's scripting behavior, but reported that it did not impede the child's learning (Tr. pp. 600, 920, 1116, 1400). Furthermore, at petitioners' request, respondent implemented a response cost system that further reduced the child's scripting behavior to the point where he had reportedly met his IEP objective related to scripting by January 2005 (Tr. pp. 918-919). I find that respondent appropriately planned for the child's transition to a classroom setting and that the child's biting incidents and scripting behaviors did not impede petitioners' son's learning.
Following the January 2005 CSE meeting, respondent created an FBA and BIP addressing the student's biting behavior (Parent Exs. FF, GG). Citing this document, petitioners contend that respondent's behavior consultant improperly backdated important documentation relating to the child's interfering behaviors and his need for an FBA, BIP, and an effective transition plan at the beginning of the 2004-05 school year. Respondent acknowledges that the FBA and BIP were prepared in January 2005 and that the date on the document reflected the date events actually occurred (Tr. pp. 827, 831). I find that the date on the FBA is immaterial, as I have determined that an FBA was not required at the time of the July CSE meeting nor after the school year began.
Petitioners further contend that their son's goals and objectives for the 2004-05 school year were neither objectively measurable nor sufficiently challenging for their son. After reviewing the proposed goals and objectives, it appears that the child's IEP annual goals were overly broad and not objectively measurable. However, numerous objectives set forth in the IEP were measurable, provided the requisite specificity to enable the child's teachers and petitioners to understand the CSE's expectations with respect to each annual goal and included evaluative criteria, procedures and schedules to measure progress towards the annual goals over the course of the 2004-05 school year. Respondent's staff testified at length with respect to how the goals and objectives related to the child's identified needs (Tr. pp. 85-90, 745-56, 1113, 1381-1387). Petitioners reported that during a monthly meeting in September 2004 they contended that their son's IEP goals and objectives were not challenging enough, but respondent's CSE refused to change them (Tr. pp. 1927-28). Respondent's behavior consultant acknowledged that the child may have mastered some of the IEP objectives during the summer 2004, which was after the IEP was written, but noted that she worked on the skills anyway to determine if the child had generalized the skills (Tr. p. 385). Respondent's speech-language therapist testified that her recommendations regarding goals and objectives were similar to those of petitioners' private therapist (Tr. pp. 1411-12). The occupational therapist, who had worked with petitioners' son during the previous school year, confirmed that the goals and objectives were related to the child's level of need at the beginning of the 2004-05 school year (Tr. p. 1113). Although the child's goals and objectives in some instances should have been more objectively measurable, the record reflects that the goals and objectives were an accurate reflection of the child's present performance levels at the time the IEP was developed. Lack of specificity in some objectives did not, in this instance, result in a loss of educational opportunity for the child nor did it deprive the child of educational benefits under that IEP (Application of the Bd. of Educ., Appeal No. 05-058; Application of the Bd. of Educ., Appeal No. 04-068).
I find the impartial hearing officer's decision that respondent offered petitioners' son a FAPE to be thorough and well reasoned and find no need to modify her determination. Having determined that respondent has met its burden of proving that it offered to provide a FAPE to the child during the 2004-05 school year, the necessary inquiry is at an end and there is no need to reach the issue of whether the supplemental program components, including an additional 25 hours of individual home-based ABA per week, 10 hours of ABA supervision and consultation for the ABA home program per week, 2 hours of parent training per week, team meetings, on-going staff training, and 5 hours of individual speech-language therapy per week, selected by petitioners to be provided to their son at home during that school year were appropriate (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.
THE APPEAL IS DISMISSED.
Albany, New York
September 29, 2005
PAUL F. KELLY
2 The term “free appropriate public education” means special education and related services that--
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meets the stands of the State educational agency;
(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and,
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.