The University of the State of New York Seal
The State Education Department
State Review Officer

06-038

 

 

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 City School District of the City of Buffalo

 

 

Appearances:
Goldstein, Ackerhalt & Pletcher, LLP, attorney for petitioners, Arthur H. Ackerhalt and Elizabeth R. Wright, Esqs., of counsel

Hon. Michael B. Risman, Corporation Counsel, attorney for respondent, Denise M. Malican, Esq., of counsel

 

DECISION

           

            Petitioners appeal from the decision of an impartial hearing officer which denied their request for additional speech and language services and which did not order that respondent increase staffing levels in the child's classroom, although it determined that the educational program as implemented by respondent's Committee on Special Education (CSE) for their son for the 2004-05 school year was not appropriate.  Respondent cross-appeals from that portion of the impartial hearing officer's decision which found that it denied petitioners' son a free appropriate public education (FAPE).  The appeal must be sustained in part.  The cross-appeal must be dismissed.

 

            This appeal was initially dismissed on September 28, 2005 by Application of a Child with a Disability, Appeal No. 05-078.  Petitioners appealed that decision to the United States District Court for the Western District of New York and the matter is now reviewed again by agreement of the parties.  The appeal is reviewed as set forth herein on the record and pleadings previously filed. 

 

At the time of the impartial hearing, the child was nine years old (Tr. p. 379; Parent Ex. 10 at p. 1).  The child's eligibility for special education services and classification as a student with a learning disability (LD) are not in dispute (see 8 NYCRR 200.1[zz][6]).  According to petitioners, the child had been diagnosed with a variety of disorders, including a central auditory processing deficit, microcephalia, and hypotonia  (Tr. pp. 112-13).

 

During the 2003-04 school year, the child attended Summit Educational Resources (Summit), a private agency where his program was implemented in a 6:1+1 self-contained classroom with additional supports (Tr. pp. 113, 218, 220-21).  The classroom consisted of six children, a full-time special education teacher, teacher of the speech and hearing handicapped (TSHH)1 and classroom aide, as well as another student's one-to-one aide (Tr. pp. 113, 218, 220-21, 584).  Related service providers pushed into the child's classroom, which added to the number of adults in the classroom during academic instruction (Tr. p. 113).  The child had been in a similarly staffed class placement at Summit for the past four years (Tr. pp. 220-21, 223).

 

The child's special education teacher at Summit reported that the child made "significant progress" in all academic areas during the 2003-04 school year (Parent Ex. 19 at p. 2).  By March 2004 the child's reading skills were at a beginning second grade level and he was working on one-digit addition, writing his first and last name, spelling sight words and exchanging money (id.).  The special education teacher reported the child followed three to four step directions with little or no repetition and that he exhibited age appropriate phonemic awareness skills (id.).  The child's special education teacher described him as a quiet, happy and well-mannered student (id.).  Socially, the child was reported to enjoy interactive classroom activities and appropriately participated in conversations with peers and adults in the classroom (id.).  Physically, the child independently ambulated throughout the Summit school environment (Parent Ex. 19 at p. 3).  He exhibited significant deficits in the areas of visual memory, visual sequencing, and visual/spatial relationships that negatively affected his performance completing multi-step academic and self-help tasks (id.).  The special education teacher reported although the child was able to independently follow classroom routines he required reminders and redirections with new classroom routines or directions (Parent Ex. 19 at p. 4).  Redirection to complete tasks and reminders to follow the classroom plan were also used with the child when he exhibited silly or stubborn behaviors (id.).  The child would become distracted during highly involved activities (id.).

 

            The child's 2003-04 Summit TSHH testified that as of spring 2004 the child was able to write his first and last name with proper formation, write short answers to social questions, write on a straight line, independently navigate the school building and lunch line, maintain conversations with other students and answer questions using sentences (Tr. pp. 578-82).  She reported that the child was able to independently button and zipper his jacket, carry his lunch tray and open his milk carton (Tr. p. 602-04).  The educational coordinator from Summit testified that in Spring 2004 the child's academic skills were at a first or second grade level and he exhibited strong socialization skills (Tr. p. 621).

           

In preparation for development of the child's 2004-05 individualized education program (IEP) and as part of the child's triennial evaluation, a series of reevaluations was conducted in spring 2004, which included new psychological, educational, speech-language, audiological, and vision evaluations of the child (see Parent Exs. 16-20, 25). 

 

            In January 2004 an audiologist at Summit referred the child for an independent Auditory Processing Disorder (APD) evaluation (Parent Ex. 18 at p. 1).  The APD evaluation report indicated that the child frequently required directions repeated, responded in a slow manner to auditory information, was easily distracted in noise and exhibited weak organization skills (id.). The audiologist concluded the child exhibited a type of APD that could result in frustration with lengthy auditory information, difficulty understanding speech in the presence of noise, poor expressive language skills and weak reading comprehension skills (Parent Ex. 18 at p. 2).  The child also exhibited a type of APD that could result in difficulty with reading, spelling, receptive language skills and require an extensive amount of processing time (id.).  The audiologist's report stated that the child may have difficulty understanding auditory information and directions, and he may forget lengthy information (Parent Ex. 18 at pp. 4-5).  The audiologist indicated in her report that the child would benefit from a placement with "structured teachers who maintain a consistent daily routine" (Parent Ex. 18 at p. 5).

 

            The March 9, 2004 psychological evaluation report of the child stated that his overall intellectual ability was in the mild range of mental retardation (Parent Ex. 16 at p. 2). Although the child's verbal and quantitative reasoning skills were a relative strength, he exhibited weaknesses in abstract/visual reasoning and short-term memory skills (id.).  The psychologist reported that the child's adaptive living skills in the areas of communication and daily living skills were significantly delayed (id.).  The psychologist recommended a 15:1 "language based" academic setting (id.). 

 

            A March 10, 2004 speech-language evaluation report stated that during the 2002-03 school year the child exhibited a severe articulation delay, resulting in 80 percent speech intelligibility to a familiar listener in a known context (Parent Ex. 20 at p. 2).  The speech-language pathologist noted that during the evaluation the child required some redirection to focus his attention on the tasks presented and time to formulate his responses (id.).  She also indicated that "much time was necessary to complete designated tasks" (id.).  The speech-language pathologist's report concluded the child's receptive vocabulary was severely delayed and that he performed poorly on measures of both receptive and expressive language (Parent Ex. 20 at p. 3).  In the area of auditory perception, the child lacked proficiency for rote memory and exhibited hesitation with sentence formulation tasks (id.).  The speech-language pathologist reported that the child's deficits in the area of central auditory processing compounded his difficulty with comprehending language and expressing knowledge (id.).  The speech-language pathologist opined that the child might benefit from a "language based instructional program for learning disabled students with intensive speech-language intervention" (id.).

 

            The March 11, 2004 educational consultation report stated the child demonstrated "significant global delays" in cognitive, speech-language, social and physical areas (Parent Ex. 17 at p. 2). Although the child had made progress in academic achievement areas, the educational specialist reported the child was inconsistent in generalizing those skills to different settings (id.).  The educational specialist concluded that an "LD/LD program may best meet [the child's] needs" (id.).

 

The CSE and Summit staff noted that petitioners' son had made good progress at Summit, and decided he could be enrolled in respondent's public school system (Tr. pp. 69, 71, 74, 223, 224-25; see Parent Exs. 16, 18, 19, 21); petitioners agreed (Tr. pp. 115-16, 134, 135, 142, 147).  Prior to the CSE meeting in April 2004, the CSE Chairperson suggested that petitioners visit two placement options, one at P.S. 84 and one at P.S. 96 (Campus West) (Tr. pp. 71-72, 74, 114-16).  Petitioners visited and rejected the placement at P.S. 84, finding the class too restrictive and composed of students who had more significant needs than their son (Tr. pp. 114-15, 138; see also Dist. Ex. 5 at p. 1).  They also visited the class at Campus West with the child's classroom teacher from Summit and found it to be suitable for their son, in part because they observed its staffing to include a special education teacher, a TSHH, and a classroom aide (Tr. pp. 115-16, 119-20, 133, 139-41, 197; see Dist. Ex. 4, Parent Ex. 13).  The class was composed of both third and fourth grade learning disabled and language delayed children (Tr. pp. 116; Dist. Ex. 2).  Petitioners spoke to the teacher of the class, who verified that the class included full-time services from a special education teacher, a TSHH, and a classroom aide (Tr. pp. 116, 162, 141).

 

On April 23, 2004 the CSE met to develop the child's program for the 2004-05 school year (Parent Ex. 10).  The child's 2004-05 IEP recommended he receive instruction in a 15:1 classroom with the related services of group speech-language therapy twice per six day cycle, and individual speech-language therapy four times per six day cycle (Parent Ex. 10 at pp. 10, 12).  The CSE also recommended the child receive indirect vision consultation twice during the school year as well as testing accommodations of extended time and directions read/clarified (Parent Ex. 10 at pp. 11, 13).  The IEP provided annual goals and short-term objectives in the areas of reading, math, written language, oral communication, receptive language, expressive language and phonological awareness (Parent Ex. 10 at pp. 6-9).  The first page of the child's IEP contains the handwritten notation "LD/LD Class" (Parent Ex. 10 at p. 1).  The April 23, 2004 IEP was subsequently amended at a CSE meeting held on August 5, 2004 to add physical therapy and occupational therapy only, without any discussion of the LD/LD classroom or any changes to it (Tr. pp. 87-88, 119-20; Parent Ex. 10 at p. 16).

 

Respondent's LD/LD program model initiatives began in the late 1980's or early 1990's with classrooms consisting of 12 students, a special education teacher, a teacher aide and part-time speech-language pathologist (Tr. p. 21).  Respondent's supervisor of speech-language services testified that the LD/LD classroom model underwent many modifications over the years (Tr. pp. 21-22). During the 2003-04 school year, the 15:1 LD/LD program was implemented in a classroom with a special education teacher, classroom aide and a TSHH who was assigned to that classroom for the day, as petitioners had observed (Tr. p. 27).  Prior to the start of the 2004-05 school year, the fourth/fifth grade LD/LD model changed in that the TSHH was in the classroom for half the school day, and the classroom aide was removed (Tr. pp. 28, 32; Parent Ex. 6).

 

This change in the classroom staffing was discovered by petitioners on the day before the school year began, had not been discussed at the CSE meeting, and it appears from the record that respondent's staff present at the April 2004 CSE meeting were unaware of this impending change (Tr. pp. 46-47).  On the day before the first day of school, the child's mother telephoned the special education teacher of the child's proposed placement and was informed that the child's class was structured differently than the class she had observed in April 2004 (Tr. pp. 120, 122-25, see Tr. p. 161).  She was informed that the child would remain in a classroom with a 15:1 student to teacher ratio, but instead of third and fourth graders, the LD/LD class would consist of fourth and fifth graders (Tr. pp. 123, 179), and that due to district-wide staffing modifications it would be staffed full time solely by the special education teacher, with the TSHH dividing her time between that class and another, and there would be no classroom aide (Tr. pp. 122-25, 150).  By letter dated September 24, 2004 petitioners, through their attorney, notified respondent that they were rejecting respondent’s recommended program and they requested a due process hearing (Parent Ex. 9, see also Parent Ex. 7).

 

The impartial hearing was bifurcated.2  The second part of the bifurcated hearing, which is the subject of this appeal, was held on April 18 and 19, 2005.  Petitioners asserted at the impartial hearing that respondent denied their son a FAPE because it failed to implement his IEP as described by respondent’s representatives at the April 23, 2004 CSE meeting and did not provide notice to petitioners of material alterations in the IEP (IHO Decision, p. 2).    Respondent asserted that the IEP was implemented as written, proper notice was provided to petitioners and at the April 23, 2004 CSE meeting, its representatives had informed petitioners that the IEP did not specify a full-time speech and language teacher or classroom aide (id.). 

 

The May 30, 2005 impartial hearing officer’s decision held that the staffing changes to the child's 2004-05 program were a material alteration to the 2004-05 IEP, the alteration occurred without notice to petitioners and without their consent, and that the implementation of the child's 2004-05 IEP resulted in a denial of a FAPE (IHO Decision, p. 3).  The impartial hearing officer declined to grant petitioners' request for compensatory services but ordered the CSE to convene immediately in order to evaluate the child’s needs, and offer and implement a FAPE while recognizing the difficulties the child experienced regarding the transition from his private placement and the effects of classroom staffing changes to his classroom during the 2004-05 school year (id.).

 

Subsequent to the issuance of her decision, at the behest of petitioners' attorney and over the objection of respondent's counsel, the impartial hearing officer conducted a July 8, 2005  conference call with counsel for petitioners and respondent, and subsequently issued a "supplemental" decision on July 25, 2005.  The supplemental decision purported to enter an audiotape of the June 20, 2005 CSE meeting into evidence and purported to extend petitioners' time to file an appeal by providing for the 35 day timeline to begin running on July 8, 2005 (Pet. Ex. C). 

 

On appeal, petitioners assert that the impartial hearing officer improperly declined to order the relief necessary to provide the child with a FAPE in the least restrictive environment.  Specifically, petitioners allege that although the CSE reconvened on June 20, 2005 as ordered by the impartial hearing officer, it failed to implement the decision of the impartial hearing officer by recommending the same placement for the 2005-06 school year as was offered in the 2004-05 IEP which the impartial hearing officer had determined to be inappropriate. Petitioners seek reinstatement of a full-time speech-language pathologist and a full-time classroom aide into their child's classroom, and also seek unspecified "additional appropriate staffing support services" for the 2005-06 school year to compensate for their child's denial of a FAPE in the 2004-05 school year.

 

Respondent cross-appeals and argues that a FAPE was provided to the child in accordance to the 2004-05 IEP.  Specifically, respondent asserts that the impartial hearing officer used an inappropriate legal standard when she noted that the child had improved during the 2004-05 school year during a period when the speech-language pathologist was reinstated into the classroom.  Respondent contends that an increase in progress with additional staff is not the standard for a FAPE, and also that it should not have to prove other factors that could be responsible for the child's progress, such as cumulative learning.  Respondent also argued that the impartial hearing officer abused her discretion in concluding that the three-staff model, as opposed to the 15:1 class, was what the CSE had intended for the child's 2004-05 school year, and that the three-staff model was merely a voluntary initiative to which the impartial hearing officer should not have attached a notice requirement.  Respondent seeks dismissal of the petition, reversal of the notice requirement as found by the impartial hearing officer, and reversal of the impartial hearing officer's finding that staff and initiative changes resulted in the "change in the provision of FAPE." 

 

A purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487)3 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528 [2005]).  A FAPE includes 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]).4  The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

 

A FAPE is offered to a student, when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) 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]).  While school districts are required to comply with all IDEA procedures, 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]).  A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, or seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; 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 compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]).  In evaluating the substantive program developed by the CSE, 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. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 2000][citation and internal quotation omitted]).  This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).

 

A CSE is required to "revise the IEP as appropriate" to address, among other issues, "any lack of expected progress toward the annual goals and in the general curriculum, where appropriate" and/or "other matters" (20 U.S.C. § 1414[d][4][A]; see also 34 C.F.R. § 300.343[c]; 8 NYCRR 200.4[f], [g].  "Each public agency is responsible for initiating and conducting meetings for the purpose of developing, reviewing, and revising the IEP of a child with a disability." (34 C.F.R. § 300.343[a]).  The CSE also had a responsibility to ensure that the parents of the child with a disability are members of any group that makes decisions on the educational placement of their child (20 U.S.C. § 1414[f]). 

 

First, I must note that the impartial hearing officer's decision dated July 25, 2005 was issued without authority and therefore was issued in error.  Both federal and state regulations provide that an impartial hearing officer's decision is final, except that either party may appeal from such decision to the State Review Officer (see 34 C.F.R. § 300.510[a]; see 8 NYCRR 200.5[i][4][v]; Application of a Child with a Disability, Appeal No. 05-022).  The May 30, 2005 decision was final.  There was no authority for the impartial hearing officer to retain jurisdiction, reopen this matter and issue the July 25, 2005 "supplemental" decision (Application of a Child with a Disability, Appeal No. 05-007).  The basis of petitioners' appeal is that the impartial hearing officer failed to provide for appropriate relief in her May 30, 2005 decision, and therefore the impartial hearing officer's July 25, 2005 decision is not considered for purposes of this appeal.

 

Second, the essence of the appeal and cross-appeal is whether the impartial hearing officer erred in finding a denial of FAPE for the child for the 2004-05 school year and whether she then erred in concluding that the matter should be remanded to the CSE to evaluate the child's needs and design and implement a FAPE.  I concur with the impartial hearing officer's relief; however, I find that FAPE was denied during the 2004-05 school year upon different grounds.  Specifically, respondent erred by failing to convene a CSE in a timely manner after observing the child's lack of meaningful progress and prior to providing the child with a one-to-one aide,5 or thereafter prior to removing the one-to-one aide. 

 

            Respondent's CSE Chairperson testified at the impartial hearing that what was being offered was a 15:1 placement, with no guarantees regarding additional staff (Tr. p. 76).  However, it is also undisputed that, at the time the IEP was created, all parties envisioned that the child's program would be implemented in an LD/LD classroom, which was defined by respondent at the time as having three full-time staff (Parent Ex. 10, Dist. Exs. 1, 2).  Additionally, the CSE Chairperson also testified that she had in fact gone to the placement office before the CSE meeting and had asked the placement office to hold a spot for the child, if the parents accepted it (Tr. pp. 78-79).  Petitioner mother testified that the CSE Chairperson "said we could get LD/LD at Campus West" (Tr. p. 117). 

 

The child began the 2004-05 school year, the school year at issue on the present appeal, identified as a fourth grader in respondent's fourth/fifth grade 15:1 LD/LD classroom (Tr. pp. 161, 163, 379).6  At an unspecified date the child's designation was changed from fourth to third grade (Tr. p. 379).  Despite this change in grade designation, from September 2004 to January 2005 the child's program was implemented according to respondent's fourth/fifth grade LD/LD model that included a full-time special education teacher and half-day TSHH services (Tr. pp. 19, 32, 667; see Parent Ex. 6).7  During this time, the child received daily speech-language therapy in a group of three students, and individual speech therapy four days out of a six-day cycle (Tr. pp. 184-85, 369-70). 

 

During the course of the 2004-05 school year, as set forth in more detail below, the staffing in the child's classroom was altered throughout the year.  In fall 2004 the child was assigned a one-to-one aide, who remained assigned to the child until January 2005 (Tr. pp. 449, 463).  Later in January 2005, classroom staffing changes occurred that resulted in the addition of a classroom aide, and the assignment of the TSHH to the classroom on a "full time" basis (Tr. pp. 443, 445, 463; Dist. Ex. 6).8   The child's classroom staffing levels were again changed following respondent's Easter recess in April 2005 (Tr. pp. 463-64, 522, 544).  The class resumed staffing levels consistent with the beginning of the school year: 15 students to one special education teacher ratio, removal of the classroom aide, and reduction of the TSHH's time in the classroom to half the day rather than full time (id.).  At no time was a CSE meeting reconvened during the course of the school year (Tr. pp. 123, 358, 515-16). 

             During the first half of the school year until January 2005 the child's special education teacher provided direct small group instruction to one of three groups, a second small group received speech-language instruction and the third small group worked independently (Tr. pp. 164-65).  The special education teacher testified that when the child entered her classroom in fall 2004 he raised his hand "all the time" for assistance and she opined that he was uncomfortable with the change in his environment (Tr. pp. 428-29).  She stated at the beginning of the school year she was aware that the child was used to having more assistance because he had come from Summit where there were more adults in the classroom (Tr. p. 430). The special education teacher indicated that the child was not familiar with her classroom procedures and that the work she gave the child was difficult for him (Tr. pp. 429-30).  At the beginning of the 2004-05 school year, the child did not write on the line during writing tasks and did not write more than two or three words on a piece of paper (Tr. p. 405-08, 436, 440-42; Parent Exs. 28, 29).  The TSHH agreed with the special education teacher that at the beginning of the school year the child raised his hand for assistance "whether he needed it or not" (Tr. p. 388).  The TSHH testified that the child exhibited difficulty with conversation and when given 30 minutes to complete a writing task, the child wrote very little and did not write on the lines of the paper (Tr. pp. 386, 396-97; Parent Exs. 28, 29). 

In October and November 2004 the child's Medicaid coordinator visited the child's classroom on two occasions and spoke with the child's special education teacher about how he was doing in the classroom (Tr. pp. 204-07).  The Medicaid coordinator testified that the special education teacher told her that the child "wasn't doing well," and that he was having difficulty following along, following routines and that he continued to require a lot of assistance throughout the day (Tr. p. 206).  The special education teacher reported to the Medicaid coordinator that the child was having difficulty in the lunchroom, both eating and navigating the lunch-line, and with personal skills, dressing skills, and using the restroom independently (Tr. pp. 211-12).  The Medicaid coordinator testified the special education teacher told her the child was not following classroom routines, following along academically, answering questions appropriately or socializing with other children (Tr. p. 212).  In October 2004 the child's mother observed him weekly during library time and reported the special education teacher appeared frustrated by the child's behaviors (Tr. p. 517).  She testified the child looked confused, did not complete work, required direction and was "very inhibited" (id.).

 

In fall 2004 respondent assigned a one-to-one aide to the child following a request from his special education teacher (Tr. p. 207; Dist. Ex. 6).  No CSE meeting was held to discuss and determine the appropriateness of adding the one-to-one aide to the child's program (Tr. p. 515).  The special education teacher testified that she never told petitioners about the aide, but that petitioner mother came into class one day and saw the aide (Tr. p. 468).  The special education teacher indicated "without a doubt" the child needed a one-to-one aide at the beginning of the 2004-05 school year due to her concern about the child's safety, navigation around the building, organization and need for constant redirection (Tr. pp. 430-31; Dist. Ex. 6).  She indicated that during the time the child was assigned a one-to-one aide, the aide focused more on meeting the child's physical needs and his organization than on reinforcing the special education teacher's instruction (Tr. pp. 445-46).

 

The child's mother testified that the one-to-one aide was "stifling" to the child and that it was difficult for the child to interact socially with others in the classroom when the one-to-one aide was present (Tr. p. 515).  She also felt that development of the child's independence in the classroom was inhibited by the presence of the one-to-one aide (Tr. p. 516).  The child's mother noted changes in the child's behavior at home after the one-to-one aide was assigned, including an increase in tantrum behavior (id.).  She reported the child expressed to her that he did not like or want the one-to-one aide (id.).  The special education teacher confirmed that she herself did not find the aide appropriate for the child, noting that the aide was overprotective (Tr. pp. 465-66).  Summit staff also confirmed that a one-to-one aide would not be appropriate for the child (Tr. p. 538).  Respondent removed the one-to-one aide in January 2005 (Tr. pp. 449, 463-64, 522, 544).

 

From January to April 2005 respondent added a full-time TSHH and classroom aide to the child's classroom, which was consistent with the LD/LD classroom as petitioners had initially observed (Tr. pp. 375-76).  The special education teacher attributed the child's progress beginning in January 2005 to the addition of the full-time classroom aide (Tr. p. 438).  The special education teacher testified that the child benefited from having a classroom aide as opposed to a one-to-one aide (Tr. p. 445).  The special education teacher reported the child would have needed a day to complete a spelling assignment independently, but took only one hour to compete the assignment with the assistance of the classroom aide (Tr. pp. 462-63).

Both the special education teacher and the TSHH testified that the child made little progress up until January 2005; their testimony is supported by the quarterly reports (Tr. pp. 383-84, 425-26; Dist. Exs. 11, 12).  The special education teacher testified that the student made "minimal" progress between September 2004 and December 2004, with the biggest increase in progress beginning in January 2005 (Tr. pp. 425-26).  She attributed the increase in the child's progress to the addition of "appropriate support" for the child in the form of a full-time TSHH and classroom aide (Tr. pp. 438, 449-50, 465).

The full-time TSHH and classroom aide were removed from the child's classroom following respondent's Easter recess in April 2005 (Tr. pp. 463-64, 522, 544).  The special education teacher testified that without the additional adults in the classroom the child had more "down time," resumed interrupting behavior and took more time to complete tasks (Tr. p. 464). The child's mother indicated that once the full-time TSHH and classroom aide were removed, the child exhibited more disorganization and an increase in tantrum behavior (Tr. pp. 522-23).

 

The child's mother testified that her understanding of the proposed LD/LD classroom staffing level for the 2004-05 school year would include a full-time special education teacher, TSHH and classroom aide (Tr. pp. 118-19).  The child's mother testified she would not have agreed to the proposed LD/LD placement in April 2004 if she had known the program did not include a full-time TSHH and classroom aide (Tr. p. 125).  While respondent's supervisor of speech and language services may have testified at the impartial hearing that there was nothing inappropriate about the child receiving a program staffed at a ratio of 15:1 (Tr. pp. 36-41), this testimony stands on its own and the testimony from multiple providers most familiar with the child is overwhelming that a 15:1 program would not afford the child enough support.  Staff from Summit who knew the child during the 2003-04 school year testified they did not believe a 15:1 classroom to be appropriate for him (Tr. pp. 541-42, 587-88, 626-27).  Summit staff testified that given the child's significant needs he required more support in the classroom than one special education teacher could give with that many other students (Tr. pp. 542, 627).  The TSHH who worked with the child during the 2003-04 school year stated she would not have supported a 15:1 program without any other adults in the classroom for the child (Tr. p. 588). The Medicaid coordinator testified that a 15:1 class ratio would not give the child enough support or attention to be successful (Tr. p. 201).  

As detailed below, I concur with the impartial hearing officer that the child was denied a FAPE for the 2004-05 school year, but on the basis that the child was denied educational benefits and opportunity by respondent's failure to reconvene a CSE to review the child's program in light of the indications that the child was struggling in the fall and due to the district's unilateral decision to provide and then remove a one-to-one aide, and on the basis that petitioners' opportunity to participate in the IEP formulation process to address these concerns was seriously infringed upon.9  The CSE should have reconvened to address the child's lack of expected progress toward his annual goals and his general difficulties in the classroom and school environment, as observed by his special education teacher at the commencement of the 2004-05 school year and throughout that fall  (see 20 U.S.C. § 1414[d][4][A]; 34 C.F.R. § 300.343[a], [c]; 8 NYCRR 200.4[f], [g]).  The CSE had a responsibility to include petitioners in the decision to place a one-to-one aide with the child in fall 2004, which affected the restrictiveness of the program (see generally 20 U.S.C. § 1414[f]).  When questioned why the CSE did not convene to discuss the addition of the child's one-to-one aide, respondent's supervisor of speech-language services testified that the addition was a safety issue and also that "once hearings start, we don't have any CSE action until we get the results of the hearing" (Tr. p. 358).  Once respondent became aware that the child needed extra support, the CSE should have reconvened as soon as practicable to address the situation with input from the child's parents.  Respondent not only placed the aide initially without a CSE meeting, but then removed the aide in January 2005, also without a CSE meeting.

As set forth above, I concur with the impartial hearing officer's conclusion that the child was denied a FAPE for the 2004-05 school year for the reasons detailed herein.10  

 

The impartial hearing officer, upon finding that a FAPE was denied to the child for the 2004-05 school year, ordered relief as follows in her decision dated May 30, 2005:  "I decline to order compensatory services.  I order the CSE to convene immediately in order to evaluate [the child's] needs, and design and implement a FAPE.  I order the CSE to recognize that [the child] has had a difficult year as a result of: (1) his transition from Summit to [respondent's public school], and (2) the staffing changes in his 2004-05 classroom."  (IHO Decision, p. 3).  

 

Given the passage of time from the creation of the April 23, 2004 IEP, the IEP in dispute, to the issuance of the impartial hearing officer's decision, the impartial hearing officer appropriately exercised discretion under the circumstances of the present case when she declined to order more specific relief and ordered the CSE to reconvene, particularly after she determined an evaluation of the child's then-current needs was appropriate (see, e.g., Application of a Child with a Disability, Appeal No. 05-062).  Despite petitioners' assertions, the impartial hearing officer was not required to set forth specific parameters for the CSE to include in its recommendations for the child's 2005-06 IEP.  I concur with the impartial hearing officer's decision on this issue and I also decline to order a reinstatement of the three person staffing level for the child's classroom as petitioners request. The record before me does not provide any basis for determining what the child's current special education needs are, or for determining whether additional classroom supports or services are currently appropriate.

On appeal, petitioners also generally seek compensatory educational services to make up for the denial of FAPE during the 2004-05 school year, but fail to specify any specific individual services that would compensate for the loss of educational benefit.  To the extent petitioners request compensatory education services, this request is denied; however, I will grant petitioners' request to the extent it can be construed as a request for consideration of additional services.  While compensatory education is a remedy that is available to students who are no longer eligible for instruction, I note that State Review Officers have awarded additional services to students who remain eligible to attend school and have been denied appropriate services, 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. 04-074; Application of a Child with a Disability, Appeal No. 02-030).  It is not apparent from the record whether any additional educational services have already been provided to petitioners' son.  I will direct that the CSE reconvene and determine whether any additional services are appropriate at this time. 

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

 

            THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED. 

THE CROSS-APPEAL IS DISMISSED.

            IT IS ORDERED that the impartial hearing officer's decision is hereby annulled to the extent indicated; and

            IT IS FURTHER ORDERED, unless the parties agree otherwise, that respondent's CSE meet within 30 days of the date of this decision to consider the provision of additional services to petitioners' son consistent with this decision.

 

Dated:

Albany, New York

 

__________________________

 

June 2, 2006

 

PAUL F. KELLY
STATE REVIEW OFFICER

 

1 The difference between a speech-language pathologist and a teacher of the speech and hearing handicapped was discussed in the transcript at pages 341 and 342.  The record clarified that the term TSHH was preferred because that is what is required to work in the schools in New York State (Tr. p. 342).

2 The first part of the bifurcated hearing, which addressed the sole issue of pendency placement, was held on November 19 and 22, 2004 and was addressed in Application of the Bd. of Educ., Appeal No. 05-006. 

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 [IDEA], 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.  The relevant events in the instant appeal took place prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEA 2004 do not apply.

  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)  meet the standards 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.

20 U.S.C. § 1401[8]; see also 34 C.F.R. §300.13; 20 U.S.C. §1414[d].

5    The terms one-to-one aide and personal aide are used interchangeably in the record.

6 The child's program at Summit during the 2003-04 school year was implemented in a classroom that did not assign grade designations to the students within the class (Tr. p. 653). After discussion at the April 23, 2004 CSE meeting, petitioner mother was under the impression that the child would be designated a third grader for the 2004-05 school year while in respondent's third-fourth grade LD/LD program (Tr. p. 118; see Dist. Ex. 4).  The child began the 2004-05 school year identified by respondent as a fourth grader and his special education teacher stated she prepared for assessments and instructed the students in academic work at the fourth/fifth grade level (Tr. pp. 170-72).   Although during the year the child's grade designation changed, the supervisor of speech-language services testified that the special education teacher was competent to modify the child's curriculum as needed, and that it was her job to customize the instruction and curriculum for all the students in her class (Tr. pp. 49-50, 379).  The impartial hearing officer found that the child received instruction appropriate to his grade level, despite the confusion (IHO Decision, p. 10). 

7 The child's teacher testified she believed the 2004-05 program was considered under respondent's K-4 model where the TSHH or speech-language pathologist would be in the classroom for 60-90 minutes per day (Tr. p. 180).

8    Some of the confusion regarding the length of time the TSHH was in the classroom during the 2004-05 year comes from use of the term "in the classroom full time."  The TSHH testified that although her office was physically located within the classroom, she did not provide direct speech-language therapy to the entire class all day (Tr. pp. 377, 379-80).  When she provided individual or small group therapy, she did not provide instruction to the other students in the classroom (Tr. pp. 379-80).  Prior to January 2005, the TSHH was assigned to the child's class and another classroom (Tr. p. 123). From January 2005 until after respondent's Easter recess the TSHH's only responsibility was to the child's LD/LD class (Tr. pp. 375-76).

9  This determination would remain if during the administrative hearing the burden had been placed on the parent, the party challenging the IEP, as the Supreme Court recently established in Schaffer v. Weast, 126 S.Ct. 528, 537 (2005) (see Application of the Bd. of Educ., Appeal No. 05-120).

10  Respondent argues that at the time the IEP was formulated in April 2004 it offered the child a FAPE.  I do not decide that issue in light of my determination that the child was denied a FAPE as a result of respondent's failure to appropriately convene an IEP meeting as detailed above.