The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Huria S. Naviwala, of counsel
Petitioner appeals from a decision of an impartial hearing officer which determined that a resolution agreement between petitioner and respondent was binding and that petitioner had not demonstrated that the educational program and services that respondent's Committee on Special Education (CSE) had recommended for her son for the 2005-06 school year failed to offer a free appropriate public education (FAPE). The appeal must be sustained in part.
At the commencement of the impartial hearing on March 15, 2006, petitioner's son was five years old and not attending school. The child was receiving speech therapy and occupational therapy through Related Service Authorizations (RSAs) provided by respondent's CSE (Tr. pp. 33-34, 105-06, 112-13, 117, 222-23; Dist. Ex. 6 at p. 9, Parent Exs. D, E, F). The student's eligibility for special education programs is not in dispute, however, his specific disability classification is a point of contention (see 8 NYCRR 200.1[zz]). Petitioner agrees with the child's current classification as a student with speech or language impairment, but seeks the additional classification of a student with an other health-impairment.
Respondent's Committee on Preschool Special Education (CPSE) classified petitioner's son as a preschool student with a disability (Parent Ex. C). During the 2004-05 school year he attended a full-day, five-day a week center-based preschool program in a 10:1:3 class (Dist. Ex. 5 at p. 1), where he received related services of speech (Dist. Ex. 2 at p. 1), occupational (Dist. Ex. 3 at p. 1) and physical therapies (Dist. Ex. 4 at p. 1), as well as the services of a 1:1 paraprofessional (Parent Ex. C). On May 25, 2005, petitioner met with the school psychologist and others on the School Based Support Team (SBST) (Parent Ex. H; Tr. pp. 177-78, 184-85). The hearing record indicates that discussions took place regarding the child's need for evaluations (Tr. p. 178) and the mother's interest in a health paraprofessional for her son (Tr. p. 184). According to the meeting minutes, the child's mother indicated that her son had special dietary needs, which required strict observance in school (Parent Ex. H). The school psychologist testified that at the meeting she requested that petitioner provide respondent with updated medical information documenting the child's need for a health paraprofessional (Tr. p. 184). Petitioner removed her son from his preschool program sometime in May 2005 following her allegations of neglect by the preschool provider (Tr. pp. 35, 53-54).
A CSE convened on June 10, 2005 (Dist. Ex. 6). Although the meeting was scheduled for a time and date suggested by the parent (Tr. pp. 77, 191-92), due to personal reasons the parent did not attend (Tr. p. 172). In advance of the meeting the parent also had waived the attendance of the additional parent member (Dist. Ex. 7; Tr. p. 127) and requested that the child's preschool providers not attend (Tr. p. 190). The most recent evaluations and progress notes available to CSE were those generated by the child's preschool providers in December 2004 and January 2005 (Dist. Exs. 2, 3, 4, 5). The child's mother did not give consent for the CSE to perform additional evaluations of her child (Tr. pp. 177-78). According to the preschool evaluations and reports, the child exhibited deficits in expressive and receptive language (Dist. Ex. 2 at pp. 2-4), pragmatic language (Dist. Ex. 2 at p. 4), play skills (Dist. Ex. 2 at pp. 2, 4), auditory processing difficulties (Dist. Ex. 2 at p. 4), attending (Dist. Ex. 5 at p. 2), social relatedness (Dist. Ex. 5 at p. 2), grasping and visual motor integration skills (Dist. Ex. 3 at p. 2), sensory integration (Dist. Ex. 3 at p. 2) and self-care skills (Dist. Ex. 5 at p. 4). In addition to the needs identified by the child's preschool providers, the child's mother maintained that the child had health and dietary needs (Parent Ex. H; Tr. p. 184). At the impartial hearing, respondent's hearing designee (designee) characterized the child as cognitively and academically "bright" (Tr. pp. 107, 115) and noted that the child's preschool had reported that he demonstrated good readiness skills (Tr. p. 107). The child's preschool teacher recommended that the child be placed in a setting that provided continued structure throughout the day, a social context in which the child could express and practice his emerging social awareness, and exposure to language and play of same aged peers (Dist Ex. 5 at p. 7). Based on the available information, respondent initially considered placing the child in a 12:1+1 class in a community school (Parent Ex. H; Tr. pp. 77, 95, 110, 178). The student's mother expressed interest in a District 75 inclusion class (Tr. pp. 77, 95, 110) which respondent agreed to consider (Tr. p. 178) and did recommend (Dist. Ex. 6).
The individualized education program (IEP) developed by the June 10, 2005 CSE reflected the child’s abilities and needs as described in the December 2004/January 2005 preschool reports. The CSE recommended that the child be classified as having multiple disabilities (Dist. Ex. 6 at p.1; Dist. Ex. 8; Tr. pp. 76, 187-89). To address the student's academic needs the CSE recommended that the child be placed in a general education kindergarten where he would receive special education teacher support services (SETSS) from a specialized school (District 75) one period per day as a direct service in the general education classroom (Dist. Ex. 6 at p. 1; Tr. pp. 80-81). In addition, the CSE recommended that the child be assigned a full time shared paraprofessional (Tr. pp. 79-81, 204-05) as a means of addressing the child’s social/emotional and behavioral needs (Dist. Ex. 6 at p. 4). Based on the child's speech/language and fine motor deficits the CSE recommended the child receive individual speech/language therapy twice weekly for 30 minutes and individual occupational therapy twice weekly for 30 minutes (Dist. Ex. 6 at p. 9; Dist. Ex. 8). Although the child's preschool provider recommended that he receive speech three times per week (Dist. Ex. 2 at p. 4) the child's speech frequencies were reduced in order to limit the amount of the time the child was pulled from the classroom (Tr. p. 82). The child's IEP contained goals and objectives related to improving basic skills in math, reading, and writing (Dist. Ex. 6 at pp. 6-7). Additional goals and objectives targeted the child’s weaknesses in expressive and receptive language, and fine motor functioning (Dist. Ex. 6 at pp. 6-7). While the reports generated by the child's preschool providers indicated that the child had deficits in play skills and social relatedness, they also indicated that the majority of the child's interactions were peer centered and the child was making qualitative improvements in socialization and social relatedness (Dist. Ex. 5 at p. 2). The child's IEP contained one objective related to decreasing the child's delayed echolalia (Dist. Ex. 6 at p. 7), a behavior that appears to have interfered with his ability to demonstrate and sustain higher-level social skills with his peers (Dist. Ex. 5 at p. 4). The IEP did not include counseling services. The child's IEP indicated he would be assessed using alternative assessment (Dist. Ex. 6 at p. 9).
Following the June 10, 2005 CSE meeting, the child's mother expressed numerous concerns regarding the proposed IEP. She indicated that she had concerns regarding the child's ability to handle the District 75 class given his sensory needs and also had concerns regarding the role of the paraprofessional and whether one period per day of SETSS would be enough (Tr. pp. 85-86). The child’s mother contacted respondent on numerous occasions questioning the child’s multiple disabilities classification (Tr. pp. 134, 135, 192, 198). After observing the proposed program the parent had additional concerns regarding the number of children in the proposed class, the role of the paraprofessional, and the willingness of the school to address her son's dietary needs (Tr. pp. 86-89). The child's mother asserted that the child's IEP goals were inadequate as the child had already mastered them and further requested that counseling be added to the program to address the child's social skill deficits (Tr. pp. 134-35). The parent later indicated she wanted more speech and occupational therapy (Tr. p. 135).
The IEP developed by the June 10, 2005 CSE contained both goals and objectives and special education and related services that targeted the majority of the child's identified needs. The parent’s concerns relative to class size and the recommended amount of SETSS services were reasonable in light of the fact that the child was transitioning from a 10:1+3 preschool class and respondent initially considered recommending a 12:1+1 classroom for the child. However, the parent's actions, including her refusal to give consent to the CSE to further evaluate or observe the child and her request that the child's preschool providers not attend the child's CSE meeting, impeded respondent's ability to obtain additional information relative to the child's then current levels of performance, as well as his academic and social needs. In addition to refusing to provide consent prior to the June 10, 2005 CSE meeting (Tr. pp. 177-78, 104, 186-87), during the impartial hearing the parent maintained that it would be a conflict of interest for respondent to evaluate the child (Tr. pp. 93, 96). Had the parent allowed the participation of professionals familiar with the child at the June 10, 2005 CSE meeting or allowed the district to evaluate the child in order to gain further insight into his abilities and needs, the CSE would have had additional information to respond to the parent's concerns and more precisely tailor the child's already adequate program to his needs. Relative to the child’s health and dietary needs, at the time of the June 10, 2005 CSE meeting the parent had not submitted any documentation to respondent substantiating the need for services or accommodations to address the child's alleged needs in this area.
Respondent's designee testified that notes in the child's school record indicated that on August 31, 2005, petitioner contacted respondent requesting an explanation from the school psychologist of the "multiple disabilities" classification and requested another "meeting" (Tr. p. 134). Respondent's designee testified that a September 2, 2005 note indicated petitioner again spoke to school personnel and raised objections. On September 20, 2005, petitioner cancelled her request for a CSE review and instead requested mediation and RSAs for her son's recommended therapies (Tr. p. 135). By letter dated September 22, 2005, petitioner reiterated her request in writing for RSAs for speech and occupational therapies and stated her objection to the recommended placement (Parent Ex. J). Central to petitioner's decision to reject the placement was her belief that her son's dietary needs could not be addressed in the proposed placement (Tr. pp. 86-88, 95, 133; Parent Ex. J at p. 2). In her impartial hearing request, petitioner stated that her son's every meal "must be supplemented with enzymes and probiotics" and that he can only have unprocessed foods from home due to severe allergies (Parent Ex. A). She further noted that his "gastrointestinal issues, compliance issues, allergies, and supplement needs" created a need for a truncated school day or other alternative solution (id.). The child never attended the District 75 inclusion program (Tr. pp. 128-29) however; he reportedly began receiving occupational therapy in mid to late October (Tr. pp. 50-51) and speech therapy on November 18, 2005 (Tr. pp. 38, 48, 50-51, 237; Parent Ex. I).
An unsuccessful mediation session was held on October 31, 2005 (Dist. Exs. 1 at pp. 1; 19).1 By letter dated November 4, 2005, petitioner requested a prehearing conference and an impartial hearing (Dist. Ex. 1). Petitioner sought a classification which took into consideration her son's "food intolerances," an increase in speech-language therapy and occupational therapy, compensatory services, counseling, home-based applied behavioral analysis/special education itinerant teacher (ABA/SEIT) services, reimbursement for transportation costs associated with related services, and a truncated school day (Dist. Ex. 1 at p. 1). Petitioner indicated that the full-day District 75 inclusion program would have been academically appropriate for her son, except for the principal's alleged unwillingness to accommodate her son's need for a truncated day or offer viable alternatives for addressing his health needs (Dist. Ex. 1 at p. 1).
On November 11, 2005, respondent replied to the impartial hearing request by stating that the CSE had agreed to change the child’s classification to speech impaired, that the child’s impairment relative to food intolerance needed to be documented by a pediatrician on an updated medical form, and that the last occupational therapy evaluation provided a rationale for increasing occupational therapy. Respondent's reply also noted that a CSE review was needed to make changes on the IEP, that a new psychoeducational evaluation needed to be scheduled and the results of that evaluation would determine the child’s need for counseling, that an RSA for speech therapy was issued on two occasions, and that because the related service provider goes to the child’s home, there is no need for transportation (Tr. p. 128; Dist. Ex. 11 at p. 1).
A resolution session was held on November 28, 2005, with the child's mother participating in the session via telephone (Dist. Ex. 15 at p. 2; Dist. Ex. 16). The parties agreed that the child's related service frequencies would be changed to reflect the addition of the following: speech/language therapy one time per week, occupational therapy one time per week, and counseling one time per week (Dist. Ex. 12 at p. 1). There were no changes to the child's program or placement (Dist. Ex. 12 at p. 1). An interim service plan (ISP) was developed (Dist. Ex. 13) but rejected by the parent who wanted changes made directly on the child's IEP (Tr. p. 78; see also Tr. pp. 129-30). A new IEP, reflecting a change in classification from multiple disabilities to speech impairment was generated (Dist. Ex. 15 at p. 1). The related service recommendations were modified, increasing the child's speech and occupational therapy frequencies to three times per week and adding a once weekly individual counseling session (Dist. Ex. 15 at pp. 2, 11; Tr. pp. 83, 130). The IEP also contained new occupational therapy goals and objectives (Dist. Ex. 15 at p. 8). Subsequent to agreeing to the terms of the resolution agreement in writing (Dist. Ex. 12 at p. 2; Pet. Ex. A at pp. 4-5), petitioner contacted respondent by letter dated December 12, 2005 to void the agreement (Dist. Ex. 18).
An impartial hearing convened on January 26, 2006. By decision dated March 15, 2006, the impartial hearing found that petitioner did not establish that respondent had failed to offer the child a FAPE for the 2005-06 school year (IHO Decision, pp. 14, 18). The impartial hearing officer determined that when the June 10, 2005 CSE met to develop the child's IEP, it did so without a current evaluation or observation because petitioner would not allow the CSE to conduct them (IHO Decision, p. 14). She found that petitioner was bound by the resolution agreement signed by the parties and that the evidence credibly established that the child's program extended through summer 2006 (IHO Decision, p. 16).
With respect to petitioner's requests to add "health concerns" to the IEP, change the child's classification to reflect health concerns, increase counseling, and truncate the child's school day, the impartial hearing officer determined that there was no evidence in the record to support these requests (IHO Decision, p. 16). The impartial hearing officer stated that petitioner had been asked on numerous occasions to document her son's medical issues and dietary needs, and she failed to do so. In addition, the impartial hearing officer found that petitioner had not cooperated when respondent sought to conduct a psychoeducational evaluation, which would have been used to consider the child's counseling needs. The impartial hearing officer found petitioner's request for a truncated day to be rendered moot because petitioner had made it very clear that her son would not return to school during this academic year. Finding that petitioner had not shown that her requests were appropriate or that respondent's failure to address petitioner's requests had denied the child a FAPE, the impartial hearing officer denied petitioner's requests. The impartial hearing officer also found insufficient evidence to support petitioner's requests for ABA/SEIT services and reimbursement for transportation services. Addressing petitioner's requests for compensatory services, the impartial hearing officer found no basis to grant additional services, based on the short period of time the child was without services and the circumstances as a whole (IHO Decision, pp. 17-18).
On appeal, petitioner asserts that the impartial hearing officer demonstrated bias, that the SBST meeting of May 25, 2005 did not include proper members, and that petitioner was not properly treated as a CSE participant. She also asserts that she lacks information regarding the type of medical documentation respondent's CSE requires, that she timely voided the resolution agreement, and that the impartial hearing officer erred by denying petitioner's son extra counseling. For relief, petitioner requests an award of compensatory services in the areas of occupational therapy, speech-language therapy, and counseling; information be provided from respondent pertaining to what information is required to support a classification that will reflect the child's health needs, as well as information as to what is required by respondent to provide a basis for a truncated school day or health paraprofessional; and reimbursement for travel expenses.
As a preliminary matter, I note that the impartial hearing occurred after the United States Supreme Court issued its Schaffer v. Weast decision in which the Court held that the "[t]he burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief." (Schaffer, 126 S.Ct. 528, 537 ). Accordingly, petitioner, as the party seeking relief, has the burden of persuasion to demonstrate that respondent failed to offer the student a FAPE.
A purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487)2 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]; Schaffer v. Weast, 126 S. Ct. 528 ). 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[D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).3 The student'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]).
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 ). 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).
Petitioner asserts that the impartial hearing officer was biased toward respondent and adversarial toward petitioner. An impartial hearing officer must be fair and impartial and must avoid even the appearance of impropriety or prejudice (see Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 04-010; Application of a Child with a Disability, Appeal No. 03-071), and must render a decision based on the record (see Application of a Child with a Disability, Appeal No. 00-063; Application of a Child Suspected of Having a Disability, Appeal No. 00-036; Application of a Child with a Disability, Appeal No. 98-55). A hearing officer, like a judge, must be patient, dignified and courteous in dealings with litigants and others with whom the hearing officer interacts in an official capacity and must perform all duties without bias or prejudice against or in favor of any person, and shall not, by words or conduct, manifest bias or prejudice, according each party the right to be heard (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child Suspected of Having a Disability, Appeal No. 01-021; Application of a Child with a Handicapping Condition, Appeal No. 91-40; see 8 NYCRR 200.1 [x]; see also 22 NYCRR 100.3[B]; see also New York State Unified Court System Standards of Civility, 22 NYCRR Part 1200, Appendix A ). At all stages of the hearing, a hearing officer may assist an unrepresented party by providing information relating only to the hearing process (8 NYCRR 200.5[j][vii]). State regulations do not impair or limit the authority of an impartial hearing officer to ask questions of counsel or witnesses for the purpose of clarification or completeness of the record (8 NYCRR 200.5[j][vii]).
Upon careful review of the hearing record, I find that there is no evidence that the impartial hearing officer acted with bias against petitioner. Petitioner proceeded pro se (Tr. pp. 4, 14, 64-65). During the impartial hearing, petitioner made many inquiries of the impartial hearing officer (Tr. pp. 13-14, 64-65, 106, 154). The hearing record reveals that the impartial hearing officer attempted to provide clarification for the parties of the hearing process and the issues in dispute (Tr. pp. 4-5, 60-61, 65, 68, 149, 150, 154, 157-58, 162). The transcript demonstrates the impartial hearing officer made efforts to maintain decorum and move the impartial hearing forward, while ensuring each party the right to be heard in an orderly manner (Tr. pp. 103-04, 147, 157). Under sometimes challenging conditions (Tr. pp. 64-71), the impartial hearing officer was courteous, and did not manifest bias or prejudice, either by words or by conduct. I find petitioner's assertion to be without merit.
Petitioner asserts that she voided the resolution agreement at issue in a timely manner. I have reviewed the record and find that petitioner did void the agreement within three business days of the execution of the agreement (see 8 NYCRR 200. 5[j][iv]). The resolution session took place on November 28, 2005 and petitioner participated by telephone (Dist. Ex. 15 at p. 2). Although respondent's documentary evidence includes a resolution agreement allegedly signed by petitioner on November 28, 2005, petitioner denies signing the document on that date (Dist. Ex. 12 at p. 2; Pet. ¶ 5). In addition, the document relied on is not consistent with other documents made available. Attached to the petition for review is a letter dated December 1, 2005 from respondent's designee to petitioner, which states that respondent had been unsuccessful in its attempts to reach petitioner on November 28, November 29, and December 1, 2005 (Pet. Ex. A at p. 6).4 The letter indicates that the Interim Service Plan requested by petitioner and the resolution agreement were ready for petitioner's review, consent, and signature (id.). In her letter, respondent's designee states, "As soon as we have those documents we can proceed in getting . . .[the child] the additional services which you requested and to which we agreed at the Resolution meeting on 11/28/05. I'm sending these documents by Certified mail. Please sign and return them by fax or mail" (id.). This letter is strong evidence that the document that was purportedly signed by petitioner on November 28, 2005 (Dist. Ex. 12 at p. 2) is likely to be inaccurate. Also attached to the petition is a copy of the resolution agreement signed and dated by petitioner on December 7, 2005 (Pet. Ex. A at pp. 4-5).
The terms of the resolution agreement stated that either party may void the agreement provided that voiding the agreement be in writing, forwarded to the CSE representative or parent, and postmarked within three business days of the date of execution of the resolution agreement (Dist. Ex. 12 at p. 2). The record includes a copy of petitioner's letter to respondent, dated December 12, 2005, voiding the resolution agreement (Dist. Ex. 18). Because December 12, 2005 date is the third business day subsequent to the December 7, 2005 date of execution of the resolution agreement (see 8 NYCRR 200.5[j][iv]), I find that petitioner properly voided the resolution agreement. Despite the unsuccessful resolution session, respondent continued to offer the enhanced related services and the change in classification reflected in the IEP developed subsequent to the resolution session.
Petitioner seeks a dual classification for her son as a student with speech or language impairment and as a student having an other health-impairment. Respondent asserts that there is no evidence in the record to support the child's classification as a student with an other health- impairment. At the hearing petitioner submitted a pediatric report dated December 29, 2005 (Tr. pp. 239-45, Parent Ex. G). While it referenced the child's dietary restrictions and allergies, the pediatric report did not provide data that would support the child's classification as a student with an other health-impairment (Parent Ex. G). Neither the impartial hearing officer nor respondent erred, given the evidence in this case, in determining that respondent did not have sufficient evaluative data before it to identify petitioner's son as a student with an other health-impairment. Petitioner also asserts that respondent was not forthcoming regarding the type of medical documentation its CSE required. I note that respondent's designee and the impartial hearing officer discussed during the impartial hearing the type of medical documentation that the CSE would consider in its review of the child's classification (Tr. pp. 22, 25-26, 30-33, 101-02, 105, 109, 195-96, 204, 236). I would encourage petitioner, that if she requires further information, that she raise her concerns directly with respondent's staff.
Petitioner also alleges that the impartial hearing officer erred by not ordering that additional counseling services be provided. In order to make an appropriate recommendation, it is necessary to have appropriate evaluative information (Application of a Child with a Disability, Appeal No. 02-114; Application of a Child with a Disability, Appeal No. 02-100; Application of a Child with a Disability, Appeal No. 02-044). Respondent sought to conduct a full psychoeducational evaluation of the student of petitioner's son (Tr. pp. 24, 92-93, 187). However, petitioner did not provide respondent with consent (Tr. pp. 177-78). Petitioner would not agree to respondent's completion of a psychoeducational evaluation because she considered it to be a "conflict of interest" (Tr. p. 96). Petitioner also testified that respondent was already in possession of information sufficient to make an assessment and recommendation, and had done so (Tr. p. 104). Based on the lack of evaluative information available in the record suggesting that additional counseling services were needed or were appropriate, I find that the impartial hearing officer did not err by upholding the CSE's determination regarding additional counseling services for petitioner's son.
Petitioner also seeks compensatory services in the areas of occupational therapy and speech-language therapy. State Review Officers have awarded equitable relief in the form of
additional educational 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. 02-042; Application of a Child with a Disability, Appeal No. 02-030). In general, the award of additional educational services, for a student who is still eligible for instruction, requires a finding that the student has been denied a FAPE (Application of the Bd. of Educ., Appeal No. 04-085; Application of the Bd. of Educ., Appeal No. 02-047). Here there is insufficient evidence in the record to demonstrate that petitioner's son was not offered a FAPE. I will however encourage respondent's CSE at the next meeting for petitioner's son to provide for any missed therapy sessions identified by petitioner.
With respect to petitioner's assertion that, with the exception of placement, neither petitioner nor her husband were treated as part of the CSE regarding formulation of their son's IEP goals, classification, and support needs, this issue was not raised during the impartial hearing in regard to either the June 10 or November 28, 2005 CSE meetings. I find that this issue is beyond the scope of my review because it was not raised below (Application of a Child with a Disability, Appeal No. 05-080; Application of a Child with a Disability, Appeal No. 04-043; Application of a Child with a Disability, Appeal No. 04-019; Application of the Bd. of Educ., Appeal No. 02-024). I also note that the hearing record suggests that respondent had been responsive to input from petitioner and solicited her participation in the formulation of her son's IEP.
Similarly, petitioner's request for a "health" paraprofessional or a truncated school day for her son for the 2006-07 school year is not within the scope of my review. The record indicates that the focus of the impartial hearing was the 2005-06 school year (Tr. pp. 73, 111, 112-13, 122, 153, 165-66, 255-56). As the 2006-07 school year was not addressed during the impartial hearing, it is also not before me in this proceeding. I suggest here also, that if petitioner seeks further information pertaining to whether a health paraprofessional is an appropriate service for her son, that she work with the CSE and or respondent's staff to secure that information. Finally, I agree with the impartial hearing officer and I find that petitioner has not supported or provided documentation for her request for reimbursement for travel expenses associated with the provision of related services.
I have considered petitioner's remaining contentions and I find them to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED, that the impartial hearing officer's decision is annulled to the extent that it found the resolution agreement enforceable; and
Albany, New York
June 21, 2006
PAUL F. KELLY
1 I support the parties attempt to resolve their differences by mediation and I strongly support voluntary resolution of disputes by mutual agreement. However, respondent's submission of written notes ("memo on mediation") as an exhibit pertaining to the substance of the October 31, 2005 mediation discussions (Dist. Ex. 19), and the impartial hearing officer's acceptance of such evidence, runs counter to the provisions of the IDEA and federal and State regulations (20 U.S.C. § 1415[e][G]; 34 C.F.R. § 300.506[b]; 8 NYCRR 200.5 [h][v]). The Regulations of the Commissioner of Education provide that "discussions that occur during the mediation process must be confidential and may not be used as evidence in any subsequent due process hearings" (8 NYCRR 200.5[h][v]). While I find the entry of the exhibit into the record to be improper, I find that the information contained therein is not dispositive of, nor provides a basis for, the determination of any material issue in dispute.
2 On December 3, 2004, Congress amended the Individuals with Disabilities Education Act, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647). As the relevant events in the instant appeal took place after the effective date of the 2004 amendments, the provisions of the IDEA 2004 apply and the citations contained in this decision are to the newly amended statute.
3 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; see also 34 C.F.R. § 300.13; 20 U.S.C. § 1414[d].
4 Generally, documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Child with a Disability, Appeal No. 05-080; Application of a Child with a Disability, Appeal No. 05-068; Application of the Bd. of Educ., Appeal No. 04-068). It appears that petitioner's documentary evidence could have been offered for admission into the hearing record, however, respondent has not objected to petitioner's submission of additional documentary information on appeal. In the absence of an objection, and taking into consideration that petitioner is proceeding pro se, I have considered the additional documents that were not submitted at the time of the impartial hearing.