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

No. 06-051

 

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 Lawrence Union Free School District

 

Appearances:
Educational Advocacy Service, attorney for petitioners, Anton Papakhin, Esq., of counsel

Ehrlich, Frazer & Feldman, attorney for respondent, Timothy M. Mahoney, Esq., of counsel

DECISION

            Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their son's tuition costs at Kulanu Torah Academy (Kulanu) for the 2005-06 school year.  Respondent cross-appeals from that portion of the impartial hearing officer's decision which found that it failed to offer an appropriate educational program to petitioners' son for the 2005-06 school year.  The appeal must be dismissed.  The cross-appeal must be sustained.

            At the commencement of the impartial hearing in November 2005, petitioners' son was 13 years old (Tr. p. 189) and attending eighth grade at Kulanu.  Kulanu is a private special education school that is located within a private general education school (Tr. pp. 409-10), the Hebrew Academy of the Five Towns and Rockaway (HAFTR) (Tr. pp. 608, 688, 1056).  Kulanu has not been approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities (Tr. p. 607; see 8 NYCRR 200.7, 200.1[d]).  Petitioners' son has difficulty with distractibility, impulsivity, and anxiety, and has a history of oppositional behaviors at home and at school (Dist. Ex. 4 at p. 3).  The student's eligibility for special education programs and services is not in dispute on appeal, however, the student's classification as a student with an emotional disturbance (ED) is a matter of contention (see 8 NYCRR 200.1[zz][4]).

            Petitioners' son attended the Hebrew Academy of Long Beach (HALB) from preschool through fifth grade (Dist. Ex. 2 at p. 1).  The student was initially referred by his parents to respondent's Committee on Special Education (CSE) in November of 1998, when he was in first grade, due to concerns regarding slow sound-symbol development and uneven academic work (id.).  A psychological evaluation was conducted by respondent's school psychologist while the student was in the first grade (Dist. Ex. 1).  Administration of the Wechsler Intelligence Scales for Children-Third Edition (WISC-III) yielded a verbal IQ score (and percentile) of 107 (68), a performance IQ score of 120 (91), and a full scale IQ score of 114 (82) (Dist. Ex. 1 at p. 1), placing the student in the high average range of overall cognitive ability (Dist. Ex. 2 at p. 1).  Respondent's school psychologist noted that one of the student's teacher indicated that the student was "defiant, aggressive and initiated frequent altercations with other children," but when a behavior modification program had been instituted in the classroom, many of the student's problematic behaviors within the classroom were extinguished (Dist. Ex. 1 at p. 3).  Further, the school psychologist noted that the student initiated many defiant behaviors throughout his assessment, such as refusing items and whole sections of the assessment (id.).  The school psychologist described the student as a "defiant young boy who show[ed] some good promise when exposed to a structured behavioral management plan" and recommended continuing the use of a "behavioral management system" to help the student manage his behavior in the classroom (id.).

            The CSE reportedly classified petitioners' son as a student with a learning disability (LD) and provided him with resource room services from February 1999 to June 2000 (Dist. Ex. 2 at p. 1).  The student was reportedly declassified some time after second grade because he had made progress with the support respondent provided (id.).

            The student's mother testified that her son was "doing great" in third grade (Tr. p. 340), but began to "decompensate" in fourth grade (Tr. p. 343).  Petitioners applied to the Summit School (Summit) in February 2003, which was the middle of the student's fifth grade year (Tr. pp. 364-65).  Summit is a private school that has been approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities (see Tr. p. 318).  The student's mother requested that respondent evaluate the student again when the student was in the fifth grade and a psychological evaluation was conducted March 20, 2003 because petitioners were concerned that their son's behavioral and emotional difficulties were affecting his learning (Dist. Ex. 2 at p. 1).  The school psychologist noted that the student had been diagnosed with obsessive-compulsive disorder (OCD), an attention deficit hyperactivity disorder (ADHD), and Tourette's syndrome by a private psychologist who was the director of the Bio-Behavioral Institute, and that he had been prescribed medication for these diagnoses (Dist. Ex. 2 at p. 2).  At the time of the psychological evaluation in March 2003, the student had been seeing a private therapist at the Bio-Behavioral Institute weekly for two years (Dist. Ex. 2 at p. 2; see Tr. pp. 342-43).  A February 2003 note from the Bio-Behavioral Institute reported that the student had a low frustration tolerance, difficulty with anger management, hyperactivity, impulsivity, and compulsive behaviors that affected his ability to succeed in his current academic environment (Dist. Ex. 2 at p. 2).  The student's fifth-grade secular studies teacher reported that the student sought attention, was confrontational, often annoyed others in class, completed little of his academic responsibilities due to his behavior, and was especially reluctant to learn math (id.).  Results of administration of the Behavior Assessment System for Children - Self Report Scale (BASC-SRS) indicated that the student's overall emotional adjustment ranged from fair to poor, depending largely on contextual demands concurrent with the availability of directive supports (Dist. Ex. 2 at p. 3).  The school psychologist noted the student had "several clinically significant areas of concern, as well as at-risk areas of concern in relation to school," including his attitude toward school, attitude toward teachers, and depression (id.).  Areas identified by the BASC-SRS as clinically significant included self-esteem, self-reliance, personal adjustment and relations with parents (Dist. Ex. 2 at p. 8).

            An educational evaluation was performed on April 1, 2003 (Dist. Ex. 11).  The evaluator noted that the student was often non-compliant and oppositional during testing and that the student's "mood swings" and non-compliant behaviors compromised optimal testing conditions (Dist. Ex. 11 at p. 2).  The evaluator recommended that the student participate in a highly structured environment that is nurturing and understanding of his difficulties due to his high level of anxiety and poor coping skills (Dist. Ex. 11 at p. 3).

            Petitioners unilaterally enrolled their son at Summit in April or May 2003 (Tr. p. 368).  Medications were reportedly changed during this time period because the student was having a serious adverse reaction to his medication (id.).  Although the student was noted to have had a difficult transition to Summit in the latter part of his fifth-grade year (Tr. p. 369), the student's mother described his sixth-grade year at Summit as being "a good year for him" (Tr. p. 370).  The student's mother also indicated that her son had not been able to do his homework at home since the fourth grade (Tr. p. 373).  Summit progress report notes from January 2004 indicate that the student was becoming "less school avoidant," he was participating much more and he was becoming more successful academically and with personal relationships (Dist. Ex. 3 at p. 3).  According to January 2004 progress notes, Summit's school social worker recommended that the student remain at Summit and noted that any interruption in services would result in academic, emotional and social regression (id.).

            On March 22, 2004, a CSE subcommittee met and recommended that the student be classified as a student with ED and that he attend seventh grade in a 12:1+2 special class at Summit for the 2004-05 school year (Parent Ex. A at p. 1).  In addition, the subcommittee recommended that the student receive 30 minutes of individual counseling once a week and 30 minutes of group counseling once a week (id.).

            A classroom observation was conducted on April 19, 2005 (Dist. Ex. 5).  The school psychologist performing the classroom evaluation noted that the student appeared to perform well with large amounts of structure built into his day (id.).  Staff indicated that, although the student presented with oppositional behaviors when he first entered the school, he was now "happy and well-adjusted" (id.).

            An occupational therapy (OT) evaluation performed on June 6, 2005 (Tr. p. 144; see Dist. Ex. 12) identified severe handwriting difficulties (Dist. Ex. 12 at p. 1), including poor pencil grip (Dist. Ex. 12 at p. 2).  The evaluator noted that the student's poor writing positioning and indicated it was a struggle for the student to write (id.).  The evaluator recommended that the student receive OT consultation services once a month for six sessions during the 2005-06 school year (id.).

            On June 16, 2005, a CSE subcommittee met to develop the student's individualized education program (IEP) for the 2005-06 school year (Dist. Ex. 5 at p. 1).  Comment notes from the subcommittee meeting indicated that the student's mother reported that doing any homework at home was still stressful to the student, but she felt that he was not being pushed enough academically and that he was doing well in school because he was not being challenged (Dist. Ex. 6 at p. 5).  She requested that his homework be increased (id.).  Further, the student's mother informed the subcommittee that she had spoken to staff at Kulanu and that she wanted to send her son there (Dist. Ex. 6 at p. 6).  The CSE subcommittee determined that the student should remain classified as a student with ED and recommended that, for eighth grade during the 2005-06 school year, he be placed in a 9:1+2 self-contained Developing Students Abilities (DSA) (Tr. p. 23) program at respondent's middle school that included special classes for Language Arts, Math, Science and Social Studies (Dist. Ex. 6 at pp. 1, 5).  In addition, the CSE subcommittee recommended that the student receive 30 minutes of individual OT consultation once a month, 30 minutes of individual counseling once a week, and 30 minutes of group counseling once a week (Dist. Ex. 6 at p. 1).  Adaptive Physical Education was also recommended (Dist. Ex. 6 at pp. 2-3).  Meeting notes indicate that Kulanu was discussed as an option (Dist Ex. 6 at p. 3), but staff at Summit agreed that the recommended DSA program would meet the student's needs (Dist. Ex. 6 at p. 6).

            Petitioners did not accept the CSE subcommittee's recommended educational program.  By letter dated August 18, 2005, petitioners informed respondent that the student would be enrolled at Kulanu for the 2005-06 school year and requested an impartial hearing for the purpose of obtaining tuition reimbursement for that school year (IHO Ex. 3 at pp. 1-2).  The impartial hearing commenced on November 1, 2005 and concluded on March 6, 2006, after eight days of testimony.  On April 17, 2006, the impartial hearing officer rendered his decision finding that respondent failed to offer a free appropriate public education (FAPE) to petitioners' son for the 2005-06 school year (IHO Decision, pp. 22-23).  The impartial hearing officer also found that the services selected by petitioners were not appropriate, and therefore, denied petitioners' request to be reimbursed for their son's tuition costs at Kulanu for the 2005-06 school year.

            Petitioners appeal from the impartial hearing officer's decision on several grounds.  They challenge the impartial hearing officer's impartiality. Petitioners also contend that the impartial hearing officer erred in determining that the student was properly classified as ED and assert that the student should have been classified as a student with an other health impairment (OHI) (see 8 NYCRR 200.1[10]).  In addition, petitioners' contend that the impartial hearing officer erred in determining that Kulanu was not an appropriate placement.  Respondent cross-appeals from that portion of the impartial hearing officer's decision which found that it failed to offer an appropriate educational program to petitioners' son for the 2005-06 school year.  Respondent contends on appeal that the impartial hearing officer erred in finding that the June 16, 2005 CSE subcommittee was improperly composed with respect to the regular education teacher member.  Respondent further contends in its cross-appeal that it offered the student a FAPE for the 2005-06 school year. Petitioners did not file an answer to the cross-appeal (see 8 NYCRR 279.4[b]).1

First I will address petitioners' claim concerning the impartiality of the hearing officer.  Petitioners challenge the impartial hearing officer's impartiality on the ground that he failed to disclose that he "practices as a school district attorney" and he failed to afford the parties an opportunity to question his impartiality.  State regulations provide that an impartial hearing officer shall not have a personal or professional interest which would conflict with his or her objectivity in the hearing (8 NYCRR 200.1[x][3]; see 20 U.S.C. § 1415[f][3][A][i][II][2004]; see also Application of the Bd. of Educ., Appeal No. 03-015; Application of a Child with a Disability, Appeal No. 01-046; see generally Application of the Bd. of Educ., Appeal No. 04-046).  Impartial hearing officers are required to disclose all potentially conflicting interests at the outset of the hearing, so that any question about their impartiality can be addressed, and an adequate record can be developed for subsequent review (Application of the Bd. of Educ., Appeal No. 03-015; Application of a Child with a Disability, Appeal No. 98-51; Application of a Child with a Handicapping Condition, Appeal No. 91-27).

            At the outset of the hearing, the impartial hearing officer stated "... I know of no reason why I can't render an impartial decision in this case" (Tr. p. 5).  I note that during this opening statement, the impartial hearing officer did not disclose the fact that he practices law representing other school districts; however, he did afford the parties an opportunity to question his impartiality (Tr. pp. 5-6).  Respondent has submitted an affidavit in support of its answer in response to petitioners' claim   In its affidavit, which was signed by counsel for respondent at the impartial hearing, respondent alleges that on or about December 8, 2005 an off-the-record conversation between respondent's counsel, the impartial hearing officer and petitioners' advocate at the impartial hearing occurred in which the impartial hearing officer discussed his role as an attorney representing school districts and specifically his role in a matter pending before the Second Circuit of United States Court of Appeals (Respondent's Aff. ¶ 3).2  Respondent contends that petitioners' advocate at the impartial hearing did not object to the impartial hearing officer either on or off the record after this conversation (Respondent's Aff. ¶¶ 4-5).  Although the impartial hearing officer should have disclosed on the record at the outset of the hearing that he practices as school district attorney, I find that his failure to do so under the circumstances of this case does not afford a sufficient basis for annulling his determination (Application of the Bd. of Educ., Appeal No. 03-015; Application of a Child with a Disability, Appeal No. 98-51; Application of a Child with a Disability, Appeal No. 97-96; Application of a Child with a Disability, Appeal No. 95-41). I have carefully reviewed the transcript and the impartial hearing officer's decision, and I find that there is no evidence of any actual bias against petitioners (Application of the Bd. of Educ., Appeal No. 03-015; Application of the Bd. of Educ., Appeal No. 01-043; Application of a Child with a Disability, Appeal No. 00-063; Application of a Child with a Disability, Appeal No. 98-73; Application of a Child with a Disability, Appeal No. 98-51). A thorough review of the record reveals that the impartial hearing officer was fair in his treatment of witnesses and unbiased in his rulings during the course of the impartial hearing (see Tr. pp. 338-39, 400, 406-07, 457, 466-67, 476, 533, 553-54, 735, 839-40).  Nevertheless, I am very troubled by the impartial hearing officer's failure to disclose, on the record, at the beginning of the hearing that he represents school districts in special education matters.  This was clearly a potential conflict of interest and the impartial hearing officer was required to disclose this information to the parties at the outset of the impartial hearing (Application of the Bd. of Educ., Appeal No. 03-015; Application of a Child with a Disability, Appeal No. 98-51; Application of a Child with a Handicapping Condition, Appeal No. 91-27).  I caution the impartial hearing officer that in the future he ensure that the record reflects that he fulfilled his obligation to fully disclose potentially conflicting interests.  But in the absence of actual bias, and taking into consideration evidence that his potential conflict was disclosed during off record conversations, I find that his failure to disclose does not afford a basis to annul his determination.

            Petitioners also contend that the impartial hearing officer erred in determining that the student was properly classified as ED and assert that their son should have been classified as OHI.  The impartial hearing officer found that the student's characteristics, as described by the witnesses who had observed him, were consistent with classification as a student with ED (IHO Decision, p. 20).  The impartial hearing officer found that petitioners' son has a tendency to develop physical symptoms or fears associated with personal or school problems, as manifested by his anxiety associated with homework and writing assignments, and that the student had significant difficulty in building and maintaining satisfactory personal relationships (IHO Decision, p. 20).  Further, the impartial hearing officer found no evidence in the record that petitioners requested that the CSE subcommittee change their son's classification from ED to OHI (Tr. pp. 147, 407).  After review of the record, I do not disturb the impartial hearing officer's determination regarding the student's classification as a student with ED, particularly in the absence of evidence that respondent's CSE was asked to consider petitioners' request that the student be classified as OHI. Given petitioners' concern however, I encourage both parties to address the issue of classification at a CSE meeting.

            I will now turn to respondent's cross-appeal from that portion of the impartial hearing officer's decision which found that it failed to offer an appropriate educational program to petitioners' son for the 2005-06 school year.

            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 (a) the board of education 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]).  The Second Circuit has determined that "a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression' and if the IEP affords the student with an opportunity greater than mere "trivial advancement" (Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 [2d Cir. 2005], quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]), in other words, likely to provide some "meaningful" benefit (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see also Viola v. Arlington Cent. Sch. Dist., 414 F. Supp. 2d 366, 381-82 [S.D.N.Y. 2006]).  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).  The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).  The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (Schaffer v. Weast, 126 S. Ct. 528, 537 [2005]).

A CSE subcommittee met on June 16, 2005 to formulate the student's 2005-06 IEP (Dist. Ex. 6 at pp. 1, 5).  Respondent contends that the impartial hearing officer erred in finding its June 16, 2005 CSE subcommittee was invalidly composed.  The impartial hearing officer was not persuaded by respondent's assertion that its DSA physical education teacher was appropriate as the regular education teacher member of the CSE subcommittee (IHO Decision, p. 22).  He found that a regular education teacher did not adequately participate with respect to the student's participation in the general curriculum at the subcommittee meeting (id.).  The impartial hearing officer found that the lack of a regular education teacher participation at the student's subcommittee meeting compromised the development of an appropriate IEP and denied the student a FAPE for the 2005-06 school year (IHO Decision, p. 23).

            New York State law requires that the CSE subcommittee include "one regular education teacher of the student whenever the student is or may be participating in the regular education environment" (N.Y. Educ. Law § 4402[1][b][1][d]; see N.Y. Educ. Law § 4402[1][b][1][a][ii]; 8 NYCRR 200.3[c][2][ii]; see Application of a Child with a Disability, Appeal No. 05-095).  The regular education teacher of the student with a disability must, "to the extent appropriate, participate in the development, review and revision of the student's IEP, including assisting in the determination of (1) appropriate positive behavioral interventions and strategies for the student; and (2) supplementary aids and services, program modifications or supports for school personnel that will be provided for the student…" (8 NYCRR 200.3[d]).  In its official interpretation of the federal regulations (34 C.F.R. § 300.344[a][2]), the U.S. Department of Education explains that the regular education teacher member "should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 26).

            The U.S. Department of Education has explained that the purpose behind the regular education teacher requirement is for that teacher to serve a critical role in providing input on modifications and supplementary aids and services that would allow the child to remain in the regular education environment to the maximum extent appropriate (64 Fed. Reg. No. 48, at p. 12591).  State Review Officers have found that although a board of education cannot always be expected to know who the student's regular education teacher will be prior to the CSE meeting, it should nevertheless have sufficient information about the student to designate a regular education teacher who is not only appropriately certified to teach the student, but who is also teaching in the subject matter or grade level in one of the programs which might be appropriate for the student (Application of a Child with a Disability, Appeal No. 04-088; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-100, n.1; Application of a Child with a Disability, Appeal No. 02-080; Application of the Bd. of Educ., Appeal No. 02-056; Application of a Child with a Disability, Appeal No. 00-060).

            The student's mother, the CSE subcommittee chairperson, the school psychologist, the DSA special education teacher of the recommended placement from the district (Tr. p. 230), the district's health and physical education teacher of the recommended adaptive physical education program (Tr. p. 199), and the student's special education teacher from Summit attended the student's June 16, 2005 CSE subcommittee meeting (Dist. Ex. 6 at p. 5).  Also, Summit's school director, school social worker, and clinical director attended the student's June 16, 2005 CSE subcommittee meeting by telephone conference (id.).

            Respondent contends that it fulfilled its obligation to include a regular education teacher at the June 16, 2005 CSE subcommittee meeting by having as a member the health and physical education regular education teacher who teaches in the DSA program that was recommended for the student.    The health and physical education teacher that participated at the student's June 16, 2005 CSE subcommittee meeting (Dist. Ex. 6 at p. 5; Tr. pp. 203-04) testified that she teaches physical education for both regular education students and special education students  (Tr. p. 199).  At the time of the hearing she was teaching students in the DSA program on a daily basis (Tr. p. 199).  She testified that she meets with the children three days a week in a self-contained program working on the student's social, physical and emotional needs, and then does a "push-in" with the mainstream regular physical education class the other two days a week to provide social and emotional benefits and bring her students up to "peer level" (Tr. pp. 200, 209-211).  The teacher stated that as part of the "push-in" into the mainstream class she works with another physical education teacher in a "team teaching" manner (Tr. pp. 206-207).  She testified that the offered program would help address the student's physical needs (Tr. p. 208), social development needs (Tr. p.  204), anxiety (Tr. p. 205), and management needs (Tr. pp. 211-212).  She also testified that she facilitates DSA student participation with their regular education peers in after school activities including the track and field program (Tr. pp. 202-03).  In addition, she noted that at the CSE subcommittee meeting the committee members believed the DSA program to be "picture perfect" for the student and that the student would do "beautifully" in the program (Tr. p. 213).  She also stated that she did not recall the student's mother at the meeting speaking of the DSA program, she recalled her only speaking about the Kulanu program (Tr. p. 214).  Based upon the record before me and the particular circumstances presented herein, I find that a regular education teacher that would have been instructing the student if he had attended respondent's recommended program sufficiently participated at the June 16, 2005 CSE subcommittee, particularly given the input the teacher had pertaining to providing and developing mainstreaming opportunities (Application of a Child with a Disability, Appeal No. 02-100; Application of the Bd. of Educ., Appeal No. 99-38; Cf. Application of a Child with a Disability, Appeal No. 02-080).

            Petitioners also assert that their son should have been reevaluated in order to assess his potential for placement in the LRE.  A CSE must arrange for an appropriate reevaluation of each student with a disability if conditions warrant a reevaluation, or if the student, parent, or teacher requests a reevaluation, but at least once every three years (34 C.F.R 300.536[b]; 8 NYCRR 200.4[b][4]).  A CSE must have adequate and timely evaluative data to prepare an appropriate IEP for a child (Application of the Bd. of Educ., Appeal No. 99-94; Application of a Child with a Disability, Appeal No. 99-05; see Application of a Child with a Handicapping Condition, Appeal No. 91-25).  The record indicates that the student was due for reevaluation in April 2006 (Tr. pp. 136-37).  Further, petitioners did not request a reevaluation until after the impartial hearing request was filed (see Tr. p. 398).  Under the circumstances, respondent was not obligated to conduct a reevaluation of the student prior to the CSE subcommittee meeting.  Contrary to petitioners' claim, the evaluations that the CSE subcommittee relied upon as a basis for its recommendations were sufficient to develop the student's IEP.  In developing the student's June 16, 2005 IEP, the CSE subcommittee utilized existing evaluations, including a classroom observation of the student at Summit on April 19, 2005 conducted by respondent's school psychologist (Dist. Ex. 6 at p. 6).  The school psychologist noted in the classroom observation report that the student appeared to perform well "with large amounts of structure built into his day" (Dist. Ex. 5).  In addition, the student's June 16, 2005 IEP was also based upon a January 2, 2005 counseling progress summary, a January 2, 2005 behavioral intervention plan (BIP), and a June 6, 2005 OT evaluation (Dist. Ex. 6 at p. 6).

            The CSE subcommittee also relied on input from Summit staff (Dist. Ex. 6 at pp. 5, 7-12).  Summit's social worker who participated at the June 16, 2005 CSE subcommittee meeting via telephone reported that the student had made progress and was more open to learning with an improved mood (Dist. Ex. 6 at p. 5).  The student was noted to have demonstrated progress during the 2004-05 school year where he was visibly less anxious, less withdrawn and demonstrated a more positive mood (Dist. Ex. 6 at p. 4).  However, it was also noted that the student continued to find work stressful, he would become overwhelmed and require a lot of "down time" to "gather his energy to complete his tasks" (id.).  The student's June 16, 2005 IEP reflects that the student needed to be able to develop and implement strategies to deal with his frustration (id.).  The social worker reported that student still required a structured setting with organizational and emotional support (Dist. Ex. 6 at p. 5).  It was noted that when the student would become stressed, he would become oppositional and anxious (id.).  The student's special education teacher from Summit indicated that, although the student was intelligent, he needed accommodations in order to be successful (id.).  The special education teacher also indicated that when the student would become overwhelmed he would put his head down on his desk (id.).  I find that the June 16, 2005 CSE subcommittee obtained evaluative data from a variety of sources sufficient to formulate the student's IEP for the 2005-06 school year.  Moreover, the record reflects that at the CSE subcommittee meeting respondent considered and agreed to perform a speech-language evaluation pursuant to petitioners' request.

              At the June 16, 2005 CSE subcommittee meeting, the student's mother indicated that she felt that Summit was not "pushing" her son enough academically (Dist. Ex. 6 at p. 5; Tr. pp. 143, 390).  The student's mother testified that her son had not done homework since fourth grade; that it was not the work itself, but doing homework at home created anxiety for the student (Tr. p. 373).  The student's mother testified that she never meant for Summit to be the place where he would spend the rest of his years in school and that she wanted her son to learn to do his homework so he could "go back to a mainstream school" (Tr. p. 374).  Summit staff did not agree with the student's mother's opinion about the student not being challenged at school, and reported that the student was working at or above grade level academically (Dist. Ex. 6 at p. 5).

The CSE subcommittee recommended that, for eighth grade during the 2005-06 school year, the student attend the 9:1+2 self-contained DSA program (Tr. p. 23) at respondent's middle school that included special classes for Language Arts, Math, Science and Social Studies (Dist. Ex. 6 at pp. 1, 5).  In addition, the CSE subcommittee recommended that the student receive 30 minutes of individual OT consultation once a month, 30 minutes of individual counseling once a week, and 30 minutes of group counseling once a week (Dist. Ex. 6 at p. 1).  Physical Education was recommended to be an adaptive program (Dist. Ex. 6 at pp. 2-3).

            The goals and objectives on the student's June 16, 2005 IEP address the student's social and emotional needs by assisting him to identify and discuss his difficulties in social situations and develop strategies to deal with his anxiety and frustration (Dist. Ex. 6 at pp. 9-11).  Objectives state that the student will identify and discuss anxiety, socially acceptable affect and mood in social situations and will demonstrate the ability to reduce irrational thinking and cognitive distortions of events that occur during the school day (Dist. Ex. 6 at pp. 9-10).  The student's June 16, 2005 IEP also addresses improving his social skills and behavior with objectives for initiating social interaction with peers and adults, discussing methods for coping with difficult situations and seeking assistance in stressful situations (Dist. Ex. 6 at pp. 10-11).

The record indicates that the student has significant social and emotional needs that are addressed by his June 16, 2005 IEP (Dist. Ex. 6 at pp. 9-10) and that the goal of the recommended DSA program is to have students mainstreamed for all subjects, but this is taken one step at a time (Tr. p. 248) and that DSA students are evaluated on a regular basis for the purpose of increasing mainstreaming opportunities (Tr. p. 565).  Although the June 16, 2005 IEP indicates that the recommended program would offer an opportunity for the student to be with nondisabled peers (Dist. Ex. 6 at p. 12), the CSE did not recommend that petitioners' son be fully mainstreamed (Dist. Ex 6 at pp. 2-3).  To prepare him for functioning in the least restrictive setting, the IEP includes an objective addressing the student's need to transition from Summit to the DSA program, with additional objectives addressing his transition from one class to another and to various locations in the school building (Dist. Ex. 6 at p. 8).  The IEP also indicates that Team meetings would be held monthly to review information about the student's strengths and weaknesses (Dist. Ex. at p. 2), which would have allowed for discussions about mainstreaming as the student progressed.

            The student's June 16, 2005 IEP also addresses the student's needs by including goals and objectives to improve his organization and study skills and his ability to develop and use learning strategies, goals and objectives to improve his math and written language skills, and goals to improve his handwriting, as well as computer skills to improve his ability to function in an academic setting, and an adapted physical education goal with objectives to improve his strength and endurance (Dist. Ex. 6 at pp. 7-12).

            The student's mother testified that her son does not transition well (Tr. p. 635) and that she did not believe that her son was ready to be completely mainstreamed at the time of the June 16, 2005 CSE subcommittee meeting (Tr. p. 617).  The student's mother testified that her son needed to be mainstreamed for socialization purposes (Tr. p. 634).  Respondent's school psychologist testified that the program recommended by the CSE subcommittee in the student's June 16, 2005 IEP was designed to assist the student with the transition back into the local district from Summit (see Tr. p. 56).  The school psychologist explained in testimony that at the CSE subcommittee meeting he had commented that it was "common practice" to have very regular and frequent discussions as to how to move children toward mainstreaming at a rate that was not emotionally traumatic for the student because the goal of the DSA program is not to keep the children in the program. (Tr. p. 56).

            Respondent's special education teacher that teaches the recommended DSA program at respondent's middle school (Tr. p. 230) testified that the DSA program was a class for students who have grade-level academic abilities, but require social and emotional support (Tr. p. 233).  She testified that students can be mainstreamed for any subject and that technology class is a mainstream class for all of the students in the DSA program (Tr. pp. 235-36).  The special education teacher also testified that the students in the DSA program choose to sit as a group in the lunchroom, but they are a part of a larger group of students where there are more mainstreaming opportunities available (Tr. p. 240).  She further testified that the goal of the recommended DSA program is to have students mainstreamed for all subjects, but this is taken one step at a time (Tr. p. 248).  The special education teacher of the recommended DSA program testified that petitioners' son would have the opportunity to be mainstreamed in academic subjects, and that his social, emotional, and academic needs could be met within the recommended program (Tr. p. 264).  I find the program recommended in the student's June 16, 2005 IEP was reasonably calculated to enable the student to receive educational benefit and petitioners' son was offered a FAPE for the 2005-06 school year in the LRE.

            Having determined that the challenged IEP adequately offered a FAPE to petitioners' son for the 2005-06 school year, I need not reach the issue of whether or not Kulanu was appropriate; petitioners are not entitled to reimbursement, and the necessary inquiry is at an end (Voluntown, 226 F.3d at 66; Walczak, 142 F.3d at 134; Application of a Child with a Disability, Appeal No. 05-038; Application of a Child with a Disability, Appeal No. 03-058).

            Finally, petitioners contend that the impartial hearing officer failed to conduct a careful and meaningful review of the record in rendering his decision.  Petitioners assert allegations that I find are not supported by the record.  For example, petitioners assert that the DSA program staff was not trained to work with students with emotional difficulties.  However, the CSE subcommittee chairperson (Tr. p. 129) testified that a teacher in the DSA program is specially trained to work with students who have emotional difficulties and that she makes the class "therapeutic" by the strategies and materials that she uses (Tr. p. 151).  In addition, petitioners assert that the CSE subcommittee "did not even discuss or consider the possibility of educating [the student] with non-disabled students with the necessary support and services."  However, the June 16, 2005 CSE subcommittee minutes indicate that the DSA program was described in detail (Dist. Ex. 6 at p. 5) and the CSE subcommittee chairperson testified that once DSA program staff would see that a student was doing well in the program, that student would be recommended for mainstreaming (Tr. pp. 149-150).  As to petitioners' contention that the impartial hearing officer failed to reference certain testimony, I find that failure to do so in the instant case does not afford a basis for annulling the impartial hearing officer's decision.  Petitioners also contend that the impartial hearing officer failed to attach to his decision a hearing exhibit list as required by state regulations (see 8 NYCRR 200.5[j][5][v]).  Petitioners further contend that the impartial hearing officer's failure to include a list of evidence resulted in an erroneous decision that was not based on the entire record.  State regulation provides that "[t]he impartial hearing officer shall attach to the decision a list identifying each exhibit admitted into evidence. Such list shall identify each exhibit by date, number of pages and exhibit number or letter" (8 NYCRR 200.5[j][5][v]).  The impartial hearing officer did not attach an exhibit list to his decision; however, petitioners provide no factual basis to support their contention that the failure to include a list of evidence to the decision resulted in an erroneous decision.  I conclude that the impartial hearing officer's failure to attach the exhibit list to the decision does not afford a basis for annulling the decision.  I do, however, caution the impartial hearing officer to ensure compliance with this regulation in the future.

            In light of my determination, I need not consider petitioners' or respondent's other challenges to the impartial hearing officer's decision.

            THE APPEAL IS DISMISSED.

            THE CROSS-APPEAL IS SUSTAINED.

            IT IS ORDERED that the impartial hearing officer's decision is annulled to the extent that it found that respondent failed to offer an appropriate educational program to petitioners' son for the 2005-06 school year.

 

Dated:                    Albany, New York                                                                    __________________________

                                July 24, 2006                                                                                    PAUL F. KELLY
                                                                                                                                  STATE REVIEW OFFICER

  

1  The impartial hearing officer also found the student's program and placement  should have been reviewed by a full CSE, not a subcommittee but found that the failure to do so did not result in a denial of a free appropriate public education (IHO Decision, p. 21; see 8 NYCRR 200.3[c][4]). Neither petitioner nor respondent appealed this determination, hence that determination is final and binding upon the parties (see Application of the Bd. of Educ., Appeal No. 05-007; Application of the Bd. of Educ., Appeal No. 03-110; Application of a Child with a Disability, Appeal No. 98-53; 34 C.F.R. § 300.510[a]; 8 NYCRR 200.5[i][4][v]). 

Petitioners filed no reply to respondent's answer or answer to respondent's cross-appeal objecting to the submission of the affidavit or its accuracy. I have therefore exercised my discretion and considered the document (see Application of a Child with a Disability, Appeal No. 06-039).

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 [2004], 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 pertaining to development of the child's program 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 impartial hearing took place after the effective date of IDEA 2004, therefore provisions that relate to due process proceedings do apply and will be noted when applicable.

4 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).