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The State Education Department
State Review Officer

No. 06-115

 

 

 

 

 

Application of the BOARD OF EDUCATION OF THE EAST ISLIP UNION FREE SCHOOL DISTRICT, for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

 

 

Appearances:

Goldstein, Ackerhalt and Pletcher, LLP, attorney for petitioner, Arthur H. Ackerhalt and Jay C. Pletcher, Esqs., of counsel

 

Ellen T. Maisto, Esq., attorney for respondent

 

 

DECISION

Petitioner, the Board of Education of the East Islip Union Free School District, appeals from the portion of a decision of an impartial hearing officer that found that the educational program recommended by its Committee on Special Education (CSE) for respondent's daughter for the 2005-06 and 2006-07 school years was inappropriate.  The appeal must be sustained. 

 

Both parties have attached additional evidence to their pleadings.  Petitioner has attached two documents to its petition not introduced into evidence at the impartial hearing: 1) a letter from the impartial hearing officer to petitioner's counsel dated September 12, 2006, which indicates that her decision in the above-referenced matter was mailed to the parties on August 25, 2006; and 2) an acceptance letter from the Admissions Administrator at the Anderson School (Anderson) to the CSE Chairperson dated August 30, 2006.  In addition, respondent has attached to the answer the following documents not introduced into evidence at the impartial hearing: 1) a copy of an e-mail from the impartial hearing officer to the parties dated August 25, 2006 indicating that her decision and exhibit list were delivered to the parties on that date by electronic mail with a hard copy to follow; 2) progress notes regarding the child from North Shore University Hospital for the period of December 19, 2005 to March 9, 2006; 3) respondent's written request to the Director of Special Education, dated June 1, 2006, seeking permission for her expert from the Fay J. Lindner Center for Autism and Developmental Disorders (Lindner Center) to observe the Premm Learning Center (Premm); 4) respondent's written request to the principal of Premm dated June 1, 2006, which seeks permission for her expert from the Lindner Center to visit the program; 5) the Director of Special Education's June 2, 2006 response to respondent denying her request to grant access to respondent's expert from the Lindner Center to observe Premm; 6) counsel for respondent's memorandum of law regarding the issue of whether respondent's expert from the Lindner Center should be permitted to observe Premm; 7) the impartial hearing officer's June 26, 2006 interim order granting permission to respondent's expert from the Lindner Center to observe Premm; 8) a letter from the impartial hearing officer to the parties dated July 23, 2006 ordering respondent to remit payment to the Lindner Center for its evaluation of Premm; and 9) the August 15, 2006 evaluation report from the Lindner Center regarding its observation of Premm.  Generally, documentary evidence not presented at an impartial 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 impartial hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Child with a Disability, Appeal No. 06-046; 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).  Petitioner objects to the additional evidence submitted by respondent.  Respondent did not object to the additional evidence offered by petitioner.  With respect to the additional evidence submitted by the parties, I will accept the impartial hearing officer's September 12, 2006 letter to the parties because this document is necessary for a rendering of my decision with respect to the issue of timely service of the petition, as detailed below.  However, I decline to accept the remainder of the documents submitted by the parties, as they are not necessary for a rendering of my decision in this matter.

 

As an affirmative defense, respondent asserts that the petition for review was served in an untimely manner and must be dismissed.  A petition for review to the State Review Officer must comply with the timelines specified in section 279.2 of the Regulations of the Commissioner of Education (8 NYCRR 279.13).  A petition for review shall be served upon the respondent within 35 days from the date of the decision sought to be reviewed (8 NYCRR 279.2[b]).  If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 35-day period (id.).  A State Review Officer may excuse a failure to timely seek review within the time specified for good cause shown (8 NYCRR 279.13).  In the instant case, the impartial hearing officer mailed her decision to the parties on August 25, 2006 (Pet. Ex. A).  The record reflects that petitioner served the petition for review on October 3, 2006 in compliance with the timelines specified in section 279.2 of the Regulations of the Commissioner of Education (8 NYCRR 279.13).  In light of the foregoing, I decline to dismiss the petition on this basis.

 

Next, respondent asserts that numerous allegations in the petition for review contain multiple allegations, and therefore, are improper in form and should be stricken (Answer ¶¶ 10, 11).  Despite respondent's contention, I find that the petition for review complies with the form requirements as set forth in the Part 279 regulations.  Accordingly, I decline to strike any portion of the petition. 

 

At the time of the impartial hearing during the summer of 2006, the child was nine years old and had been receiving home instruction since March 2006 (Dist. Exs. 4, 11).  Pursuant to an interim order of the impartial hearing officer, she continues to receive 15 hours of home instruction per week in addition to speech-language therapy and occupational therapy (IHO Ex. vii).1  Prior to her removal to home instruction, the child was attending third grade in petitioner's district in an 8:1+2 class and was receiving individual speech-language therapy three times per week and in a group on a weekly basis, in addition to individual occupational therapy two times per week (Dist. Ex. 12).  She has been diagnosed with autism and Down syndrome (Tr. p. 440; Parent Ex. E at p. 6).  Her eligibility for special education and related services and classification as a child with multiple disabilities are not in dispute in this proceeding (8 NYCRR 200.1[zz][8]).

 

In 2002, the child began attending kindergarten in petitioner's district (Tr. pp. 442-43).  In June 2003, when the child was six years old, petitioner's school psychologist evaluated the child (Dist. Ex. 6).  Administration of the Stanford-Binet Intelligence Scale - Fourth Edition was attempted but discontinued because the child was unable to perform tasks required (Dist. Ex. 6 at p. 2).  The child's performance on the Bayley Scales of Infant Development - Second Edition yielded a mental development index of less than 50 (significantly below average) and her performance on the Beery-Butenika Developmental Test of Visual-Motor Integration yielded a standard score of 46, which was below the first percentile (Dist. Ex. 6 at p. 1).  Completion of the Vineland Adaptive Behavior Scales (Vineland) by the child's teacher yielded an adaptive behavior composite score of 58, which was below the first percentile (Dist. Ex. 6 at p. 2). 

 

In September 2003, respondent obtained a private developmental pediatric evaluation due to concerns in an increase in the child's aggressive and disruptive behaviors, which included scratching, kicking and hair-pulling, as well as poor frustration tolerance and mood lability (Parent Ex. E at p. 2; Tr. p. 440).  At the time of the evaluation, the child was classified as mentally retarded and enrolled in a first grade 8:1+2 self-contained special education class in petitioner's district (Parent Ex. E at p. 3).  The developmental pediatrician administered the Childhood Autism Rating Scale (CARS), which yielded a score of 38.5, placing the child in the severely autistic range, and reported that the child met the criteria for a diagnosis of autism/pervasive developmental disorder, not otherwise specified (PDD-NOS), co-morbid with Down syndrome (Parent Ex. E at p. 6; Tr. p. 440).  He recommended that the child be classified as autistic, enrolled in an extended school year program and that she continue to receive speech-language therapy, occupational therapy and physical therapy (Parent Ex. E at pp. 6-7).  The developmental pediatrician further noted that implementation of an applied behavioral analysis (ABA) program was essential in order to promote functional skills of engagement, eye contact and gesture language (Parent Ex. E at p. 7).  He also recommended that the child continue with a behavioral plan and that a functional behavioral analysis (FBA) be conducted, and suggested that staff receive training in behavior techniques (id.)  In addition, he suggested a consultation with a behavioral psychologist or functional behavioral expert in autistic behaviors (id.).  In his evaluation report, the developmental pediatrician also noted that the child did not demonstrate any eye contact or any gestural language other than pointing, and suggested ABA to promote eye contact and gestural language, the use of a picture exchange communication system (PECS) and an augmentative communication device (Parent Ex. E at pp. 6-7).

 

In December 2003, at the suggestion of the developmental pediatrician who had remarked upon the absence of IQ test results for the child, petitioner's school psychologist administered the Leiter International Scales of Intelligence - Revised (Leiter-R) (Parent Ex. E at p. 6; Dist. Ex. 5).  Results yielded a full IQ/composite score of 36 (below the first percentile), which was within the severely delayed range of cognitive functioning (Dist. Ex. 5).  The school psychologist reported that the child displayed the ability to match visual stimuli using response cards and manipulative shapes and was able to identify figures or designs in a distracting stimulus, but she could not complete tasks requiring the application of higher-level nonverbal reasoning skills.

 

In April 2005, a private consultant conducted an FBA and developed a behavioral intervention plan (BIP) to address the child's problem behaviors in the classroom (Dist. Exs. 8, 9; Tr. p. 339).  The child's FBA noted that, on several occasions, her off-task and interfering behavior necessitated removal from the classroom (Dist. Ex. 8 at p. 1).  Although she had difficulty initiating several tasks, once fully engaged, the child would typically engage in that task until completion, often appearing proud of her work and effort when finished (id.).  The evaluator recommended, among other things, pre-setting participation in activities, organization of behavior and academics into manageable chunks, and development of a concrete routine (Dist. Ex. 8 at pp. 7-8).  The child reportedly exhibited some improvement under the BIP; however, her behavior eventually deteriorated (Tr. p. 339).  In December 2005, the evaluator updated the child's FBA/BIP in response to the child's continuing aggressive behaviors, and in hopes of increasing the frequency of appropriate classroom behaviors, social interactions and communication (Dist. Ex. 9 at p. 1; Tr. p 194).  The record indicates that on December 15, 2005, petitioner met with respondent to review the changes to the child's BIP and offered home tutoring as an option, which respondent declined (Dist. Ex. 11).

 

At the beginning of the 2005-06 school year, the child's third grade year, the child scratched one of her classmates and the parties determined that a change in placement was necessary (Tr. pp. 457-58; see Dist. Ex. 10).  By letter dated September 12, 2005, petitioner's school psychologist mailed a packet of information about the child to Eastern Suffolk BOCES (BOCES) for her consideration in a BOCES program for the remainder of the 2005-06 school year (Dist. Ex. 12).  BOCES screened the information packet and recommended Premm as a potential suitable placement for the child, a program in which the majority of students are classified as multiply disabled (Tr. p. 68; Parent Ex. V at pp. 13-14). 

 

            On September 27, 2005, Premm, a BOCES program, accepted the child (Dist. Ex. 11).  Respondent visited Premm accompanied by petitioner's school psychologist on October 19, 2005 (Parent Ex. V at p. 14; see Tr. pp. 107, 483).  At the time of her visit, respondent met with the Premm principal and discussed the program and her daughter's special education needs (Tr. pp. 281, 484-86; Parent Ex. V at pp. 14, 16). 

 

            On October 25, 2005, petitioner's CSE convened for an annual review and to develop a program for the remainder of the 2005-06 school year (Dist. Ex. 4; Parent Ex. V).  Respondent attended the meeting accompanied by her parent advocate (Dist. Ex. 4 at p. 1; Parent Ex. V at pp. 2-3).  Meeting participants discussed the child's progress in the district program and a potential change in placement to a more restrictive setting (Parent Ex. V at p. 3).  The resultant individualized education program (IEP) recommended placement at Premm in a 6:1+1 class (Dist. Ex. 4 at p. 1).  Related service recommendations included: two individual 30-minute sessions of occupational therapy per week, one 30-minute session of speech-language therapy in a group of five per week and three 30-minute sessions of individual speech-language therapy per week (Dist. Ex. 4 at p. 2).  It was also determined that the child was eligible for an extended school year (id.).  Goals and objectives were developed to address identified needs in mathematics, speech-language skills, social/emotional/behavioral skills, motor skills and basic cognitive and daily living skills (Dist. Ex. 4 at pp. 4-7).  Respondent objected to the recommended placement at the CSE meeting, noting that Premm was not an appropriate placement for her daughter (Parent Ex. V at p. 17; Parent Ex. C).  The CSE Chairperson and school psychologist listened to respondent's concerns with respect to their suggestion, but continued to recommend Premm as an appropriate placement for the child (Parent Ex. V at p. 45).

 

            By due process complaint notice dated November 10, 2005, respondent commenced an impartial hearing (Parent Ex. A).  In her due process complaint notice, respondent alleged that petitioner refused to send information packets to appropriate center-based programs.  Respondent also asserted that the information packets sent by petitioner were incomplete.2

 

            In an attempt to settle the issues and claims raised in respondent's due process complaint notice, a resolution session took place on November 29, 2005 (Parent Ex. D).  The parties reduced a settlement agreement to writing, in which they agreed that a comprehensive evaluation would be administered to the child by the Lindner Center at petitioner's expense (Dist. Ex. 1). 

 

            A comprehensive evaluation was conducted at the Lindner Center in February and March 2006, when the child was eight years, ten months old (Parent Ex. U).  Re-administration of the Leiter-R yielded a full IQ score of 34 (less than 1st percentile), placing the child's cognitive functioning in the deficient range (Parent Ex. U at p. 9).  The evaluators reported that test procedures for the Leiter-R were modified to accommodate the child's "limited motivation, high activity level, impulsivity, and tendency to engage in aggressive, attention-seeking behavior" and that two colleagues assisted the examiner by prompting the child to complete test tasks (id.).  The evaluators opined that despite the child's "considerable behavioral interference," the results of the Leiter-R represented a valid assessment of her cognitive abilities (id.).  Re-administration of the Vineland with the child's mother as reporter yielded an adaptive behavior composite standard score of 28 (less than 1st percentile).  Administration of the Rosetti Infant-Toddler Language Scale yielded a language comprehension score at the 24-27 month level and a language expression score at the 12-15 month level, which the evaluators noted was consistent with other test results and the informal observations made during the evaluation (Parent Ex. U at pp. 15-16).

 

             Based on the results of their comprehensive assessment, the evaluators concluded that the child's cognitive and adaptive abilities were consistent with the presence of moderate to severe mental retardation (Parent Ex. U at p. 16).  They recommended that the child receive a 12-month educational and treatment program that linked learning and skill development to real-life situations and included both home and center-based components to provide opportunities for generalization of progress across settings and individuals (Parent Ex. U at pp. 16-17).  In a nine-page detailed listing of recommended strategies, the evaluators suggested interventions that would foster social interactions in natural contexts instead of teaching of skills in isolation, an intensive, behavior-based program based on principles of ABA as well as incidental teaching, reliance on concrete methods related to real-life experiences to compensate for weaknesses in abstract processing, formal social skills training, exposure to typically developing peers who could serve as role models, implementation of communication strategies that rely upon visual cues, periodic functional analyses of behavior and development of a behavior program in order to provide the child with meaningful reinforcement (Parent Ex. U at pp. 17-25).  Medication trials were recommended to address compulsive, ritualistic, hyperactive, impulsive and aggressive behavior (Parent Ex. U at p. 26).  Various community resources were also recommended to provide the child's family with therapy and respite services (Parent Ex. U at pp. 27-28). 

 

            On March 1, 2006, the child scratched one of her classmates, thereby prompting petitioner to suspend her from school and place her on home instruction  (Dist. Exs. 10, 11).  On March 6, 2006, by due process complaint notice, petitioner sought a determination that the child was a danger to herself as well as others and requested an alternative educational placement pending her placement in an appropriate educational program (Dist. Ex. 2 at p. 2).  On March 8, 2006, a resolution session took place and the parties entered into a written settlement agreement (Parent Ex. M; Dist. Ex. 3).  Pursuant to the parties' settlement agreement, petitioner agreed to submit applications to two private day school placements, the Center for Developmental Disabilities (Center) and the Developmental Disabilities Institute (DDI) (Dist. Ex. 3).  It was further agreed that the child would remain on home instruction until a mutually agreeable placement was found (id.).  However, in April 2006, both proposed placements rejected the child (Dist. Exs. 16, 17; Parent Ex. T at pp. 6-7). 

 

            Petitioner's CSE convened on May 30, 2006 for an annual review (Parent Ex. T).3  The CSE discussed the Lindner Center's evaluation report during the meeting (id. at pp. 4-6).  Petitioner's CSE again proposed placement at Premm (id. at p. 21).  During the meeting, respondent noted her objection to placement at Premm, describing it as "not proper" for her daughter's needs (id. at p. 33).  In light of her objections to Premm, respondent asked the CSE to consider placing her daughter at Pathfinder Village (Pathfinder) and Anderson, two residential placements (id. at pp. 7-8).  In response to respondent's request that the CSE consider a residential placement, the CSE indicated that in selecting a placement, it was important to consider the least restrictive environment (LRE), and that a day program was a less restrictive setting than a residential program (id. at p. 42).

 

            The impartial hearing commenced on June 7, 2006 and concluded on July 12, 2006 after five days of testimony.  By decision dated August 18, 2006, the impartial hearing officer held that the resolution agreement reached on March 8, 2006 was legally binding upon the parties (IHO Decision, p. 14).  She further found that due to procedural violations of the Individuals with Disabilities Education Act (IDEA), such as improper CSE composition during the October 2005 CSE meeting and the lack of class profiles, petitioner failed to offer the child a free appropriate public education (FAPE) (IHO Decision, pp. 16-18).  Having found that the child was denied a FAPE, the impartial hearing officer opined that Anderson, the program suggested by respondent, was appropriate to meet the child's special education needs (IHO Decision, p. 20).  She also concluded that the equities weighed in respondent's favor (id.).4 Accordingly, the impartial hearing officer determined that the IEPs generated as a result of the October 2005 and May 2006 CSE meetings were invalid and that Premm was not an appropriate program for the 2005-06 and 2006-07 school years (IHO Decision, p. 21).  As a result of her findings, the impartial hearing officer ordered petitioner to reimburse respondent in the event that Anderson accepts the child and she subsequently attends (IHO Decision, p. 16). In addition, she opined that petitioner had improperly delegated its responsibility to obtain an appropriate placement for the child to BOCES (IHO Decision, p. 16).  Lastly, the impartial hearing officer assumed the authority to retain limited jurisdiction with respect to all matters reportedly arising from the enforcement and interpretation of her decision (IHO Decision, p. 22).5

 

            This appeal ensued.  Petitioner seeks reversal of the impartial hearing officer's decision in part.  Petitioner asserts that the impartial hearing officer's decision was legally flawed in several respects.  First, petitioner argues that, in analyzing respondent's claim and in reaching her decision, the impartial hearing officer employed an incorrect legal standard by awarding relief to respondent pursuant to a Burlington/Carter tuition reimbursement analysis.  Petitioner also argues that the impartial hearing officer improperly assigned petitioner the burden of proving that a FAPE was offered to the child.  In addition, petitioner asserts that the IEP generated as a result of the October 2005 CSE meeting was procedurally and substantively sufficient.  Petitioner further contends that Premm, the placement recommended by the CSE in October 2005 and May 2006, was appropriate to meet the child's special education needs in the LRE.  Finally, petitioner disputes the impartial hearing officer's finding that the CSE improperly delegated its responsibility to determine an appropriate placement for the child to BOCES. 

 

            Respondent submitted an answer disputing petitioner's claims and asserting the affirmative defense that the petition is time-barred, as detailed above.  She also initiated a "counterclaim," seeking dismissal of petitioner's appeal as frivolous.  Respondent requests that the impartial hearing officer's decision be affirmed in its entirety.  Petitioner submitted a reply in response to respondent's affirmative defenses, and to respondent's counterclaim.  In its reply, petitioner maintained that the petition was served in a timely fashion, and that respondent's counterclaim that the instant matter was frivolous was not supported by the record.

 

The central purpose of the IDEA (20 U.S.C. §§ 1400 - 1482)6 is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S.Ct. 528, 531 [2005]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. July 27, 2006]).  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320).7  "The core of the statute" is the collaborative process between parents and schools, primarily through the IEP process (see Schaffer, 126 S.Ct. at 532).  A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parents' claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993].

 

The first step is to determine whether the district offered to provide a FAPE to the student (see Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]).  A FAPE is offered to a student when (a) the board of education complies 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, 206-07 [1982]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (20 U.S.C. § 1415[f][3][E][ii]; 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]).  The IDEA directs that, in general, a decision by an impartial hearing officer shall be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]).  Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 200.5[j][4]).  Also, an impartial hearing officer is not precluded from ordering a school district to comply with IDEA procedural requirements (20 U.S.C. § 1415[f][3][E][iii]).  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, 427 F.3d at 195, 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]).  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 least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.114; 8 NYCRR 200.6[a][1]).  The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer, 126 S.Ct. at 537 [finding it improper under the IDEA to assume that every IEP is invalid until the school district demonstrates that it is not]).  Accordingly, respondent, as the party seeking relief at the impartial hearing, has the burden of persuasion.

 

In determining an appropriate placement in the LRE, the IDEA requires that children with disabilities be educated to the maximum extent appropriate with children who are not disabled and that special classes, separate schooling or other removal of children with disabilities from the regular educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. § 1412[a][5][A]; see 34 C.F.R. § 300.114; 8 NYCRR 200.6[a][1]).  In determining whether a student can be educated in regular classes, it is not necessary to establish that the student will learn at the same rate, or master as much of the regular education curriculum as his or her disabled peers (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 [5th Cir. 1989]).  The relevant question is whether a student can achieve the goals of his or her IEPwithin a regular education program, with the assistance of supplementary aids or services (Mavis, 839 F. Supp. at 982 n.25; see Application of a Child with a Disability, Appeal No. 05-010; Application of a Child with a Disability, Appeal No. 03-027: Application of a Child with a Disability, Appeal No. 03-009; Application of the Bd. of Educ., Appeal No. 02-081; Application of a Child with a Disability, Appeal No. 93-4).  The fact that a student with a disability might make greater academic progress in a special education class may not warrant excluding the student from a regular education program (Oberti v. Bd. of Educ., 995 F.2d 1204, 1213 [3d Cir. 1993]).  The CSE must also consider the unique benefits, academic and otherwise, which a student may receive by remaining in regular classes, e.g., language and role modeling with non-disabled peers (Greer v. Rome City Sch. Dist., 950 F.2d 688 [11th Cir. 1991]).  In determining whether a special education class is appropriate, objective factors such as the attainment of passing grades and regular advancement from grade to grade are generally accepted indicators of satisfactory progress and one important factor in determining educational benefit (Rowley, 458 U.S. at 207, n.28, 203-04; Walczak, 142 F.3d at 130).  This is true even when the student has been educated in special education classes (Walczak, 142 F.3d at 130).

 

            As a preliminary matter, I agree with petitioner that the impartial hearing officer erred in finding that the enforceability of the resolution agreement developed on March 8, 2006 was in dispute in the instant matter.  A review of the due process complaint notice indicates that respondent did not assert that petitioner failed to comply with the resolution agreement, nor did she raise this issue during the impartial hearing (see Parent Ex. A).  Based on the foregoing, I concur with petitioner that the impartial hearing officer improperly addressed the enforceability of the resolution agreement developed on March 8, 2006. 

 

I now turn to petitioner's contention that the impartial hearing officer applied an incorrect legal standard in her review of the instant matter.  I agree with petitioner's contention that the impartial hearing officer framed the instant dispute in terms of tuition reimbursement however, given the facts of this case, a tuition reimbursement analysis was not appropriate (see Burlington, 471 U.S. 359 [1985]; Carter, 510 U.S. 7 [1993]).  A review of respondent's due process complaint notice indicates that the child's placement for the remainder of the 2005-06 school year was the central issue raised in the complaint notice (see Parent Ex. A).  During the impartial hearing, the child's placement as recommended for the 2005-06 and 2006-07 school years was at issue.  Respondent was not seeking reimbursement for expenditures for private educational services (Parent Ex. A).  Petitioner further contends that by employing a Burlington/Carter analysis, the impartial hearing officer awarded relief to respondent that was never requested in respondent's due process complaint notice (id.).  I concur.  Under the circumstances, I will annul the impartial hearing officer's decision to the extent that she awarded tuition reimbursement.

 

            Petitioner also contends that the impartial hearing officer's analysis of the instant matter was  flawed because she erroneously placed the burden of proving that a FAPE was offered on the petitioner, in contravention with Schaffer v. Weast, which 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. at 537).  Although the impartial hearing officer's decision indicates at one point that she placed the burden on petitioner to establish that it offered the child a FAPE (see IHO Decision at p. 16), it appears from discussions held on the record that the impartial hearing officer understood that respondent bore the burden of proving that the child was denied a FAPE (Tr. p. 21).  To the extent that the impartial hearing officer's decision is unclear in this regard, the burden is properly placed upon respondent, the party challenging the IEP, and for the purposes of my review, I will place the burden of proof on respondent.

 

            I now turn to petitioner's contention that the impartial hearing officer erred in her determination that, due to procedural deficiencies surrounding the creation of the October 2005 IEP, the child was denied a FAPE.  I concur.  The impartial hearing officer determined that the October 2005 CSE was improperly composed due to the absence of a representative from Premm or BOCES.  A validly composed CSE must include the following individuals: the student's parents; one regular education teacher of the student (if the student is or may be participating in the regular education environment); one special education teacher of the student, or, if appropriate, a special education provider of the student; a representative of the school district involved in special education; an individual who can interpret evaluation results; such other persons having knowledge or special expertise regarding the student as the school district or parents shall designate; if appropriate, the student; and a school psychologist whenever a new psychological evaluation is being reviewed or a change to a more restrictive program is being considered; and such other persons having knowledge or special expertise regarding the student (see 20 U.S.C. § 1414[d][1][B]; N.Y. Educ. Law § 4402[1][b][1][a]; 8 NYCRR 200.3[c][2]). 

 

            Under the circumstances, the record reveals that the October 2005 CSE was validly composed, despite the impartial hearing officer's finding that the absence of a representative from BOCES or Premm seriously infringed upon respondent's participation in the creation of her daughter's IEP.  Although no representative from BOCES or Premm attended the October 2005 CSE meeting (Tr. p. 180; Dist. Ex. 4), based upon the information before me, I am unable to find that respondent was not provided with an opportunity to explore Premm with one of its representatives.  The record indicates that respondent visited Premm accompanied by petitioner's school psychologist on October 19, 2005 (Tr. p. 107; Parent Ex. V at p. 14).  The record also reveals that the Premm principal gave respondent and petitioner's school psychologist a tour of the school during which time they visited the proposed classroom, the physical therapy room, the occupational therapy room, and some of the other facilities (Parent Ex. V at p. 14).  Respondent also had an opportunity to discuss any concerns about the program and her daughter's special education needs with the principal at the time of her visit (Parent Ex. V at pp. 14, 16).  In fact, the record reveals that respondent asked the Premm principal over 20 questions, and she noted that there was no limit as to what she could ask him about the program (Tr. p. 561; Parent Ex. V at p. 16).  Petitioner's school psychologist also visited Premm twice during the month of October 2005, enabling her to expound upon the proposed program during the October 2005 CSE meeting (Tr. pp. 137-38).  Under the circumstances, I am unable to find that the failure to have a representative from Premm or BOCES at the October 2005 CSE meeting infringed upon petitioner's participation in the creation or formulation of her daughter's IEP, or that petitioner's daughter was denied educational benefit or opportunity.

 

            The impartial hearing officer also noted that the lack of class profiles from the proposed placement compromised the development of the IEP generated as a result of the October 2005 CSE meeting.  State regulations require that in special classes students must be suitably grouped for instructional purposes with other students having similar individual needs (8 NYCRR 200.6[a][3], 200.1[ww][3][ii], 200.6[g][2]; Application of a Child with a Disability, Appeal No. 06-019; Application of a Child with a Disability, Appeal No. 03-023; Application of a Child with a Disability, Appeal No. 01-084).  The similarity of abilities and needs may be demonstrated through the use of a proposed class profile or by the testimony of a witness who is familiar with the children in the proposed class (Application of a Child with a Disability, Appeal No. 02-028; Application of a Child with a Disability, Appeal No. 94-7).  However, the Second Circuit has held that the "District was not obligated to provide student profiles for [the child's] special education classes, particularly when they did not yet exist" (Cerra, 427 F. 3d at p. 194).  In the instant case, the record reveals that the child would have been suitably grouped with other students in the proposed program.  The Premm principal testified that the majority of Premm students are classified as multiply disabled, and that the school services students with mental retardation and students with physical impairments (Tr. pp. 68-69).  He further noted that there were students in the program who are classified as autistic (Tr. p. 69).  Accordingly, I disagree with the impartial hearing officer's finding that petitioner's failure to furnish respondent with class profiles from Premm resulted in a denial of FAPE (see Application of a Child with a Disability, Appeal No. 05-095). 

 

            Petitioner also contends that despite respondent's argument that Premm is not an appropriate placement for her daughter, respondent failed to present evidence during the impartial hearing to support this contention.  I have thoroughly reviewed the record and as explained in greater detail below, I concur with petitioner and I find that Premm, the placement recommended by the CSE in October 2005 and in May 2006, offered the child a FAPE in the LRE. 

 

            The record indicates that the child exhibits significant delays in academic, social and communication, and activities of daily living skills (Dist. Ex. 4 at p. 3).  She also has difficulty with self-control and self-management that is sometimes manifested through aggression towards adults and peers (Dist. Ex. 4 at p. 4).  The October 2005 IEP indicated that she needs to develop appropriate communication through expressive language, to relate appropriately to peers and adults, and to improve her toileting, dressing and eating skills (Dist. Ex. 4 at pp. 4-6).  The child also requires a structured environment with consistent expectations and individualized attention in order to focus on tasks (Dist. Ex. 4 at p. 4).  A report from a comprehensive evaluation of the child conducted in February and March 2006 recommended that she receive a 12-month educational and treatment program that linked learning and skill development to real-life situations and provided opportunities for generalization of progress (Parent Ex. U at pp. 16-17).  The evaluators recommended that the child receive instruction in a program that offered interventions that fostered social interactions in natural contexts (Parent Ex. U at p. 17).  They suggested an intensive, behavior-based program based on principles of ABA as well as incidental teaching, reliance on concrete methods related to real-life experiences, formal social skills training, exposure to typically developing peers, implementation of communication strategies that rely upon visual cues, periodic functional analyses of behavior, and development of a behavior program that would provide the child with meaningful reinforcement (Parent Ex. U at pp. 17-25).

 

            The principal of Premm testified that he had reviewed the information in the referral packet provided by petitioner (Tr. p. 59).  The record shows that he observed the child in her current program for approximately one hour, and he was aware of her aggressive behaviors (Tr. p. 60).  Based on his review of this information, the principal opined that the child's needs were similar to the type of student enrolled in the Premm program (Tr. p. 62).  He also described the process by which a child in the program is placed in an appropriate group (Tr. p. 63).  The Premm principal testified that the majority of students at Premm are classified as multiply disabled and have mental retardation as well as physical disabilities, and noted that there were also students in the program with a classification of autism (Tr. pp. 68-69).  In describing the Premm program, which includes a summer program to allow 12-month instruction, the principal stated that the curriculum emphasized readiness and functional academic skills (Tr. pp. 66, 69).  The record also reveals that Premm has activities that consist of a daily living component that includes a classroom set up as a kitchen, in which students receive instruction once per week (Tr. p. 70).  Instruction in activities of daily living, including toilet training, is incorporated throughout the day and is also supported in physical and occupational therapy sessions through activities such as dressing (Tr. pp. 71, 314).  The record reflects that in order to address behavior concerns, each classroom in the Premm program has a behavior management plan developed for the students in that classroom (Tr. pp. 72, 299).  Classroom behavior management plans are supplemented by individualized behavior plans as needed for each child (Tr. p. 72).  Staff are trained and certified in the use of behavior management techniques and a crisis team is available in the building to ensure that behavioral episodes requiring restraint or removal from the room are conducted safely (Tr. pp. 72-73).  Based on the foregoing, I find that Premm, the program proposed by the October 2005 CSE was substantively appropriate to meet the child's special education needs. 

 

            In light of the foregoing, I agree with petitioner that the impartial hearing officer erred in finding that petitioner failed to meet its procedural obligations in developing the October 2005 IEP, and therefore failed to offer a FAPE to the child.  The record supports a finding that petitioner afforded respondent meaningful parental participation in developing the proposed program and I further find that because the Premm program was reasonably calculated to enable the child to receive educational benefit, the child was offered a FAPE during the 2005-06 school year in the LRE (see Cerra, 427 F.3d at 194-95).

 

            I now turn to petitioner's claims with respect to the 2006-07 school year.  Petitioner asserts that the May 2006 CSE offered an appropriate placement to the child in the LRE.  First, I note that while the impartial hearing officer did not make any findings with respect to the development of the May 2006 IEP, she concluded that Premm was not an appropriate placement for the 2006-07 school year and declared the May 2006 IEP "a nullity" (see IHO Decision, p. 21).  The record shows that when petitioner's CSE convened in May 2006, the CSE determined that Premm, the same program recommended in October 2005, continued to be appropriate to meet the child's special education needs (Tr. pp. 212-13).  As set forth in detail above, I concur with petitioner and find that Premm, the placement proposed by the May 2006 CSE, offered the child a FAPE in the LRE for the 2006-07 school year.

 

            Petitioner also asserts that the impartial hearing officer erred in finding that the CSE improperly delegated its responsibility to determine an appropriate program for the child to BOCES.  I concur.  Each CSE has the responsibility to ascertain a pupil's needs and to recommend the necessary services to address those needs, and may not delegate to others the task of determining the amount or nature of those services whether to BOCES or any other institution (Application of a Child with a Disability, Appeal No. 05-031; Application of the Bd. of Educ., Appeal No. 03-062; see 34 C.F.R. § 300.324; Application of a Child with a Disability, Appeal No. 93-15; Application of a Child with a Handicapping Condition, Appeal No. 91-25; Application of a Child with a Handicapping Condition, Appeal No. 90-12). A review of the record indicates that petitioner's CSE conducted its own investigation to determine which program would be most appropriate for the child.  First, prior to recommending Premm, petitioner's CSE explored two other placements, the Center and DDI (Tr. pp. 127-28).  However, both potential placements rejected the child (Tr. pp. 128-29).  Although the record demonstrates that BOCES screened the child's information packet provided by petitioner's school psychologist and concluded that she was an appropriate candidate for Premm based on her profile, ultimately, the CSE determined that Premm was most appropriate to meet the child's special education needs following a recommendation from BOCES (Tr. pp. 106, 177-78, 189).  The record also reflects that petitioner's school psychologist observed the child twice a day in her classroom and, therefore, was familiar with the child's needs (Tr. p. 191).  In addition, in October 2005, the school psychologist visited Premm twice (Tr. p. 137).  During her first visit, her goal was to determine if the program was appropriate (Tr. p. 138).  She was subsequently able to share her findings with petitioner's CSE (see Parent Ex. U).  Thus, the record amply demonstrates that the impartial hearing officer erred in finding that petitioner's CSE shifted its burden of determining an appropriate program for the child to BOCES.

 

            In light of my determination, I need not address the parties' remaining arguments.

            THE APPEAL IS SUSTAINED.

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

 

Dated:

Albany, New York

 

__________________________

 

November 21, 2006

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

1 With respect to the frequency of the child's speech-language and occupational therapy, the impartial hearing officer indicated that the levels of speech-language and occupational therapy will be provided in accordance with the last agreed-upon individualized education program(IEP) (see IHO Ex. vii).  The last agreed-upon IEP is not included with the record; therefore, the record is not clear with regard to the current mandate for these services.

 

2 Respondent's due process complaint notice also alleged that petitioner refused to respond to her request for an independent evaluation at district expense (Parent Ex. A).  To the extent that the child was evaluated at the Lindner Center on February 15, 2006, March 1, 2006 and March 8-9, 2006, at petitioner's expense, I find that this claim is moot and will not be further addressed in this decision (see Dist. Ex. 1; Parent Ex. U).

 

3 The school psychologist testified that the May 2006 IEP was not presented to the board of education and therefore, it is not in evidence (Tr. p. 213).  Although the May 2006 IEP is not part of the record, the record does contain a written transcript from the May 2006 CSE meeting (see Parent Ex. T).

 

4 I note that respondent did not appeal the impartial hearing officer's determination that denied her claim for compensatory education.  An impartial hearing officer's decision is final and binding upon both parties unless appealed to the State Review Officer (8 NYCRR 200.5[j][5][v]; see 20 U.S.C. § 1415[i][1][A]; 34 CFR § 300.514[a]).  Having failed to appeal from that portion of the impartial hearing officer's decision, respondent is bound by that portion of the decision (see Application of a Child with a Disability, Appeal No. 06-092; Application of a Child with a Disability, Appeal No. 05-124; Application of a Child with a Disability, Appeal No. 00-057; Application of the Bd. of Educ., Appeal No. 98-7).

 

5 I also find that the impartial hearing officer erred by retaining jurisdiction over possible subsequent disputes pertaining to the interpretation and enforcement of her order, and I annul this determination as well.  It is well settled that there is no authority for an impartial hearing officer to generally assume jurisdiction with respect to all matters reportedly arising from the implementation of the impartial hearing officer decision, or with respect to any future dispute between the parties (Application of a Child with a Disability, Appeal No. 04-024; Application of the Bd. of Educ. of the Pawling Cent. Sch. Dist., Appeal No. 03-105; Application of the Bd. of Educ. of the Monticello Cent. Sch. Dist., Appeal No. 02-081; Application of the Bd. of Educ. of the Springfield-Griffith Institute Cent. Sch. Dist., Appeal No. 02-008). 

 

6 On December 3, 2004, Congress amended the IDEA, effective July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647 [2004]).  Since the relevant events at issue in this appeal occurred after the effective date of the 2004 amendments, the new provisions of the IDEA apply and citations contained in this decision are to IDEA 2004, unless otherwise specified.

 

7 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[9]).