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

No. 06-116

  

 

  

 

 

Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education

 

 

Appearances:

Orrick, Herrington & Sutcliffe LLP, attorneys for petitioner, Donna M. Zaleskas, Esq., of counsel

 

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Steven D. Weber, of counsel

 

 

DECISION

            Petitioner appeals from the decision of an impartial hearing officer, which denied her requests to be reimbursed for her daughter's tuition costs at the Seton Foundation for Learning (Seton) for summer 2006 and the 2006-07 school year, for compensatory related services for summer 2006, and for transportation costs for summer 2006 and the 2006-07 school year.  The appeal must be sustained in part.

 

            At the commencement of the impartial hearing on July 21, 2006, petitioner's daughter was eight years old and attending a summer program at Seton (Tr. pp. 10, 12).  The Commissioner of Education has not approved Seton as a school with which school districts may contract to instruct children with disabilities (see 8 NYCRR 200.1[d], 200.7).  The child's eligibility for special education programs and services as a child with an other health impairment (OHI) is not in dispute in this appeal (8 NYCRR 200.1[zz][10]).  The record indicates that the child's most recent cognitive testing conducted in June 2006 yielded a nonverbal IQ score of 65 (mild mental retardation range), a verbal IQ score of 75 (borderline range) and a full scale IQ score of 68 (upper limits of mild mental retardation range) (Parent Ex. N at p. 3).  The record reveals that her math and reading skills are approximately at a first grade level (Parent Ex. D at p. 3; Parent Ex. N at p. 6).

 

            When the child was three years old, a physician diagnosed her with a pervasive developmental disorder (PDD) (Tr. pp. 17, 71).  According to the record, the child also has been diagnosed with a suspected genetic disorder, dysmorphic features, a chromosomal variance, hypotonia, asthma, and an encephalopathic disorder in the static phase (Parent Ex. A at p. 6; Parent Ex. I at p. 1; Parent Ex. J; Parent Ex. L at p. 1; Parent Ex. P at p. 1; Parent Ex. N at p. 1; Parent Ex. Q).  Respondent's Committee on Special Education (CSE) classified the child and developed an individualized education program (IEP) for her on May 19, 2004, during the 2003-04 school year, while the child was attending kindergarten (Parent Ex. A at p. 1).  At that time, the CSE recommended placement in a 12:1+1 special class with occupational therapy (OT), speech-language therapy, adaptive physical education, school health services as a related service, and an accessible program ("barrier free") (Parent Ex. A at pp. 1, 6-7, 13).  The CSE did not recommend a 12-month program (Parent Ex. A at p. 1).  The IEP contained annual goals and short-term objectives to address the child's academic needs in reading, math, and writing, and also to address her OT and speech-language needs (Parent Ex. A at pp. 8-13). 

 

            On January 19 and 21, 2005, respondent's school psychologist conducted a psychoeducational evaluation while the child attended respondent's 12:1+1 first grade special class at P.S. 204 (Parent Ex. H at p. 2).  The school psychologist administered the Wechsler Intelligence Scale for Children, Fourth Edition (WISC-IV), the Woodcock-Johnson III Tests of Achievement (WJ-III), the Bender Visual-Motor Gestalt Test (Bender Gestalt), and the House-Tree-Person Test and conducted an informal clinical interview and classroom observation to assess the child's cognitive and social/emotional functioning (see Parent Ex. H at pp. 1-4).  The school psychologist administered the WISC-IV, which yielded a full scale IQ score of 86, which is in the low average range of intellectual functioning (Parent Ex. H at p. 2).  The WISC-IV also produced the following composite scores (CS) for the child:  verbal comprehension, CS 93 (32nd percentile); perceptual reasoning, CS 98 (45th percentile); working memory, CS 86 (18th percentile); processing speed, CS 75 (5th percentile); and a full scale IQ score of 86 (18th percentile) (id.).   The child exhibited average oral language skills, as measured by selected subtests of the WJ-III (Parent Ex. H at p. 3).  The school psychologist also used the WJ-III to measure the child's reading, math, and oral comprehension skills (Parent Ex. H at pp. 3-4). 

 

            On February 1, 2005, respondent's CSE convened to conduct an educational planning committee conference (EPC) (Parent Ex. B at pp. 1, 2).  The IEP generated by the CSE included results from the January 2005 psychoeducational assessment, which noted the child's academic functioning to be at the kindergarten level in all areas, with the exception of reading comprehension where the child performed at grade level (Parent Ex. B at p. 3).  Within the academic performance and learning characteristics section of the IEP, the CSE described the child as being easily distracted with a need for refocusing during activities and as continuing to exhibit delays in her auditory processing skills, word retrieval skills, and problem solving skills (id.). She received speech-language therapy to improve her receptive and expressive language skills, and her articulation skills improved significantly (id.).  The CSE noted that the child demonstrated age-appropriate behaviors, appeared friendly and cooperative with her peers, respectful to adults, and verbalized appropriate concerns (Parent Ex. B at p. 4).  The IEP indicated that the child required an accessible program and an adaptive physical education program because she fatigued easily and had low muscle tone (Parent Ex. B at p. 5).  The CSE revised the child's annual goals and short-term objectives in the areas of math, reading, and OT (compare Parent Ex. B at pp. 6-8, with Parent Ex. A at pp. 8-13).   The CSE recommended continued placement in a 12:1+1 special class and recommended OT, speech-language therapy, school health services, and a full-time health paraprofessional (Parent Ex. B at pp. 12-14). 

 

            The parties later amended the February 1, 2005 IEP through a special education mediation agreement dated March 22, 2005 (Parent Ex. G; see Parent Ex. C).  The mediation agreement documented that the parties agreed to the following:  modify the child's promotional criteria to 50 percent of standards; modify and update the child's IEP goals; provide a Related Service Authorization (RSA) to petitioner for the child to attend one session of counseling per week outside of the school day; conduct a physical therapy evaluation; provide RSAs to petitioner for the child to receive the related services of speech-language therapy and OT during  summer  2005; and change the child's current level of OT services to two sessions per week for 30 minutes per session in a 1:1 setting (push in), and one session per week for 30 minutes in a 1:1 setting (pull out) (Parent Ex. G).  The child underwent the physical therapy evaluation and was not offered physical therapy (PT) because the child's physical needs did not "interfere with her educational needs" (Tr. p. 24).

 

            On May 4, 2005, respondent's CSE conducted the child's annual review for the 2005-06 school year (Parent Ex. C at p. 1).  The CSE recommended placement in a 12:1+1 special class with related services of school health services, OT, and speech-language therapy (Parent Ex. C at pp. 13-16).  The CSE also recommended a 12-month program in 12:1+1 special class with related services, noting that the child would receive speech-language therapy and OT during the summer of 2005 "only" (Tr. pp. 194-95; Parent Ex. C at pp. 1, 15).  In addition, the CSE modified the child's promotion criteria for the 2005-06 school year to 50 percent of the second grade math standards and 50 percent of the second grade English Language Arts (ELA) standards (Parent Ex. C at pp. 15-16).  The 2005-06 IEP also included revised annual goals and short-term objectives to address the child's academic needs, OT needs, and speech-language needs (compare Parent Ex. C at p. 12, with Parent Ex. B at pp. 6-8). 

 

            Respondent's CSE convened on May 18, 2006, to conduct the child's annual review and prepare the child's IEP for the 2006-07 school year (Parent Ex. D at p. 1).  The CSE noted that although the child continued to make progress academically, she remained on the first grade instructional level in math, and she continued to improve in reading and expressive writing (Parent Ex. D at p. 3).  The speech-language therapy update in the IEP noted that the child's articulation skills improved, but that she continued to exhibit delays in receptive and expressive language (Parent Ex. D at p. 4).  The IEP noted that the child demonstrated age appropriate skills in her articulation, fluency and voice (id.).  The update indicated that the child continued to demonstrate weaknesses in auditory processing, word retrieval, and problem solving (id.).  In addition, the child had difficulty using complete sentences with appropriate grammar and syntax to express herself (id.).  The update recommended a modification of speech-language therapy to two sessions per week for 30 minutes per session in a 3:1 setting (id.). 

 

            The CSE recommended a 12:1+1 special class with related services for the child's 2006-07 school year (Parent Ex. D at pp. 1, 11-13).  Although the IEP indicated that the CSE also recommended a 12-month program in a 12:1+1 setting, the IEP did not indicate what programs or services were recommended for the 12-month program as had been noted in the May 4, 2005 IEP (compare Parent Ex. D at p. 1, with Parent Ex. C at p. 1).  The CSE continued the child's requirements for an accessible program and a 12:1+1 adaptive physical education program (Parent Ex. D at p. 6).  In addition, the CSE revised the child's annual goals and short-term objectives to address her needs in reading, math, OT, and speech-language therapy (compare Parent Ex. D at pp. 7-10, with Parent Ex. C at p. 12; see Parent Ex. A. at pp. 8-13; Parent Ex. B at pp. 6-8).  The child's IEP indicated that she would continue to receive the related services of OT, school health services, and speech-language therapy (Parent Ex. D at p. 12).  The CSE added counseling for the child for the 2006-07 school year and prepared annual goals and short-term objectives to meet the child's social and emotional needs (Tr. pp. 208-09; Parent Ex. E at pp. 1-4).  The CSE changed the child's promotion criteria for her 2005-06 second grade school year, noting that the child would meet the first grade math and ELA standards (Tr. pp. 19-21; Parent Ex. D at p. 12; Parent Ex. E at p. 3).  For the 2006-07 school year in third grade, the CSE recommended modified promotion criteria and indicated that the child would meet the second grade math and ELA standards (Parent Ex. D at p. 13; Parent Ex. E at p. 4).  Petitioner testified that in second grade, when her daughter was unable to meet the promotion criteria of 50 percent of the second grade standards, the CSE changed the promotion criteria to first grade standards, and her daughter was then able to meet the promotion criteria for the 2005-06 school year (Tr. pp. 20-21).

 

            By letter dated June 1, 2006, petitioner requested an impartial hearing alleging that respondent failed to offer a free appropriate public education (FAPE)1 to her daughter because respondent's CSE denied petitioner's request to place her daughter in a private school special education classroom with the necessary supports and related services (Parent Ex. O at p. 1).  Petitioner also claimed that her daughter had not made any progress since May 2005 and that her continued placement in a 12:1+1 special class would not produce any progress and would result in regression of her daughter's skills (Tr. p. 26; see Parent Ex. O at p. 1).  Petitioner requested that respondent place the child in a special education classroom in a private school and pay the costs associated with that placement; provide and pay for transportation to and from the private school setting; convene a CSE meeting to determine appropriate related services, instructional supports, and modifications for the child prior to the commencement of the 2006-07 school year; provide and pay for an appropriate summer 2006 program, as well as transportation to and from the summer program; and reimburse petitioner for any related services, support, or program funded by petitioner if respondent failed to provide the necessary summer 2006 program (see Parent Ex. O at pp. 1-2).

 

            The record indicates that petitioner unilaterally placed her daughter at Seton on or about July 3, 2006, and that she provided respondent with notice of the placement on July 21, 2006, the first day of testimony at the impartial hearing (Tr. pp. 1, 40-45; see Parent Ex. M).  The child attended the only class available for her at Seton, which consisted of an ungraded class with four children characterized as "on the autistic spectrum" (Tr. p. 73).  The child did not receive related services during summer 2006 (Tr. pp. 182-83). 

 

            At the impartial hearing, petitioner presented witnesses and documentary evidence (Tr. pp. 14-72, 72-106, 181-219; Parent Exs. A-Q).  Petitioner's documentary evidence included a psychological evaluation report dated June 28, 2006, indicating that petitioner obtained the comprehensive psychological evaluation of her daughter through the same private provider who conducted an evaluation of the child in August 2004 (Parent Ex. N at pp. 1-7; see Parent Ex. I at pp. 1, 4).  The report indicated that at the June 2006 evaluation, the psychologist administered the Stanford-Binet Intelligence Scales-Fifth Edition (Stanford-Binet-5), a selected subtest of the Wide Range Achievement Test-Third Edition (WRAT-3), the Vineland Adaptive Behavior Scales-Survey Interview Form, Second Edition (Vineland-II), and a clinical interview (Parent Ex. N at p. 2).  On the Stanford-Binet-5, the child obtained a full scale IQ score of 68, a nonverbal IQ score of 65, and a verbal IQ score of 75 (Parent Ex. N at p. 3).  The psychologist noted that the child's full scale IQ score and nonverbal IQ score both fell within the mild mental retardation range of intellectual functioning and that her verbal IQ score fell within the borderline range of intellectual functioning (id.).  On the WRAT-3 reading subtest, the child's performance yielded a standard score of 75, which the evaluator noted was at the first grade level for word recognition and decoding skills (id.).  The Vineland-II indicated that the child's overall behavioral skills fell within the low range of functioning (Parent Ex. N at p. 6).  Although petitioner provided her attorney with a copy of this evaluation report, it is unclear from the record whether respondent's CSE received a copy (Tr. pp. 190-91).  It is also unclear from the record whether petitioner provided the August 2004 evaluation report to respondent's CSE. 

 

            In addition, petitioner's documentary evidence included letters from private physicians to support her contention that respondent failed to provide a FAPE to her daughter because the proposed 12:1+1 special class program was not appropriate to meet her daughter's needs and her daughter required a smaller classroom environment to make progress (see Parent Exs. I, J-L, N, P, Q).  The record does not indicate whether petitioner shared this information with respondent's CSE.

 

            Respondent presented one witness at the impartial hearing and submitted one document into evidence at the impartial hearing (Tr. pp. 119-78; Dist. Ex. 1). 

 

            By decision dated August 31, 2006, the impartial hearing officer concluded that petitioner failed to meet her burden to prove that respondent failed to provide her daughter with a FAPE in the least restrictive environment (LRE) for the "2005-06 school year" (IHO Decision, p. 9).  The impartial hearing officer noted specifically that petitioner's claim that her daughter failed to make progress since May 2005 was "either unclear or contradicted by the evidence" and added that the evidence demonstrated that an "upward change" occurred in the child's IQ scores between 2004 and 2005 (IHO Decision, pp. 9-10).  In addition, the impartial hearing officer noted that the evidence also showed that the child's word recognition, decoding skills, and reading fluency improved between 2005 and 2006 (IHO Decision, p. 10).  The impartial hearing officer indicated that petitioner failed to present evidence, such as progress reports, report cards, or teacher testimony, to support her claim that her child failed to make progress during the 2005-06 school year in the 12:1+1 special class at P.S. 204 (IHO Decision, pp. 10-11).

 

            In addition, the impartial hearing officer determined that the letters submitted by petitioner from private physicians were insufficient to support her claim that her daughter required a private school placement or that the "child's public school placement was inappropriate" (IHO Decision, p. 11).  The impartial hearing officer also concluded that the letters were insufficient to support petitioner's claim that her daughter's skills were regressing as a result of her placement in a 12:1+1 special class (id.).

 

            The impartial hearing officer concluded that petitioner did not meet her burden to establish that respondent recommended a 12-month program for the 2006-07 school year because the evidence did not demonstrate that her daughter required a full time 12-month program to prevent substantial regression (IHO Decision, pp. 11-12).  The impartial hearing officer credited the testimony of respondent's witness, which sufficiently explained that although the IEP appeared to contain a recommendation for a 12-month program because it was checked "yes" on the IEP, it was, in fact, a clerical error (IHO Decision, p. 12; see Tr. pp. 150-51, 162-63, 167-69; Parent Ex. D at p. 1).  The impartial hearing officer opined that the testimony regarding the error was consistent with previous IEPs, which also did not contain recommendations for a 12-month program and only recommended that the child receive a 12-month program for related services during summer 2005 (IHO Decision, p. 12; see Parent Ex. C at p. 1).

 

            Based upon the foregoing, the impartial hearing officer determined that petitioner failed to meet her burden to prove that respondent's proposed placement in a 12:1+1 special class for the 2006-07 school year was not appropriate, and, therefore, petitioner did not meet her burden to prove that respondent failed to offer a FAPE in the LRE for the 2006-07 school year.  The impartial hearing officer denied petitioner's request to be reimbursed for her daughter's tuition costs at Seton for summer 2006, for the 2006-07 school year, and for transportation costs associated with that placement (IHO Decision, pp. 12-13, 15).  The impartial hearing officer also denied petitioner's request for reimbursement for the costs of related services during the summer of 2006, because petitioner's daughter did not receive related services during that summer (IHO Decision, pp. 12-13).

 

            The impartial hearing officer also concluded that petitioner failed to meet her burden to prove that Seton was an appropriate placement for the child, and that the equities favored petitioner (IHO Decision, pp. 13-15).

 

            Petitioner appeals that portion of the impartial hearing officer's decision that denied her request to be reimbursed for the costs of her daughter's tuition for the summer 2006 program at Seton and for the costs of her daughter's tuition at Seton for the 2006-07 school year.  Petitioner's appeal seeks an award of petitioner's original request for relief, as set forth in her request for an impartial hearing dated June 1, 2006.2

 

            Respondent asserts in its answer that petitioner's appeal should be dismissed and that the impartial hearing officer's decision should be upheld in its entirety.

 

            The central purpose of the IDEA (20 U.S.C. §§ 1400-1482)3 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]).  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[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22).4  The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[a][1]). 

 

            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 parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents 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]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, 471 U.S. at 370-71).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (id. at pp. 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148).

 

            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 (Rowley, 458 U.S. at 206-07; Cerra, 427 F.3d at 192).  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]). 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 34 C.F.R. § 300.513[a][2]).  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, is 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, 300.116; 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]).

 

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of the Bd. of Educ., Appeal No. 06-076; Application of a Child with a Disability, Appeal No. 06-059; Application of the Bd. of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  

 

            Based upon a review of the record, I concur with the impartial hearing officer's conclusion that petitioner failed to meet her burden of persuasion that respondent's proposed 12:1+1 special class program was not appropriate to meet her daughter's educational needs.

 

            The record reveals that petitioner's arguments focused on respondent's proposed placement in a 12:1+1 special class, and specifically, that the proposed program was not appropriate because the child failed to make any progress in a 12:1+1 special class during the 2005-06 school year.  Petitioner's testimony, however, provides only conclusory statements that the child did not make progress in the 12:1+1 special class and that professionals told her that the child would not progress without a private school placement (Tr. p. 26).  Although petitioner testified that the child's teacher suggested that the child was not making progress, I note that in the child's 2006-07 IEP under present levels of performance, respondent's CSE reported that the child "continues to make consistent progress" in math and that "[h]er reading and expressive writing skills are continuing to improve" (Tr. pp. 15, 188-89; Parent Ex. D at p. 3). 

 

            Similarly, petitioner testified that the child's speech-language therapist told her that the child was not making progress and was "regressing," yet the 2006-07 IEP speech-language present levels of performance contradict this testimony and do not report regression of any speech-language skills (Tr. pp. 22, 188-89; Parent Ex. D at p. 4).  Although the present levels of performance state that the child continues to demonstrate delays in receptive and expressive language skills and describes areas of weakness, such delays and weakness are not equivalent to stating that the child's skills regressed in those areas.  I also note that the child's 2006-07 IEP reports that the child's articulation skills have improved (Parent Ex. D at p. 4). 

 

            Petitioner further testified that she had her daughter's report cards at home, but she did not produce them at the impartial hearing (Tr. pp. 35, 50-51).  When the impartial hearing officer asked about the child's most recent June 2006 report card, petitioner testified that it recommended that the child keep up with reading and math over the summer (Tr. pp. 50-51).  Petitioner did not testify regarding the child's grades, her progress toward IEP goals, or any narrative information from the teacher regarding the child's performance. 

 

            A thorough review of the record indicates that it does not contain sufficient evidence to support petitioner's claim that the child did not make progress in the 2005-06 school year in a 12:1+1 special class.  Petitioner's testimony regarding the downward modifications to the child's promotion criteria is not an appropriate objective measure of the child's progress toward meeting her IEP goals and objectives (Tr. pp. 18-21, 35).

 

            The record reveals that the child has attended a 12:1+1 special class at P.S. 204 since the 2003-04 school year (Tr. p. 34).  Petitioner testified that the teacher and class stay together and only the grade designation changes from year to year (Tr. pp. 64-65).  The teacher of the class is a licensed special education teacher (Tr. pp. 121-22).  Of the children identified to attend the class for the 2006-07 school year, six receive speech-language and five receive counseling, which represent related services recommended for the child for the 2006-07 school year (Tr. pp. 122-23, 127-28; see Tr. pp. 207-09; Parent Ex. D at p. 12).  The reading skills of the children in the proposed 12:1+1 special class ranged from a pre-K to a 2.5 grade level (Tr. pp. 126-28).  The most recent test results for the child indicated her reading skills were at a first grade level, which fell within the reading level range of the proposed class (Tr. p. 160; Parent Ex. N at p. 6).   The child's May 2006 IEP stated that her math skills were at a first grade instructional level and were also within the range of math skills in the proposed 12:1+1 special class (pre-K to 2.9 grade level in math) (Tr. pp. 127-28; Parent Ex. D at p. 3).  The child was also in the middle of the age range of children recommended for the class (Tr. p. 148).  Based on the information in the record about the proposed 12:1+1 special class program, respondent's recommendation of the 12:1+1 program was appropriate for the child.

 

            Based upon the information before me, I find that respondent's proposed placement of the child in a 12:1+1 special class as recommended in the May 18, 2006 IEP, at the time it was formulated, was reasonably calculated to enable the child to receive educational benefit during the 2006-07 school year (Viola, 414 F. Supp. 2d at 382 [citing to J.R. v. Bd. of Educ. of the City of Rye Sch. Dist., 345 F. Supp. 2d 386, 395 n.13 [S.D.N.Y. 2004]; see Cerra, 427 F.3d at 195; see also Mrs. B., 103 F.3d at 1120; Application of a Child with a Disability, Appeal No. 06-112; Application of a Child with a Disability, Appeal No. 06-071; Application of the Bd. of Educ., Appeal No. 06-010; Application of a Child with a Disability, Appeal No. 05-021).  As noted above, therefore, I concur with the impartial hearing officer that respondent offered the child an appropriate program for the 2006-07 school year.  Having determined that the child was not denied a FAPE for the 2006-07 school year, it is not necessary to consider the appropriateness of the program petitioner obtained for her daughter or whether the equities support her claim for tuition reimbursement (see Voluntown, 226 F.3d at 66).  

 

            Notwithstanding the above determination, I note the following.  First, the child's 2006-07 IEP contains updated and revised information regarding the child's present levels of performance for speech-language therapy and OT; however, the record does not contain updated speech-language or OT evaluation reports conducted by respondent.  In addition, I note that the most recent psychological evaluation of the child in June 2006 reported that the evaluator only administered the reading subtest of the WRAT-3 (Parent Ex. N at p. 3).

 

            Second, the record also reveals that at the impartial hearing, petitioner questioned whether the child still requires a barrier free program (Tr. pp. 189-90; Parent Ex. D at p. 6).  Although the record indicates that respondent conducted a physical therapy evaluation during the spring of 2005, petitioner's concerns raised during the impartial hearing warrant a reevaluation of the child's need for a barrier free program (Tr. pp. 23-24; Parent Ex. D at p. 6, see Parent Ex. G).

 

            Third, the record further indicates that the child's 2006-07 IEP recommended counseling services (Tr. pp. 207-09; Parent Ex. E).  I note that the June 2006 private psychological evaluation report stated that the child's socialization skills, as measured by the Vineland-II, were "low" and the evaluator recommended social skills training (Parent Ex. N at pp. 5, 7).  The record indicates that this report was not available to respondent's CSE at the May 2006 meeting, and the counseling goals in the 2006-07 IEP do not include social skills training.

 

            I, therefore, will direct respondent to conduct updated speech-language and OT evaluations within 30 days from the date of this decision, if they have not been conducted within the past year, and will direct respondent's CSE to reconvene within 30 days after the completion of such evaluations to review the results, review the June 2006 private psychological evaluation report, fully discuss whether the child requires a barrier free program, and amend or modify the child's 2006-07 IEP, if appropriate. 

 

            Finally, the pendency provisions of the IDEA and the New York State Education Law require that a child remain in his or her then current placement, unless the child's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the child (20 U.S.C. § 1415[j]; 34 C.F.R. § 300.518[a]; N.Y. Educ. Law § 4404[4]).  Pendency has the effect of an automatic injunction, which is imposed without regard to such factors as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Drinker v. Colonial Sch. Dist., 78 F.3d 859 [3d Cir. 1996]; Zvi D. v. Ambach, 694 F.2d 904 [2d Cir. 1982]).  The purpose of the pendency provision is to provide stability and consistency in the education of a child with a disability (Honig v. Doe, 484 U.S. 305 [1987]).  It does not mean that a child must remain in a particular site or location (Concerned Parents and Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751 [2d Cir. 1980], cert. denied, 449 U.S. 1078 [1981]; Application of a Child with a Disability, Appeal No. 06-062; Application of a Child with a Disability, Appeal No. 04-064; Application of the Bd. of Educ., Appeal No. 99-90). 

 

Under the IDEA, the inquiry focuses on identifying the child's then current educational placement (Zvi D., 694 F.2d at 906).  Although not defined by statute, the phrase "then current placement" has been found to mean the last agreed upon placement at the moment when the due process proceeding is commenced (Murphy v. Bd. of Educ., 86 F. Supp 3d 354, 358-359 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2002]; Application of a Child with a Disability, Appeal No. 06-062; Application of a Child with a Disability, Appeal No. 04-011; Application of the Bd. of Educ., Appeal No. 03-028; Application of a Child with a Disability, Appeal No. 01-013; Application of the Bd. of Educ., Appeal No. 00-073; Application of the Bd. of Educ., Appeal No. 97-82).  The U.S. Department of Education has stated that a child's then current placement would " … generally be taken to mean current special education and related services provided in accordance with a child's most recent [IEP]" (Letter to Baugh, 211 IDELR 481; see Mackey v. Bd. of Educ., No. 03-7860, 2004 WL 2251796, at *4 [2d Cir. Oct. 7, 2004]; Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Drinker, 78 F.3d at 867 [last functioning IEP]; Gregory K. v. Longview Sch. Dist., 811 F.2d 1307 [9th Cir. 1987]).  In most cases, the pendency placement will be the last unchallenged IEP (Arlington Central School District v. L.P., 421 F. Supp. 2d 692 [S.D.N.Y. 2006]).  Where there is a subsequent agreement between the parties during the proceedings to change the placement, it need not be reduced to a new IEP, and it can supersede the prior unchallenged IEP as the then current placement (Bd. of Educ. v. Schutz, 137 F. Supp. 2d 83 [N.D.N.Y. 2001], aff'd, 290 F.3d 476 [2d Cir. 2002]).  Federal regulations on pendency specify that "during the pendency of any administrative or judicial proceeding regarding a due process complaint notice requesting a due process hearing under 34 C.F.R. § 300.507, unless the State or local agency and the parents of the child agree otherwise, the child involved in the complaint must remain in his or her current educational placement" (34 C.F.R. § 300.518[a]).

 

Based upon the evidence and the pendency provisions in the IDEA, I find that the child's last agreed upon program at the commencement of the due process proceeding in this case was the child's May 4, 2005 IEP, which included the provision of related services to the child during the summer of 2005.  Thus, the child was entitled to receive the related services contained in her May 4, 2005 IEP under the pendency provisions of the IDEA.  Although the impartial hearing officer acknowledged in her decision that the child's related services "should have continued over the summer since it was the last agreed upon placement," she failed to direct respondent to provide petitioner with additional services.  The record indicates that the child did not receive related services during the summer of 2006 through respondent's providers, respondent did not provide petitioner with the necessary RSAs to obtain these related services from private providers, and petitioner did not obtain or pay for the child's related services on her own.  Inasmuch as petitioner did not privately pay for or otherwise obtain these related services, she is not entitled to tuition reimbursement for such.  However, I find that since the child should have received these related services pursuant to the pendency provisions of the IDEA, I will direct respondent to provide the child with 12 sessions of OT, 30 minutes per session, in a 1:1 setting, and 12 sessions of speech-language therapy, 30 minutes per session, in a 1:1 setting, as additional services during the remainder of the 2006-07 school year, unless the parties agree otherwise.

 

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

 

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

IT IS ORDERED that, unless the parties otherwise agree, respondent shall conduct updated speech-language and OT evaluations of the child, if such evaluations have not been conducted within the past year, within 30 days of this decision; and respondent shall reconvene a CSE meeting within 30 days of the completion of the evaluations to consider the results of such evaluations, as well as consider the June 2006 psychoeducational evaluation obtained by petitioner and the need for a barrier free program,  and if appropriate amend or modify the child's 2006-07 IEP based upon the results of these evaluations, and to determine the provision of additional services to the child as directed below; and

 

IT IS FURTHER ORDERED that respondent shall provide 12 sessions of OT, 30 minutes per session, in a 1:1 setting, and 12 sessions of speech-language therapy, 30 minutes per session, in a 1:1 setting, as additional services to the child during the remainder of the 2006-07 school year, unless the parties agree otherwise. 

 

Dated:

Albany, New York

 

__________________________

 

December 12, 2006

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

1 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]).

 

2 Petitioner attached additional documentary evidence to their respective pleadings for consideration in this appeal.  Generally, documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Child with a Disability, Appeal No. 06-112; Application of a Child with a Disability, Appeal No. 06-086; Application of the Bd. of Educ., Appeal No. 06-044; Application of the Bd. of Educ., Appeal No. 06-040; 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).  Although the additional documents were not available at the time of the impartial hearing, I find that the documents are not necessary for my decision, as set forth in detail below, and I therefore decline to consider them.  

 

3 On December 3, 2004, Congress amended the IDEA; however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004), Pub. L. No. 108-446, 118 Stat. 2647).  As the relevant events in the instant appeal took place after the effective date of the 2004 amendments, the provisions of the IDEA 2004 apply and the citations contained in this decision are to the newly amended statute.

 

4 The Code of Federal Regulations (34 C.F.R. Parts 300 and 301) has been amended to implement changes made to the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004.  The amended regulations became effective October 13, 2006.  In this case, none of the new provisions contained in the amended regulations are applicable because all the relevant events occurred prior to the effective date of the new regulations.  However, for convenience, citations herein refer to the regulations as amended because the regulations have been reorganized and renumbered.