The State Education Department
State Review Officer

No. 06-118







Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Commack Union Free School District



Lamb & Barnosky, LLP, attorney for respondent, Robert H. Cohen, Esq., of counsel




Petitioner appeals from a decision of an impartial hearing officer which determined that respondent's Committee on Special Education (CSE) had offered his son a free appropriate public education (FAPE) from November 11, 2005 through the remainder of the 2005-06 school year.  The appeal must be dismissed.


At the time the impartial hearing started on January 19, 2006, the student was 12 years old and in the seventh grade (Dist. Ex. 8).  His eligibility for special education programs as a student with an other health-impairment is not in dispute in this appeal (see 8 NYCRR 200.1[zz][10]).


The student was described as a friendly young man who easily engaged in conversation (Dist. Exs. 16 at p. 3, 17 at p. 2).  His cognitive abilities are in the average range of functioning and his academic achievement test scores are in the average to superior range (Dist. Exs. 17 at p. 3, 19 at p. 3).  The record reflects that the student exhibited behaviors at school characterized by respondent as aggression toward other students, noncompliance with teacher requests, being disruptive in class, and inappropriate behavior (Dist. Exs. 17 at p. 1, 24 at p. 3).


            The student has attended respondent's schools since kindergarten (Dist. Ex. 60 at p. 2).  He has demonstrated inattentive, inappropriate and disruptive behavior since the first grade (Dist. Exs. 73-75).  In January 2001, while the student was in second grade, respondent's school psychologist referred him to respondent's CSE due to incidents of pushing, hitting, and noncompliant and disruptive behaviors (Dist. Ex. 72).  The student was evaluated and results of cognitive testing indicated the student's cognitive abilities were in the high average to superior range (Dist. Ex. 69 at p. 5).  Academic achievement test scores were average to above average (Dist. Ex. 63 at p. 3).  The CSE convened on April 19, 2001 and found the student ineligible for special education services; however, it recommended that the student undergo a psychiatric evaluation, after which the CSE would reconvene to review the results (Dist. Ex. 61). 


            On July 11, 2001 respondent obtained a psychiatric evaluation of the student (Dist. Ex. 60).  The psychiatric report stated that although the student's academic functioning was commensurate with his above-average intelligence, his behavior was an "obstacle" to successful classroom management, and implementation of a behavioral intervention plan (BIP) yielded "less than optimal results" (Dist. Ex. 60 at p. 4).  The psychiatrist diagnosed the student with an oppositional defiant disorder (ODD), and an "Anxiety Disorder, NOS [not otherwise specified], with intolerance of frustration, temperamental rigidity, impulsive, mood reactive personality style" (id.).  She recommended that the family obtain mental health services for the student and that he receive supportive services in school including an "effective" BIP (Dist. Ex. 60 at pp. 4-5).  On September 6, 2001 the CSE reconvened and again determined that the student was ineligible for special education services, but recommended that a BIP be implemented and that the student receive counseling services (Tr. p. 191; Dist. Ex. 58).  During third and fourth grade, a social worker and school psychologist attempted to provide in-school counseling services to the student with limited success (Tr. pp. 193-97, 201; Dist. Ex. 54). 


            Behavioral incidents involving the student continued during third, fourth and fifth grades (Dist. Exs. 48, 49, 50, 52, 53, 55, 56, 57), during which time at least two BIPs for the student were developed (Dist. Exs. 45-47).  During the 2004-05 sixth grade year, the student received numerous disciplinary referrals despite having supports in place such as a BIP, an assigned personal dean, and meetings with a counselor (Tr. p. 208; Dist. Exs. 37, 38).  After an incident involving violence toward another student and refusal to leave the dean's office, a May 16, 2005 superintendent's hearing was held that resulted in the student's suspension from school for the remainder of the school year (Dist. Ex. 33).  The student's final 2004-05 report card reflected barely passing grades in Reading, Science and Social Studies, with a cumulative average of 72 (Dist. Ex. 34).  The report card indicated that the student was absent from school a total of 57 times and was tardy 23 times during the school year (id.).  Respondent attempted to provide the student with home instruction, however between April and June 2005 had difficulty scheduling home tutors (Tr. pp. 523-24).  In June 2005 petitioner informed respondent that he would obtain private counseling services for his son, which occurred a "handful" of times (see Tr. pp. 370-71, 376-77; Dist. Ex. 40).


            By letter dated May 25, 2005, the principal of the middle school notified petitioner that she requested that the student transfer to an "alternative, more appropriate educational setting" for the 2005-06 school year (Dist. Ex. 32).  In July 2005, the principal compiled a summary of the student's behavior during the 2004-05 school year (Dist. Ex. 31).  According to her data, in 30 weeks of attending the middle school, the student was referred to the dean over 43 times (Dist. Ex. 31 at p. 3), received five external suspensions (id.), and school personnel had approximately 166 contacts concerning the student with administrators, the student or his parents (Dist. Exs. 31 at p. 5, 36 at p. 2).  She stated that all but one or two of the infractions involved "victimizing" others by either physically hurting or embarrassing them (Tr. p. 359).  The principal reported that the student had suffered a decline in his grades during the 2004-05 school year, which his middle school teachers attributed to his unavailability for learning due to inability to sustain focus, impulsivity and interest in hurting or distracting others (Dist. Exs. 31 at p. 1, 36 at p. 3, see Dist. Ex. 39).  She proposed that the student transfer to Brennan Middle School (Brennan) for the upcoming 2005-06 school year (Dist. Ex. 31 at p. 7).  At the beginning of August 2005 respondent notified petitioner of its proposed academic transfer of the student (Dist. Exs. 29, 30).


            By letter dated August 8, 2005, respondent's assistant to the superintendent for special education referred the student to Brennan's Positive Alternatives to Student Success (PASS) program, a Board of Cooperative Educational Services (BOCES) program located within respondent's district (Tr. pp. 212-14, 597; Dist. Ex. 28).  Brennan was described as a behavioral-based program for classified and non-classified students with average to above average cognitive skills (Tr. p. 268).  Brennan offered smaller class sizes, behavior modification and Regent's level courses (Tr. pp. 213, 268).  The program also offered individual, group and family counseling (Tr. p. 212).  By letter dated August 30, 2005, the student's parents referred their son for a "CSE evaluation," including a psychiatric evaluation (Dist. Ex. 20).  Respondent postponed its proposed academic transfer of the student (id.).


            At the beginning of the student's seventh grade year in 2005-06, he remained on home instruction pursuant to an agreement between the parties (Tr. p. 219).  On September 12, 2005 respondent received petitioner's consent to an initial evaluation of the student for special education services (Tr. pp. 218-19; Dist. Ex. 15).  On September 23, 2005 petitioner provided respondent with consent for a psychiatric evaluation of the student (Dist. Ex. 14).  On September 21 and 22, 2005, an educational evaluation of the student was conducted (Dist. Ex. 19).  Administration of the Woodcock Johnson III Tests of Cognitive Abilities and Achievement yielded a reading comprehension cluster standard score (SS) of 102 (55th percentile), a broad math cluster SS of 104 (60th percentile) and a written expression cluster SS of 125 (95th percentile) (Dist. Ex. 19 at pp. 1-2).  The student's performance on cognitive testing was in the average range of overall intellectual functioning (Dist. Ex. 19 at p. 3).  Administration of the Clinical Evaluation of Language Fundamentals-Fourth Edition (CELF-4) to the student in late September revealed average to above average receptive and expressive language standard scores (Dist. Ex. 18 at p. 4).


            Over three days in October 2005, respondent's high school psychologist conducted a psychological evaluation of the student (Tr. p. 663; Dist. Ex. 17).  Administration of the Wechsler Intelligence Scale for Children-Fourth Edition (WISC-IV) yielded a verbal comprehension composite SS of 102, a perceptual reasoning composite SS of 102, a working memory composite SS of 113, a processing speed composite SS of 103 and a full scale IQ SS of 107 (Dist. Ex. 17 at p. 3).  The psychologist reported that the student's composite scores presented a relatively flat profile with non-significant variability between scores (Dist. Ex. 17 at p. 7).  He also reported that the student's full scale IQ score represented an accurate estimate of his overall cognitive processing abilities (id.).  Administration of the Behavior Rating Inventory of Executive Function (BRIEF) and the Behavior Assessment System for Children-Second Edition (BASC-2) to the student's father and two of his teachers as well as completion of the Conners' Parent Rating Scales – Revised (Connors') by petitioner suggested that areas of the student's executive functioning were affected by emotional and behavioral "dysregulation" (Dist. Ex. 17 at p. 16).  The psychologist stated that the student's father reported concerns in the areas of aggression, hyperactivity, depression and attention problems, while the student's teachers reported concerns regarding the student's hyperactivity (Tr. pp. 674-76).  The psychologist recommended a CSE review of all evaluative data and emotional-behavioral factors to determine the most appropriate setting for the student (Dist. Ex. 17 at p. 16). 


            The CSE meeting scheduled for October 20, 2005 was subsequently rescheduled for November 10, 2005 in order to allow for the psychiatric evaluation to take place and for the CSE to receive the results (Tr. pp. 224-28).


            On October 24, 2005, a psychiatric evaluation of the student was conducted (Dist. Ex. 16).  Results of administration of the Conners' to petitioner yielded scores similar to the results obtained by respondent's high school psychologist (Tr. p. 679; Dist. Ex. 16 at p. 2).  During the mental status examination, the student reportedly presented as a friendly, polite, respectful young man whose mood was reported to be "happy most of the time" (Dist. Ex. 16 at p. 3).  The psychiatrist reported that the student's impulse controls and judgment were intact, but by history could be impaired in other settings (id.).  He opined that the student was aware of his difficulties though he tended to externalize blame onto others (id.).  The psychiatrist diagnosed the student with an attention deficit hyperactivity disorder (ADHD)-combined type and ODD (id.).  Recommendations to assist the student with his attention problems included small class size, increased supervision and supports, preferential seating, extra time on time tasks and an extra set of books (Dist. Ex. 16 at p. 4).  The parent was encouraged to consider psychotrophic medication for the student's ADHD (id.).  Structured socialization activities, a behavior modification approach and consideration of a "more therapeutic educational setting" were also recommended (id.). 


            Respondent had difficulty providing the student's home instruction services during the fall of 2005 (Tr. pp. 220-24; Dist. Ex. 27 at pp. 3-7).  On November 10, 2005, the CSE convened and the resultant individualized education program (IEP) recommended both classification of petitioner's son as a student with an other health-impairment and temporary home instruction until placement in a BOCES 8:1+1 special class at Brennan could be arranged (Dist. Ex. 8 at p. 2).  Group and individual counseling were offered one time per week, and family counseling was offered one time per month (id.).  The IEP noted that the student's parents were not in agreement with the recommended placement and they did not sign consent for the provision of special education services at the conclusion of the CSE meeting (Tr. pp. 241, 302).  The student remained on home instruction (Tr. pp. 306-07).


            On November 17, 2005 respondent received petitioner's due process complaint notice requesting that his son return to respondent's middle school for the duration of the impartial hearing, that a "behavior plan" be developed, and that his son receive services for his ADHD (Dist. Ex. 1).  Respondent's answer to petitioner's complaint stated that the supports provided to the student did not succeed because the student needed a smaller, more structured therapeutic setting (Dist. Ex. 2).


            In January 2006, the impartial hearing commenced and the parties began to discuss an interim service plan (ISP) for the student, who was allowed to return to respondent's middle school on a modified school day schedule (Tr. pp. 246-47).  On February 7, 2006, the parties agreed on an ISP whereby the student attended the middle school on an abbreviated schedule with the services of a 1:1 paraprofessional (Tr. pp. 246-48).  Respondent agreed to hire a private school psychologist to conduct a functional behavioral assessment (FBA) and to develop a BIP (Tr. pp. 248-49; Dist. Ex. 26).  Petitioner agreed to obtain private counseling services for the student and respondent would provide in-school counseling two times per week (Tr. pp. 250-51; Dist. Ex. 26). 


            On February 15, 2006, an FBA was conducted and a BIP was developed for the student (Dist. Ex. 25).  The BIP identified student, instructional, curriculum and environmental variables that affected the student's behavior (Dist. Ex. 25 at pp. 1-3).  It also identified various behavioral supports and interventions, criteria for evaluation of effectiveness of the intervention, and time frames for review (Dist. Ex. 25 at pp. 3-7).  The plan also included, among other things, anger control and relaxation techniques (Dist. Ex. 25 at pp. 8-13). 


            From January 24, 2006 through the end of February 2006, the student received at least six disciplinary referrals, four of which resulted in in-school suspensions (Dist. Ex. 24 at p. 5).  The school psychologist stated that the student's BIP was implemented on February 27, 2006 when the student returned to school full time (Tr. pp. 691, 700).  Subsequently and at the request of petitioner, the student's 1:1 aides were instructed by respondent to give the student more personal space and to not be "on top of him" (Tr. p. 253).  Thereafter, on March 14, 2006, the student received a five-day out of school suspension for inappropriate behavior (Dist. Ex. 24 at p. 3).  On or about March 24, 2006, the student received another five-day out of school suspension, also for inappropriate behavior (Dist. Exs. 22, 23, 24 at p. 1).  Superintendent's hearings regarding the student's behavior were held on March 31 and April 19, 2006 (Dist. Ex. 21).  The student was found "guilty of engaging in insubordinate, disruptive and violent conduct that endangered the safety, morals, health and welfare of others" (id.).  An April 19, 2006 manifestation determination found that the student's behavior was a manifestation of his "handicapping condition" and respondent's superintendent determined that the student be placed in an interim alternative educational setting of home-based instruction for forty-five school days (id.).  Respondent had difficulty providing the student's home based instruction (Tr. pp. 463-64, 468; Dist. Ex. 27 at pp. 1-2). 


            On April 30, 2006, the impartial hearing officer recused himself (Dist. Ex. 7).  On May 8, 2006, a new impartial hearing officer was appointed (Dist. Ex. 5).  The final seven days of the impartial hearing resumed on May 24, 2006 before the newly appointed impartial hearing officer.  The impartial hearing officer rendered her decision on August 31, 2006.  She found that the November 10, 2005 IEP offered the student a FAPE.


On appeal petitioner asserts, among other things, (1) that the impartial hearing officer erred in determining that respondent's CSE offered petitioner's son a FAPE; (2) that the impartial hearing officer failed to explain why petitioner's son could not receive the therapy needed for his ADHD while remaining in a regular education environment; (3) that the impartial hearing officer was not impartial; and (4) that respondent improperly utilized the Individuals with Disabilities Education Act (IDEA) as a "tool to transfer [petitioner's son] out of the school."  Petitioner requests that the determination of the impartial hearing officer be annulled and that petitioner's son "receive services for ADHD in a regular education setting."


Respondent raises no affirmative defenses and asserts that petitioner did not meet his burden of persuasion that respondent failed to offer a FAPE.


The central purpose of the IDEA (20 U.S.C. §§ 1400-1487)1 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[8][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22).2, 3  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[a]; 8 NYCRR 200.6[a][1]).


            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 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 (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]). 


            Both the Supreme Court and the Second Circuit have noted that the IDEA does not, itself, articulate any specific level of educational benefits that must be provided through an IEP (Rowley, 458 U.S. at 189; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 122, 130 [2d Cir. 1998]), although the Supreme Court has specifically rejected the contention that the "appropriate education" mandated by the IDEA requires states to maximize the potential of handicapped children (Rowley, 458 U.S. at 197 n.21, 189, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).  What the statute guarantees is an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [internal citation omitted]; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).  Thus, a state satisfies the FAPE standard "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." (Rowley, 458 U.S. at 203).


            Similarly, 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]; see Viola v. Arlington Cent. Sch. Dist., 414 F. Supp. 2d 366, 381-82 [S.D.N.Y. 2006]).  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, petitioner, as the party seeking relief at the impartial hearing, has the burden of persuasion.


            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).


I will now address petitioner's claim that the impartial hearing officer erred when she determined that respondent offered petitioner's son a FAPE in the LRE.  The impartial hearing officer found that respondent complied with the procedural requirements set forth in the IDEA.  Petitioner does not challenge this finding.  Nor does petitioner challenge the impartial hearing officer's finding that the goals and objectives on the student's November 2005 IEP were appropriate.  The impartial hearing officer also found that the November 10, 2005 IEP was reasonably calculated to enable the student to receive educational benefits.  I note that the student's present levels of performance on the November 10, 2005 IEP identify his difficulty with attention, focus, authority, self-management and social judgment (Dist. Ex. 8 at pp. 6-8).  The IEP also describes the student's difficulty with tasks that require prolonged concentration (Dist. Ex. 8 at p. 7).  The IEP contains annual goals and short-term objectives that include improving the ability to attend, improving self-awareness and self-concept, improving social skills and socially acceptable behavior and also improving decision-making skills (Dist. Ex. 8 at pp. 8-10).  I further note that the assistant to the superintendent for special education testified that Brennan would be able to implement these goals due to its smaller setting and school-wide behavior intervention program (Tr. pp. 298-99).


The IEP reflects that the student's cognitive abilities are in the average range of functioning and his academic achievement test scores are in the average to superior range, and that he did exhibit trouble on tasks that required prolonged concentration (Dist. Exs. 8 at p. 3).  The IEP also reflects that he was inattentive and exhibited aggressive, noncompliant, inappropriate and disruptive behaviors (Dist. Exs. 17 at p. 1, 24 at p. 3).  To address these issues, the CSE recommended on the student's IEP that he be placed in an 8:1+1 special education class at Brennan beginning December 12, 2005 through the remainder of the school year (Dist. Ex. 8 at p. 1), while temporary home instruction continued until the placement was made (id.).  It should be noted that the private evaluation performed on the student also recommended that the student be placed in a small, structured therapeutic setting with supervision and behavioral supports (Dist. Ex. 16 at p. 4).


            The principal of Brennan is a certified school psychologist, administrator and school district superintendent (Tr. pp. 593-94).  Brennan is a one-floor therapeutic middle school program (Tr. pp. 594-95).  Most classrooms are composed of eight students, one teacher and one aide, though some classrooms have additional paraprofessionals (Tr. p. 595).  The principal characterized Brennan as a Regent's diploma academic track program "commensurate" with New York State regulations, and students take all required state assessments (Tr. pp. 595, 604-05).  In addition, Brennan offers physical education, wood shop, home and careers, Spanish and a variety of clubs (Tr. pp. 629-30).


            Brennan uses a building-wide behavior management plan and, although some students' plans may have individual differences, all student behaviors are monitored every 15 minutes (Tr. p. 600).  Each day students have the opportunity to earn a grade for their behavior that corresponds to points that go toward participation in desired activities (Tr. pp. 601-02).  Parents "sign off" on the behavior programs used with the students, and parents and teachers communicate via a notebook that goes home with each student (Tr. pp. 602-03).  A Consult program consists of a consultant psychologist who provides therapeutic intervention services five days per week (Tr. p. 599).  The psychologist goes into classrooms, meets with teams that provide services to students, and offers to meet individually with families (id.).  The psychologist is accessible to students' outside support personnel and assists families in accessing services (Tr. pp. 635-36).  If it is determined that a student needs a more intensive therapeutic approach than the Consult program, Brennan offers a day treatment program that is supported by staff from the Office of Mental Health (Tr. pp. 612-13). 


            The record shows that while at respondent's middle school, the student exhibited difficulty during unstructured times such as in the hallways between classes and in the cafeteria (see Dist. Exs. 37, 38).  The principal of Brennan stated that during such times at Brennan there is "tremendous vigilance" from support staff, classroom teachers and paraprofessionals who keep track of the students' behavior (Tr. pp. 605-06).  Lunch periods consist of smaller groups of students than typical general education schools and each table is assigned a paraprofessional (Tr. p. 607).  The principal characterized Brennan's program as "very structured" and stated that there is always supervision in order to minimize the opportunity for negative incidents (Tr. p. 611). 


For students who exhibit difficulty with impulsivity, Brennan uses a cognitive therapeutic approach to mediate a situation (Tr. p. 608).  If more than one student was involved in a situation, those students and their counselors meet "right then" and provide the students with the opportunity to express their perception of the situation and allow the other students to express how they perceived the situation (id.).  Brennan also offers an alternative learning site (ALS) that contains three to four staff members, where students can go if they feel overwhelmed by the present environment (Tr. p. 610).  In the ALS a student can "cool down" and receive counseling and academic instruction (id.). 


The principal of Brennan testified as to how Brennan would implement the annual goals and short-term objectives contained in the student's IEP, and that many of the student's goals were very similar to goals Brennan implements every day (Tr. pp. 644-49, 658).  The principal of Brennan further testified that because of Brennan's small size and accessibility of support staff, it is able to provide immediate support to students (Tr. pp. 618-20).  She also testified that Brennan is therapeutic in the way it approaches a student's behavior by looking at the antecedent, the behavior and the consequence (Tr. pp. 621-22).  Respondent's assistant to the superintendent for special education also testified that Brennan would be able to implement these goals due to its smaller setting with its school-wide BIP of rewards for attending (Tr. pp. 298-99).


The private licensed psychologist who testified on behalf of petitioner stated that the student needs a structured behavior plan, frequent feedback and consequences built into his program (Tr. pp. 836, 839, 861-62).  He also stated that the student needs daily progress reports and that a smaller class size and additional adult support in the classroom would be beneficial (Tr. pp. 840, 859).  As described above, Brennan provides its students with these recommended services.  The psychiatric report suggested in part a smaller, therapeutic classroom setting with increased supervision and supports for the student (Dist. Ex. 16 at p. 4).  Brennan offers services commensurate with this recommendation.  Based upon the information before me, I agree with impartial hearing officer that the offered program and placement of Brennan by respondent's CSE was reasonably calculated to enable the student to receive educational benefits. 


I also agree with the impartial hearing officer that the recommended placement at Brennan is in the LRE  (Tr. pp. 629-30).  The principal of the middle school the student attended during sixth grade testified that it was not a successful year for the student either behaviorally or academically (Tr. p. 344).  The student failed or nearly failed all his academic classes and there were "numerous" instances of inappropriate behaviors that ranged in severity (Tr. p. 345).  She further testified that although the student had behavioral problems at school in the past, academically he had been "holding his own" until sixth grade when his academic performance significantly decreased (Tr. p. 347).  She reported that in either December 2004 or January 2005 she attempted to discuss her concerns that the student "was not behaving normally" with his parents, but that they did not agree that he had a "condition" (Tr. pp. 429-31).


            The principal also testified that faculty "pulled out all the stops" to assist the student (Tr. p. 363).  The student's teachers met on a regular basis to address his poor grades.  The middle school guidance counselor met with the student approximately one time per week, sometimes more frequently, and met with his teachers two times per week for team meetings (Tr. pp. 349, 351-52).  The student's teachers developed activities for the student that allowed for physical movement during class to help sustain his attention (Tr. p. 353).  The student was assigned a personal dean of discipline who was available to the student whenever the student needed or wanted to see him (Tr. p. 365).  The middle school assistant principal, two school social workers and a psychologist were also made available to the student (Tr. pp. 365, 367).  Middle school faculty also tried a student plan to help the student organize and complete his homework (Tr. pp. 354-55).  They tried to follow the student's parents' suggestions on how to improve his behavior (Tr. pp. 363-64).  In February 2006, respondent offered to place the student in an inclusion class, but the student's parents opted to try 1:1 aide services instead (Tr. pp. 448-50).  The student tried an adjusted schedule so that he attended school for a modified day and received 1:1 aide services (Tr. pp. 382-83).  A BIP was developed and implemented that required the student's teachers to change their teaching style to accommodate the student (Tr. pp. 383-84, 390, 404-05, 526-27; Dist. Ex. 25).  The student's aides were trained in use of his BIP (Tr. pp. 527-28).  The principal testified that by the time she referred the student for placement at Brennan, the school had exhausted all forms of consequences available to it, and utilized every professional that was engaged with the student, without successfully producing any change (Tr. p. 379).  The principal and school psychologist stated that the middle school could not meet the student's needs (Tr. pp. 391, 703). 


I agree with the impartial hearing officer that the special education program and placement recommended in the November 10, 2005 IEP provided personalized instruction with sufficient support services to permit the student to benefit educationally in the LRE, and that respondent offered the child a FAPE (see IHO Decision, pp. 16, 22, 28). 


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






Albany, New York




November 27, 2006





1 On December 3, 2004, Congress amended the IDEA, which became effective on July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004), Pub. L. No. 108-446, 118 Stat. 2647 [2004]).  Since the underlying events at issue in this appeal occurred prior to the effective date of the 2004 amendments, the new provisions of IDEA 2004 do not apply and citations contained in this decision are to the statute, as it existed prior to the 2004 amendments, unless otherwise specified.


2 The term "free appropriate public education" means special education and related services that-

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.

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


3 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.