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The State Education Department
State Review Officer

No. 06-136

 

Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the North Colonie Central School District

 

Appearances:

Peter J. Scagnelli, Esq., attorney for petitioners

Young, Sommer, Ward, Ritzenberg, Baker & Moore, LLC, attorney for respondent, Kenneth S. Ritzenberg, Esq., of counsel

DECISION

            Petitioners appeal from the decision of an impartial hearing officer, which found that respondent offered their son a free appropriate public education (FAPE)1 in the least restrictive environment (LRE)2 for the 2005-06 school year.  Respondent cross-appeals from a portion of the impartial hearing officer's decision that ordered respondent to engage in additional transition planning, including the exploration of post-secondary schools, for petitioners' son.  The appeal must be dismissed.  The cross-appeal must be sustained.

            At the commencement of the impartial hearing on November 17, 2005, the student was 17 years old and attending 11th grade at respondent's high school (Tr. p. 14).  The student was diagnosed with an autistic disorder between the ages of three and four while he attended a specialized preschool program (Tr. pp. 1724, 2008; Dist. Ex. 11 at p. 2; see Parent Ex. F at p. 5).  As a result of the student's autistic disorder, he has significant difficulty attending to external stimuli (Dist. Ex. 71 at p. 5).  He is described as a "wonderful young man" who is a hard worker, but who exhibits significantly impaired functional communication skills, language skills, written expression, reading comprehension and social skills (Tr. pp. 316, 582, 854; Dist. Ex. 71 at p. 5). 

            In compliance with the pendency provision of the Individuals with Disabilities Education Act (IDEA)3 (20 U.S.C. §§ 1401-1482; see 20 U.S.C. § 1414[j]), the student receives daily assistance of a full-time 1:1 aide while attending a self-contained special class for English4 and general education classes for Social Studies,5 Science, Math, Orchestra, Physical Education, Computer Graphics and Studio Art, pursuant to his 2004-05 individualized education program (IEP), dated June 17, 2004, which constitutes the student's last agreed upon IEP (Tr. pp. 179-85, 626; Dist. Exs. 34; 54; 66 at pp. 2-3; 67 at pp. 1-2).  The student also receives academic instruction support in a self-contained 12:1 Academic Skills Class (ASC), speech-language therapy and occupational therapy (OT) (Tr. pp. 183-85, 751-56; Dist. Ex. 34).  The student's classification and eligibility for special education services as a student with autism are not in dispute in this appeal (see 8 NYCRR 200.1[zz][1]).

            In June 1992, respondent's Committee on Preschool Special Education (CPSE) identified the student as speech impaired and recommended placement at a specialized preschool program (Parent Ex. H).  During preschool, the student received speech-language therapy, OT, and music therapy (Parent Exs. K at pp. 2-3; FFF at p. 2).  In May 1993, respondent's CPSE and Committee on Special Education (CSE) changed the student's classification to autism (Parent Ex. M).  The student began kindergarten in respondent's district in the 1993-94 school year when he was five years old (Parent Exs. I, O).

            When the student was six years old, petitioners obtained an independent psychological evaluation as a second opinion to assist with planning his school program and to address petitioners' request to include music therapy in the 1994-95 IEP (Tr. p. 48; Dist. Ex. 1 at pp. 1, 4-5).  The private psychologist, a certified school psychologist, characterized the student's autism as "mild to moderate" in severity (Dist. Ex. 1 at pp. 4-5).  At the time, the private psychologist opined that the student's IEP, which placed the student in first grade with "learning resource assistance," met the student's needs (Dist. Ex. 1 at pp. 2, 5).  He recommended a continuation of the student's music therapy (Dist. Ex. 1 at p. 5).  In second grade, petitioners' son started private violin lessons for one session per week (Tr. pp. 1318, 1321, 1323, 1360).

            The student repeated third grade, and in summer 1998 respondent referred him at petitioners' request to a private psychologist for an independent psychoeducational evaluation (Tr. pp. 49, 1733; Dist. Ex. 2 at pp. 1-2).  At that time, the student participated in a general education classroom with the assistance of a full-time 1:1 special education intern, and received daily resource room services, music therapy, OT, and speech-language therapy (Dist. Ex. 2 at p. 2).  The private psychologist reported that the student exhibited great disparity between his significantly delayed language skills and nonverbal problem-solving abilities (Dist. Ex. 2 at p. 7).  The report noted that the student did not engage in spontaneous speech during much of the school day if it was not required and suggested specific recommendations to improve the student's speech repertoire (Dist. Ex. 2 at pp. 7-8).  She opined that certain activities in the general education classroom were "not very useful" to the student, and although his parents wanted him to participate as much as possible in general education, his growth would be more "efficient" if he engaged in activities geared more toward his knowledge and skill level (Dist. Ex. 2 at p. 8).

            In fall 2000 during sixth grade, respondent referred the student to another private psychologist for an independent psychological evaluation (Tr. pp. 54-55; Dist. Ex. 11 at p. 1).  At that time, the student attended a general education class with the assistance of a full-time 1:1 aide and received music therapy, speech-language therapy, physical therapy and OT (Dist. Ex. 11 at p. 1).  The private psychologist administered language, academic achievement, and nonverbal intelligence assessments and concluded that the student's scores demonstrated average nonverbal skills and "extremely impaired" language and communication skills (Dist. Ex. 11 at pp. 1, 6).  The private psychologist characterized the student's receptive and expressive language skills at the two to three year level, but noted that his "functional use of speech is certainly at a much lower level" (Dist. Ex. 11 at p. 6).

            The private psychologist opined that although the student had shown the ability to learn academic skills, he received "minimal benefits" from the amount of general education programming he received due to the degree of his language impairment and his need for curriculum modifications (Dist. Ex. 11 at p. 6).  She noted that the student needed "more individualized, specialized teaching and greater preparation and structuring for his time in the general education setting" and indicated that his current program reinforced his tendency to disengage, become self-absorbed, and exhibit stereotyped language and motor mannerisms (Dist. Ex. 11 at pp. 6-7).  The private psychologist recommended, among other things, integrating the student in only a few carefully selected subjects and pre-teaching the general education material (Dist. Ex. 11 at p. 7).  She noted that the student would not "be able to learn the curriculum at the sixth grade level" and recommended he spend the remainder of the school day in the "[r]esource [r]oom" learning functional and academic skills appropriate to his needs and strengths (Dist. Ex. 11 at p. 7).  She further recommended an emphasis on improving his functional speech skills and exploring alternative forms of communication (id.).

            The student entered seventh grade at respondent's junior high school in the 2001-02 school year (Dist. Ex. 14 at p. 1).  According to his IEPs for the seventh and eighth grades, the student participated in a "modified, and at times alternate academic" general education program for Math, Science, Social Studies, Orchestra, Art and Technology (Tr. pp.  68-69; Dist. Exs. 14 at p. 4; 21 at p. 4).  Both IEPs recommended that the student receive the assistance of a full-time 1:1 aide throughout the school day, English in a self-contained special class, and speech-language therapy, OT and music therapy in a separate location (Tr. pp. 68-69; Dist. Exs. 14 at pp. 1, 4; 15; 21 at pp. 1, 4, 11).  Both IEPs also provided for academic instruction support in a self-contained ASC classroom (Dist. Exs. 14 at pp. 2, 4; 21 at pp. 1-2, 4).  In addition, both IEPs recommended modifications to all areas of his curriculum, including testing, assignments, and instruction, as well as incorporating various modifications and accommodations to the student's classroom (Dist. Exs. 14 at p. 3; 21 at p. 3).  Respondent's assistant director of pupil services (assistant director) testified that the student received instruction according to his skill level, which varied dependent on the subject (Tr. pp. 31, 71-73).

            Prior to January 2003, a private psychologist with autism expertise evaluated the student (Tr. pp. 96-97; Dist. Ex. 25).  In February 2003, the private psychologist met with petitioners, the student's content area teachers, the student's special education teacher, the student's hall principal, and respondent's assistant director to review the results (Tr. pp. 86, 97-99).  Although petitioners did not give the psychologist permission to give respondent a copy of the evaluation report, the psychologist discussed and summarized her findings at the meeting (id.).  Respondent's assistant director testified that according to the psychologist, the student would have a "very difficult time" in Regents courses due to his reading level, and that the psychologist recommended a more functional curriculum and to work on skills that involved the student's strengths, such as an art class or technology class (Tr. pp. 98-99). 

            For the student's ninth grade school year in 2003-04, the CSE recommended that the student participate in a general education classroom for Math, Social Studies 9, Science and Orchestra, receive the assistance of a full-time 1:1 aide throughout the school day, and attend a self-contained special class for English and a self-contained 12:1+1 ASC for academic instruction support (Tr. pp. 280, 283-84, 754; Dist. Ex. 28 at pp. 1, 4, 14, 16).  As recommended in the student's seventh and eighth grade IEPs, the 2003-04 IEP recommended that the student receive a modified or alternate program, with modifications to all areas of his curriculum, including testing, assignments, and instruction, as well as incorporating various modifications and accommodations to the student's classroom, and that his curriculum and materials would be determined by his current instructional level and the goals and objectives in his IEP (Dist. Ex. 28 at pp. 2-4).  The CSE also recommended speech-language therapy, OT and music therapy, and a variety of testing accommodations (Dist. Ex. 28 at pp. 1, 3).  The IEP included a transition plan recommended by the CSE, and at petitioners' request the CSE attached student outcome statements prepared by petitioners to the IEP (Tr. pp. 116-18; Dist. Ex. 28 at pp. 12-13).  The student's IEP documented that the student would pursue an IEP diploma (Dist. Ex. 28 at p. 1).  The record reflects that during summer 2003, petitioners obtained private math and reading services for the student at the Kumon Math and Reading Center (Tr. pp. 1574, 1582). 

            In January 2004, respondent's occupational therapist completed an OT update of the student (Dist. Ex. 31 at p. 1).  The update documented the student's areas of continued need, including copying material from the blackboard, communicating with peers, appropriately obtaining assistance in the classroom, obtaining the correct materials for class and sustaining attention in the classroom (Dist. Ex. 31 at pp. 1-2).  The occupational therapist stated that when the student was in the self-contained ASC, he was focused and followed directions at times, and she opined that this ability was related to the student's level of interest in the activity (see Dist. Ex. 31 at p. 1).  She also reported that the student greeted classmates in the special class, but required assistance to communicate with peers in the hallway (id.).  The occupational therapist reported that the student would benefit from further intervention in a number of other activities of daily living, including the following:  preparing a meal, doing laundry, opening doors with a key, making/answering a phone call, taking a telephone message, making his bed, changing his linens, showering/hygiene needs, selecting his clothing, fire safety issues, using money appropriately, reading and gathering information from a telephone book or newspaper or menu, responding to a job advertisement, and preparing a resume (Dist. Ex. 31 at pp. 2-3).

            In April 2004 when the student was 16 years old, respondent's speech-language therapist administered the Peabody Picture Vocabulary Test (PPVT) and the Test of Auditory Comprehension of Language (TACL), which yielded age equivalent scores of 6-4 years and 5-8 years, respectively (Dist. Ex. 32).  The report included the student's previous test scores from April 2003, which yielded age equivalent scores of 6-3 years on the PPVT and 5-8 years on the TACL (id.).  The speech-language therapist reported that although the student used a picture exchange communication system (PECS) to assist him in ordering his lunch, the student was unable to expand the use of PECS during the current school year due to his "academic workload" (Dist. Ex. 32 at p. 1).  She also reported that the student did not use much verbal language, had difficulty expressing his intentions, and required a high level of support to use the language skills he had (Tr. pp. 539, 541; Dist. Ex. 32).  She opined that the student spent a significant portion of the school day on academics but continued to exhibit large gaps in vocabulary and language skills (Dist. Ex. 32).

            For the student's 2004-05 IEP for tenth grade, dated June 17, 2004, the CSE continued to recommend a combination of general education, self-contained, and ASC settings, classroom and testing accommodations, the assistance of a full-time 1:1 aide throughout the school day, OT and speech-language therapy (Dist. Ex. 34 at pp. 1, 4, 10).  The student participated in a general education classroom for Math, Science, Social Studies 10, Orchestra, Health and Physical Education (see Dist. Ex. 39 at p. 1).  The CSE recommended that the student continue to receive English in a self-contained special classroom and academic support instruction in a self-contained 12:1 ASC setting (Tr. pp. 625-28, 752-56, 765-66; Dist. Ex. 34 at pp. 1, 4).  The IEP indicated that the student continued to require modifications to his curriculum, tests and exams to meet his instructional level and learning style (Dist. Ex. 34 at p. 3).  It also noted that the student was more successful in a small group instructional setting for language intensive courses such as English and Social Studies (id.).  The IEP reflected that the student was expected to graduate in June 2007 with an IEP diploma (Dist. Ex. 34 at p. 1). 

            In summer 2004, petitioners requested and obtained an independent psychoeducational evaluation of the student from the same private psychologist who conducted the student's psychoeducational evaluation in summer 1998 (Tr. p. 136; Dist. Exs. 35; 36; compare Dist. Ex. 2 at p. 8 with Dist. Ex. 39 at p. 8).  The psychologist administered multiple assessments, including the Peabody Picture Vocabulary Test-Third Edition (PPVT-III), which measured his receptive vocabulary skills, and selected subtests of the Wechsler Intelligence Scale for Children-Fourth Edition (WISC-IV), Woodcock Reading Mastery Test-Revised (WRMT-R), and the Woodcock-Johnson III Tests of Achievement (Dist. Ex. 39 at p. 2).  She interviewed the student and his parents; consulted with the student's special education teacher, his speech-language therapist, respondent's school psychologist, and respondent's supervisor of special education; observed the student on two occasions at school; and administered an informal reading assessment (Dist. Exs. 36; 39 at p. 2).

            The psychologist reported that similar to "all earlier evaluations" and her own findings in 1998, the student exhibited average nonverbal performance and "minimal" verbal aptitude (Dist. Ex. 39 at pp. 5, 7).  She noted that academically the student spelled relatively well, wrote simple sentences in response to cues, and had "quite well developed" math computation skills (Dist. Ex. 39 at p. 6).  The evaluation revealed that the student read and understood text at a second grade level and that his written expression ability in response to picture cues was also at a second grade level (Dist. Ex. 39 at pp. 6-7). She identified the student's language, reading comprehension and written expression needs (Dist. Ex. 39 at pp. 6-7).  The evaluator did not report a WISC-IV verbal comprehension index score because the student's subtests yielded scaled scores of one (Dist. Ex. 39 at p. 5).

            The evaluator reported that the student appeared to be "disconnected" socially and did not interact with peers without prompts to do so (Dist. Ex. 39 at pp. 2, 7).  The psychologist reported that during her school-based observations of the student in September and November 2004, she did not observe the student interacting with other students in the hallways and he required prompting to respond to peers who attempted to interact with him (Dist. Ex. 39 at p. 2).  She opined that the student appeared to be less responsive to others around him than she had observed in the 1998 evaluation (Dist. Ex. 39 at p. 7).  In fall 2004, she noted that he did not react to other students near him, look at, or show interest in a peer's verbalization (id.).

            The psychologist acknowledged that although the student's parents desired that he participate in a Regents curriculum, in her opinion she was unsure how that would be accomplished because, when she observed the student in his general education academic classes, she did not find ways that the material could be made understandable or meaningful to the student (Dist. Ex. 39 at pp. 7-8).  In particular, the psychologist noted that with a "great amount of drill" the student "could memorize short answers to factual information that is the focus of his [Social Studies] or Science, but it doesn't seem a good use of his time given his enormous needs around language and communication" (Dist. Ex. 39 at p. 8).  The psychologist provided recommendations for the student's reading and math program and suggested that facilitating his drawing skills may improve his communication abilities (id.).  The report identified his social skills and social communication needs and concluded that the student's educational program should focus primarily on his difficulty with communication (Dist. Ex. 39 at pp. 1, 2, 7).

            After the completion of the evaluation, the psychologist met with the following group on December 2, 2004, to review her findings and recommendations: petitioners; the student's special education teacher, speech-language therapist and self-contained English class special education teacher; and respondent's supervisor of special education, school psychologist and assistant director (Tr. pp. 141-46; see Dist. Ex. 41).  After the meeting, respondent advised petitioners that based upon the psychologist's recommendations, the student's program would be refined to "best meet [the student's] needs" and that they would be contacted to review the proposed changes to his program (Dist. Ex. 41).

            The CSE convened on January 28, 2005, to review the proposed changes to the student's 2004-05 IEP (Dist. Ex. 44).  Respondent's assistant director testified that the CSE prepared the draft IEP based upon the recommendations from the most recent psychoeducational evaluation report, the student's classroom teachers and his therapists (Tr. p. 151).  The CSE's proposed changes to the student's IEP included the addition of counseling for one session per week in a group and increasing the student's participation in a self-contained setting (compare Dist. Ex. 34 at p. 1 with Dist. Ex. 44 at p. 1).  The CSE proposed that the student would continue to receive the assistance of a full-time 1:1 aide throughout the school day and remain in the general education setting for Math, Orchestra, Food Processing, and Computer Graphics, but recommended that he attend a self-contained setting for Science and Social Studies in addition to the self-contained setting he already attended for English and for his ASC academic instruction support (Dist. Ex. 44 at p. 5).  The CSE also recommended a functional curriculum to address the student's social, health/safety, hygiene, and basic communication and occupational skills needs as identified in the 2004 psychoeducational evaluation and that the student work on social/communication skills (Dist. Ex. 44 at pp. 2-5).  The CSE further recommended that the student participate in a weekly social skills development group for one session per week (Dist. Ex. 44 at pp. 1, 3).  The CSE continued to recommend speech-language therapy and that the student pursue an IEP diploma (Dist. Ex. 44 at pp. 1, 5).

            Petitioners rejected the CSE's proposed changes to the student's 2004-05 IEP and, by letter dated January 28, 2005, requested an impartial hearing (Dist. Ex. 45).  Respondent advised petitioners by letter dated February 2, 2005, that the proposed changes discussed at the January 2005 CSE meeting were not final recommendations and that no changes had been implemented to the student's 2004-05 IEP program (Dist. Ex. 46).  Respondent's letter indicated that the CSE needed another meeting to complete the discussions, but that petitioners also had the right to request a due process hearing (id.).

            On March 11, 2005, the CSE reconvened to complete the discussions about the proposed changes to the student's 2004-05 IEP program, as well as to address a recent OT assessment completed in February 2005, which reported that the student did "very well with smaller group classes[,]" and no longer demonstrated "any significant OT or sensory integrative needs[,]" and recommended a discontinuation of OT services (Dist. Exs. 47 at p. 2; 49 at p. 1; 50 at p. 1).  As noted during the January 2005 meeting, respondent's CSE recommended placing the student in a self-contained class for Social Studies and Science, discontinuing OT, and adding a more functional curriculum to address the student's significant language, social, communicative, and functional needs as set forth in the most recent psychoeducational report (see Dist. Exs. 49 at pp. 2-3, 5-7; 50 at pp. 2-3, 5-8; see also Dist. Ex. 39).  Petitioners disagreed with the proposed changes, and although the CSE continued to recommend a self-contained class for Social Studies and Science and a more functional curriculum, the CSE agreed to continue to provide OT as consultant services twice per month for 30 minutes per session (Dist. Exs. 49 at p. 7; 50 at p. 1).  The CSE continued to recommend an IEP diploma for the student (Dist. Ex. 50 at p. 1). 

            Petitioners requested an impartial hearing on March 14, 2005 (Dist. Ex. 51 at p. 2).  Petitioners disagreed with the proposed reduction of the student's participation in the general education setting because it segregated him from friends and peers, and the modified curriculum did not allow the student to qualify to take the Regents exams or Regents Competency Tests (RCTs) (Dist. Ex. 51 at p. 1).  As a proposed solution, petitioners suggested that respondent tape record class lectures, use computer technologies to assist the student with his reading and writing, and use New York State's Autism Program Quality Indicators (Dist. Ex. 51 at p. 2).  Petitioners noted that with aide support and classroom accommodations, the student could continue a basic or Regents curriculum to work toward a "high school diploma" (Dist. Ex. 51 at p. 2).  In March 2005, petitioners obtained private tutoring services to assist the student in his Social Studies 10 and English classes (Tr. pp. 1915-16; Dist. Ex. 53 at p. 2).

            At petitioners' request, respondent arranged to mediate the parties' dispute (Tr. pp. 178-79; see Dist. Ex. 54).  By letter dated April 7, 2005, petitioners informed respondent that the mediation and due process proceedings were "on hold" in an effort to continue to work with respondent to resolve the disagreements (Tr. pp. 194-95; Dist. Ex. 55).

            On August 1, 2005, respondent's CSE convened to develop the student's 2005-06 IEP for 11th grade (Dist. Ex. 59 at p. 1).  The IEP indicated that the student's impaired language development affected his reading comprehension, math concept, written expression, speech skills, social skills and attentional skills, which adversely affected his academic performance (Dist. Ex. 59 at p. 3).  The IEP also indicated that the student needed to develop his social communication and functional skills (id.).  The IEP noted that the student did not interact socially with peers and needed more opportunities in small group and less formal settings, such as in the self-contained and ASC classrooms, to spontaneously interact with peers (Dist. Ex. 59 at p. 4).  The CSE continued to recommend a functional curriculum to address the student's "hygiene, social, health/safety, basic communication and occupational skills in order for him to learn to express his wants to facilitate independence" (Dist. Ex. 59 at p. 4).  The IEP contained numerous program modifications, accommodations, testing accommodations, a transition plan, and annual goals and short-term objectives in the areas of reading comprehension, written language, independent function, expressive language, receptive language, social studies, counseling, and self-regulation (Dist. Ex. 59 at pp. 1-2, 4-6).

            The proposed 2005-06 IEP recommended continued placement in a combination of general education and self-contained settings, including a 15:1+1 self-contained ASC for 17.5 periods per week, the assistance of a full-time 1:1 aide throughout the school day, OT consultant services two times per month, and speech-language therapy three times per week in a group (Dist. Ex. 59 at p. 1).  According to the IEP, the student would participate in the general education setting for Math, Science, Studio Art, Orchestra, and Physical Education (Tr. p. 199; see Dist. Exs. 59 at p. 8; 44 at p. 5; 50 at p. 5; 71 at p. 4).  The CSE recommended that the student receive English and Social Studies 106 in a self-contained special class and academic instruction support in a self-contained ASC setting (Tr. pp. 199-200; Dist. Exs. 59 at pp. 2, 8; 60).  The IEP contained recommendations for modifications to all areas of the student's curriculum based on his present level of instruction and significant social and functional communication needs (Dist. Ex. 59 at pp. 2-5).  Compared to the IEPs developed for the student during the 2004-05 school year, the 2005-06 IEP decreased the student's participation in the general education setting by recommending that the student receive Social Studies 10 in a self-contained classroom (see Dist. Exs. 28 at pp. 1, 4, 16; 34 at pp. 1, 4; 44 at pp. 1, 5; 50 at pp. 1, 5; 59 at pp. 1-2, 8; 60).  The IEP continued to reflect that the student would pursue an IEP diploma (Dist. Ex. 59 at p. 1). 

            Petitioners rejected the proposed 2005-06 IEP and, by letter dated August 22, 2005, petitioners "re-activated" their March 14, 2005 due process request and asked that the student remain in his "current educational placement centered on the Basic Regents Curriculum" (Dist. Ex. 62; see Dist. Ex. 66 at pp. 2-3).  The letter advised respondent that the "Mediation Center" would initiate the process to "schedule a meeting to resolve our disagreement on the proposed 2005-2006 IEP" (Dist. Ex. 62).  Mediation did not resolve the disagreements (Tr. p. 208).

            During fall 2005, the student attended private social intervention and recreational programs (Tr. pp. 1451, 1463, 1468; Parent Ex. AAA).  The director of the program testified that within the student's social skills group, it was necessary to modify his goals from those of the group (Tr. pp. 1474-79).  She testified that she did not observe the student to independently initiate conversations with peers and that he often required either a verbal or visual prompt to provide a response (Tr. p. 1491).  She recommended that a component of the student's program should focus on his use of social skills within respondent's school (Tr. p. 1497). 

            Also in fall 2005, petitioners requested that respondent change the provision of the student's speech-language therapy and OT services from "pull-out" services to "push-in" services during the student's general education classes (Dist. Exs. 68; 69 at p. 4).  The CSE convened on November 1, 2005, to discuss petitioners' requested changes and indicated that at that time, the student received his speech-language therapy in the self-contained English class and in a group (Tr. p. 213; Dist. Ex. 71 at pp. 1-2).  Due to time constraints, the CSE did not discuss the student's OT services and did not agree to change the student's speech-language therapy to "push-in" services during general education classes (Tr. pp. 225-26, 827-28). 

            The CSE developed an IEP at the November 2005 meeting that recommended the same combination of general education, self-contained special classes, and self-contained ASC settings as set forth in the August 1, 2005 IEP for the 2005-06 school year, including the continued assistance of a full-time 1:1 aide throughout the school day and related services of speech-language therapy and OT consultant services (Tr. pp 199-202, 213-15; compare Dist. Ex. 59 at p. 1 with Dist. Ex. 71 at p. 3).  The CSE also recommended counseling as an additional related service for one session per week in a group setting, which the CSE had previously recommended at the January 2005 meeting (Dist. Ex. 71 at pp. 1-3).  The CSE meeting minutes noted that respondent's assistant director explained to petitioners that the November 1, 2005 IEP included some changes in wording, which respondent had highlighted on the draft given to petitioners at the meeting, as compared to the 2005-06 IEP developed on August 1, 2005 (Dist. Ex. 71 at p. 1; compare Dist. Ex. 59 at pp. 1-5 with Dist. Ex. 71-A at pp. 1-5).

            The impartial hearing in this matter commenced on November 17, 2005, and, after 17 days of testimony, concluded on June 26, 2006 (Tr. pp. 1, 2713).  In his decision, the impartial hearing officer first determined that in accord with the U.S. Supreme Court's decision in Schaffer v. Weast, 126 S. Ct. 528 (2005) on November 14, 2005, and the New York State Education Department's guidance memorandum, dated December 2005, petitioners properly bore the burden of persuasion in the administrative hearing as the party challenging the appropriateness of the student's 2005-06 IEP, including whether respondent offered the student's program in the LRE (IHO Decision, pp. 17-19; IHO Exs. I, II). 

            The impartial hearing officer concluded that respondent's recommendations in the 2005-06 IEP offered the student a FAPE in the LRE for the 2005-06 school year and he denied petitioners' following requests: to place the student in a full-time general education setting with a "Standard curriculum;" to change the student's diploma designation from an IEP diploma to a local high school or Regents diploma; to change the student's speech-language therapy and OT services from "pull-out" to "push-in" services during his general education classes; to tape record lectures; and to provide petitioners with additional in-school observations of the student (IHO Decision, pp. 51-52).  The impartial hearing officer also concluded that respondent complied with the procedural requirements of the IDEA in developing the 2004-05 and 2005-06 IEPs and that the evidence did not support petitioners' contention that they were denied a meaningful opportunity to participate in the CSE meetings or in the development of the IEPs (IHO Decision, pp. 21-23).

            In particular, the impartial hearing officer determined that respondent properly relied upon the results of the November 2004 psychoeducational evaluation, as well as the reports and recommendations of the student's teachers and therapists, to develop the student's 2005-06 IEP (IHO Decision, p. 24).  The impartial hearing officer noted that the record was devoid of any evidence, such as expert opinions or evaluations, that contradicted the findings and recommendations contained in the November 2004 evaluation or the opinion that the student was "not benefiting from mainstream classes except for math, and perhaps, science" (IHO Decision, pp. 24-25).  The impartial hearing officer also noted that the record did not contain any evidence to contradict "the consensus of experts and providers that [the student] required a small class structure to address very substantial language, reading, and writing deficits as well as substantial limitations with respect to social interaction" (IHO Decision, pp. 24-25).  The impartial hearing officer stated that the record also did not contain evidence to support petitioners' desire for the student "to participate in a Regents curriculum" or to pursue a "Regents or School diploma" (IHO Decision, pp. 24-25).

            Further, the impartial hearing officer concluded that the recommendations contained in the 2005-06 IEP to increase the student's participation in a self-contained setting and to add a more functional curriculum were consistent with the recommendations in the November 2004 psychoeducational report and were fully supported by the testimony of respondent's staff and special education providers (IHO Decision, pp. 26-37).  The impartial hearing officer found that the evidence "strongly supported" the CSE's determination to reduce the student's participation in the general education setting, noting the "minimal value" obtained by the student when he participated in a general education setting for "language based" courses, such as "English, social studies and science" (IHO Decision, p. 37). 

            The impartial hearing officer determined that the evidence demonstrated that respondent provided "numerous supplementary aides and services . . . in an effort to have [the student] succeed, including a full-time 1:1 aide" (IHO Decision, pp. 45-46).  In addition to the full-time 1:1 aide, the impartial hearing officer noted that the evidence amply supported that the following supplementary aides and services had been provided to the student throughout his participation in the general education setting:  "[n]ote taking, notes sent home, accommodations such as extended time for assignments, instructional feedback, teacher/service provider consultation, and visual aides" (IHO Decision, p. 46).  The impartial hearing officer also listed the testing accommodations provided to the student, which were also supported by the record (id.).  He concluded that "[n]otwithstanding these efforts, [the student] is not succeeding in regular social studies, having had the same course three times.  He has also failed science" (IHO Decision, p. 46).  In addition, the impartial hearing officer concluded that the evidence did not support petitioners' contention that the student would benefit from participation in a "regular English class or (social studies)" (sic) (IHO Decision, p. 47).

            The impartial hearing officer opined that the "dispute in this matter regarding LRE for [the student] necessarily implicates appropriate transition services" (IHO Decision, pp. 47-48).  The impartial hearing officer noted that since both petitioners' and respondent's concerns for the student's post secondary activity were consistent with the recommendations in the November 2004 evaluation report, which recommended development of the student's "communication and functional skills as well as developing and capitalizing on the student's skills in computers and art[,]" that respondent should include "exploration of post secondary school, including colleges, where [the student] can apply his special skills and pursue a vocational objective" (IHO Decision, p. 48).

            On appeal, petitioners contend that the impartial hearing officer erred in finding that respondent's 2005-06 IEP provided FAPE to the student in the LRE, and they list objections to the proposed IEP and to the impartial hearing officer's decision to support their contention.  Petitioners also allege that the impartial hearing officer improperly allowed respondent to present rebuttal witnesses despite placing the burden of persuasion at the administrative hearing on petitioners.  Petitioners agree with the impartial hearing officer's decision to the extent that it directed respondent to "engage in transition planning for [the student] that includes exploration of post secondary schools, including colleges, where [the student] can possibly apply his special skills and pursue a vocational objective." Petitioners request a reversal of the impartial hearing officer's decision, dated October 29, 2006, and adoption of petitioners' requested changes to the IEP.

            Respondent alleges that the impartial hearing officer's decision should be upheld, but cross-appeals the portion of the impartial hearing officer's decision that ordered respondent to engage in additional transition planning, including the exploration of post-secondary schools, for petitioners' son.  Respondent contends that the impartial hearing officer exceeded his authority in ordering the additional transition planning because petitioners did not raise the appropriateness of the student's transition planning at the impartial hearing. 

            The central purpose of the IDEA is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; see Schaffer, 126 S. Ct. at 531; 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).7  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]).

            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 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]).  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]). 

            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 students with disabilities (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 school district 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).

            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]).  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, 142 F.3d at 130), 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 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][2][i], 300.116[a][2]; 8 NYCRR 200.6[a][1]).

            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[a][2][i], 300.116[a][2]; 8 NYCRR 200.6[a][1]; see also Bay Shore Union Free Sch. Dist. v. T., 405 F. Supp. 2d 230, 239-40 [E.D.N.Y. 2005]; Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 144 [N.D.N.Y. 2004]).  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 IEP within a regular education program, with the assistance of supplementary aids or services (Mavis v. Sobol, 839 F. Supp. 968, 982 n.25 [N.D.N.Y. 1993]; 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 Daniel R.R./Oberti test for determining whether a school district has complied with the LRE requirement consists of two prongs: 1) whether the student can be educated in a regular classroom with the use of supplemental aids and services; and 2) whether the school district has mainstreamed the student to the maximum extent appropriate (Daniel R.R., 874 F.2d at 1048; see Oberti, 995 F.2d at 1215; Warton v. New Fairfield Bd. of Educ., 217 F. Supp. 2d 261, 273 [D.Conn. 2002]; A.S. v. Norwalk, 183 F. Supp. 2d 534, 542 n.8 [D.Conn. 2002]; Mavis, 839 F. Supp. at 982).  In determining whether a student with a disability can be educated satisfactorily in a regular class with supplemental aids and services, several factors should be considered, including:  "(1) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students in the class" (Oberti, 995 F.2d at 1217-18; see Mavis, 839 F. Supp. at 987-92).  Where a child is so disruptive in a regular education classroom that he significantly impairs the education of other children, then the regular education placement is not appropriate (see Oberti, 995 F.2d at 1217-18).  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 no disabled peers (Greer v. Rome City Sch. Dist., 950 F.2d 688 [11th Cir. 1991]).

            After carefully reviewing the entire record, I find that the impartial hearing officer, in a thorough, well-reasoned, and well-supported 52-page decision, correctly held that respondent's 2005-06 IEP offered the student a FAPE in the LRE and that the evidence did not support petitioners' contention that the student's LRE required placement in a "full-time general education program with a Standard curriculum" (IHO Decision, pp. 44-52).  As noted above, the IDEA LRE provision requires that school districts educate children with disabilities in the LRE by providing them with supports and services to enable them to participate in the general education environment "to the maximum extent appropriate" before removing them to a more restrictive self-contained class or school (20 U.S.C. § 1412[a][5][A]; see Grim, 346 F.3d at 379).  The impartial hearing officer properly applied the Daniel R.R./Oberti test to determine whether respondent complied with the IDEA LRE requirements when it recommended removing the student from his general education Social Studies class and placing him in a self-contained Social Studies class with the addition of a functional curriculum (IHO Decision, pp. 24-37, 44-47).  Based upon the record, I find that the evidence supports the impartial hearing officer's conclusion that respondent provided numerous supplementary aids and services, including but not limited to modifications, accommodations, and a full-time 1:1 assistant, to the student in an effort to allow him to remain in the general education Social Studies class, but that these efforts did not result in meaningful educational benefit to the student.  The CSE's decision to reduce the student's participation in the general education setting will allow the student's teachers and therapists to provide a more functional curriculum to address the student's significant social and communication needs, which comports with the recommendations in the most recent psychoeducational evaluation.  The CSE's recommendations in the 2005-06 IEP strike an appropriate balance between the general education and special education services required to meet the student's unique abilities and needs, while providing the student with educational benefits.

            The decision shows that the impartial hearing officer carefully considered all of the testimony and exhibits from both parties.  The record amply supports the impartial hearing officer's conclusion that respondent offered the student a program that was appropriate to his special education needs.  In short, based upon my review of the entire hearing record, I find that the hearing was conducted in a manner consistent with the requirements of due process and that there is no need to modify the determination of the hearing officer (34 C.F.R. § 300.510[b][2]; N.Y. Educ. Law § 4404[2]).  Therefore, I adopt the findings of fact and conclusions of law of the impartial hearing officer, with the following exception raised in respondent's cross-appeal (see Application of the Bd. of Educ., Appeal No. 03-085; Application of a Child with a Disability, Appeal No. 02-096). 

            With respect to respondent's cross-appeal, I agree that the appropriateness of the student's transition services was not raised by petitioners either before or during the lengthy impartial hearing and that the impartial hearing officer exceeded his authority in sua sponte raising the issue.  I disagree with the impartial hearing officer's opinion that the dispute over the LRE in this case "necessarily implicates appropriate transition services for the student" (IHO Decision, pp. 47-48).  Therefore, I will sustain respondent's cross-appeal and annul that portion of the impartial hearing officer's decision that ordered respondent to engage in additional transition planning, including the exploration of post-secondary schools, for petitioners' son.  However, I remind respondent of its obligation to develop appropriate transition services pursuant to the Regulations of the Commissioner of Education (8 NYCRR 200.1[fff], 200.4[d][2][ix]).

            THE APPEAL IS DISMISSED.

            THE CROSS-APPEAL IS SUSTAINED.

            IT IS ORDERED, that the impartial hearing officer's decision is annulled to the extent that it directed respondent to engage in additional transition planning, including the exploration of post-secondary schools, for petitioners' son.

Dated:

Albany, New York

 

__________________________

 

February 7, 2007

 

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 school, 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 The least restrictive environment (LRE) under the Individuals with Disabilities Education Improvement Act of 2004 requires, in general, that

[t]o the maximum appropriate, children with disabilities, . . . , are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child 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[a][2][i], 300.116[a][2]; 8 NYCRR 200.6[a][1]). 

3 Congress recently 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]).  Some of the relevant events at issue in this appeal occurred prior to the effective date of the 2004 amendments; however, some of the relevant events at issue in this appeal occurred after the effective date of the 2004 amendments.  Therefore, at times the new provisions of the IDEA apply.  Consistent with this, citations in this decision are to IDEA 2004, unless otherwise specified.

4 For purposes of clarity, the term "English" will be used in this decision to denote the student's participation in what is alternatively reflected in the record as English Language Arts, Read/Write, or English, as all of these terms were used in the record to refer to the student's participation in a high school English curriculum.

5 For purposes of clarity, the term "Social Studies" will be used in this decision to denote the student's participation in what is alternatively reflected in the record as Global Studies, Global History, U.S. History, history, and/or social studies, as all of these terms were used in the record to refer to the student's participation in the high school social studies curriculum.  Distinctions between the ninth grade and tenth grade curriculums will be made by using the terms "Social Studies 9" or "Social Studies 10."

6 The record reflects that the student failed Social Studies 10 during the 2004-05 school year and repeated Social Studies 10 during the 2005-06 school year (Tr. p. 746, 1010).

7 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.