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The State Education Department
State Review Officer

No. 06-139

 

  

 

  

 

 

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 East Islip Union Free School District

 

 

Appearances:

Deborah Rebore, Esq., attorney for petitioners

 

Guercio & Guercio, attorney for respondent, Bonnie L. Gorham, Esq., of counsel

 

DECISION

Petitioners appeal from a decision of an impartial hearing officer which determined that respondent's decision that their son was not eligible for special education services during the 2006-07 school year was appropriate and denied their request for reimbursement for private counseling and occupational therapy from July 2006 through the present.  The appeal must be dismissed.

 

At the commencement of the impartial hearing in September 2006, the child was five years old and attending a regular education kindergarten class in respondent's district (Tr. p. 1067).  He has diagnoses of Dysfunction of Sensory Integration (DSI) (Dist. Ex. 10), and Asperger's Disorder, one of five pervasive developmental disorders primarily related to social reciprocity and social interaction (Tr. p. 190).  His cognitive abilities are in the low average to high average range (id.).  Academic skills are not problematic for the child, as the record describes him as "excited" about learning (Tr. p. 1076).  He has excellent work habits in school as assigned tasks are completed immediately (Tr. p. 1077).  In addition, he reportedly transitions easily from one activity to the next (Tr. p. 1079).  Behaviorally, the record indicates that the child is a "very nice" boy who is easy to encourage and not overtly resistant to activities (Tr. p. 185).  Nevertheless, he reportedly has difficulty with sensory modulation and tends to either overreact or under-react to situations (Tr. p. 471).  The child reportedly displays sub-vocalization (Tr. pp. 73, 474) and echolalia (Tr. p. 382), and exhibits a sing-song lilting voice (Tr. p. 185).  Although the child's overall language skills appear appropriate and he is able to maintain a conversation in school (Tr. p. 882), the record reflects concern regarding his demonstration of social pragmatic skills (Dist. Exs. 11 at pp. 1-2; 14; 15 at pp. 5-6).  In school, the child has exhibited some inappropriate behaviors, such as touching another child, saying unkind words, attempting to take control of classroom learning centers, and exhibiting difficulty relinquishing that control (Tr. pp. 1081-82).  Although the child is reportedly impulsive, calls out of turn, plays with his shoelaces, knocks down blocks, and at times throws things (Tr. pp. 1113-16), his classroom teacher has implemented a behavior plan for him that offers greater incentive for the child to behave appropriately in class (Tr. pp. 1083-84).  The classroom teacher has also implemented a classroom-wide behavior management plan (Tr. pp. 1074-76).  The record notes that the child's classroom teacher has not needed the assistance of school support staff to respond to his behavior, and that his behavior has not impeded his ability to function in school (see Tr. pp. 1087-91).  At the time of the impartial hearing, the child was not classified as eligible for special education services and his classification is a matter of dispute.

 

In late 2003, just before the child turned three, petitioners obtained an occupational therapy evaluation for their son that offered a diagnosis of DSI (Tr. pp. 45-46).  During summer 2004, he received occupational therapy through the school district (Tr. pp. 50-52).  In September 2004, as the result of the recommendation of the child's pediatrician and pediatric neurologist that he be seen by a behavioral child psychologist, petitioners reported that the child began receiving weekly drama therapy at Kid Esteem, a private practice in Babylon, New York, that offers a cognitive behavioral approach delivered by a New York State licensed creative arts therapist (Tr. pp. 51, 368, 371-72; Parent Ex. E).  The child also received private occupational therapy (Tr. p. 51).

 

In 2004, having noted significant delays in the child's fine motor and social emotional functioning, respondent's Committee of Preschool Special Education (CPSE) determined that he met the criteria for classification as a preschool student with a disability (Dist. Ex. 2).  During the 2004-05 school year, respondent provided the child with occupational therapy two times per week at a sensory integrated gym (Tr. pp. 51-52).  He also received special education services at respondent's Early Childhood Center (ECC) in an integrated Montessori class comprised of 22 children with a regular education teacher and a special education teacher (Tr. pp. 52-53).  According to the child's mother, the integrated Montessori class at ECC was "a collaborative type of setting where there were children who received services in the classroom along with your general ed[ucation] population" (Tr. p. 52).  The child also received speech-language therapy and occupational therapy in the preschool program (id.). 

 

In May 2005, petitioners arranged for a private occupational therapy evaluation of their son because, according to the child's mother, respondent's occupational therapist suggested to her that she obtain an independent opinion regarding the child's DSI (Tr. p. 62).  The May 4, 2005 private occupational therapy evaluation report notes that the child's mother was concerned because staff at respondent's preschool indicated to her that the child might no longer be eligible for special education services for 2005-06, and she reportedly felt that her son continued to exhibit difficulties that would impinge on his ability to learn (Dist. Ex. 16 at p. 1).  The evaluator's clinical observation of the child supported a diagnosis of sensory modulation dysfunction (id. at p. 4).  She indicated that at times the child would seek sensory input, and at other times he would avoid it (id.).  The evaluator's recommendations included a combination of home programs and direct occupational therapy to regulate the child's significant difficulty with modulation of sensory stimulation/information and to develop coping strategies (id.).  Classroom modifications were also recommended by the evaluator to compensate for the child's sensory modulation difficulties, as was education for the school staff regarding his specific sensory needs (id. at p. 5). 

 

In May 2005, respondent's CPSE determined that the child would not be eligible to receive preschool special education services for the 2005-06 school year due to teacher reports of steady progress and because he had reached kindergarten age (Dist. Exs. 2 at p. 1; 15 at p. 3).  Petitioners decided to retain the child in preschool for the 2005-06 school year (Tr. pp. 108-09, 112).  At petitioners' expense, he attended the same Montessori program he had attended during the 2004-05 school year with the same teachers, but he attended as a regular education student and not as a preschool student with a disability (Tr. pp. 65, 1171-73).  The child's mother indicated that he began to "fall apart" as a regular education student during the 2005-06 school year (Tr. p. 65).  She also noted that he was expressing self-loathing comments, acting out physically and aggressively toward other children and things in class, and pinching himself to the point of bruising (Tr. pp. 65-68).  The child also reportedly did not have any friends in class (Tr. p. 66).  While the child's mother reported that he verbalized resistance about going to school, he never actually refused to attend (Tr. p. 691).

 

On January 20, 2006, the child's mother attended a parent-teacher conference (Tr. pp. 70-71).  The child's teachers reportedly indicated that academically he was "fine," but that his behavior was disruptive, compulsive, and all-consuming (Tr. pp. 72, 762).  On February 2, 2006, petitioners referred the child to respondent's Committee on Special Education (CSE) for an evaluation, citing concerns regarding his socialization behaviors (Dist. Ex. 28 at p. 1).

 

On March 3, 2006, respondent's education evaluator conducted a classroom observation in the child's integrated Montessori classroom (Dist. Ex. 8).  The classroom observation report indicates that the child was successful with fine motor activities, but he exhibited inappropriate behaviors and required frequent redirection, and his interactions with peers were often inappropriate (id.).  Nevertheless, the evaluator reported that the child's behaviors did not prevent him from completing his tasks and assignments (Tr. p. 1276).  The evaluator also found that the child easily transitioned from one activity to the next (Tr. p. 1277). 

 

On February 21, 2006, petitioners obtained a neuropsychological diagnostic autism spectrum evaluation to assist in providing recommendations for school and special education programming (Parent Ex. F at p. 1).  Results of administration of the Autism Diagnostic Observation Schedule (ADOS) Module #3, placed the child "in the diagnostic range for an autism spectrum disorder as observed in his idiosyncratic conversational and social skills" (id. at p. 5).  The March 23, 2006 report indicates that a brief cognitive screening using the Stanford-Binet: Fifth Edition - Brief Form was attempted, but was discontinued due to the child's evident frustrations (id.).  Results of the Behavior Assessment System for Children-Second Edition (BASC-II) (Parent and Teacher forms) revealed that the child's mother endorsed clinical scores related to hyperactivity and atypicality (id.).  She also endorsed borderline scores related to aggression and attention problems (id.).  On the teacher report form of the BASC-II, the child's teachers endorsed a clinical score related to hyperactivity (id.).  Based on a telephone consultation with his drama therapist, the report indicated that the child showed increased aggressiveness when involved with dramatic fantasy play (id.).  The evaluation report stated that "on examination and by history, [the child] fulfills DSM-IV diagnostic criteria for Asperger's Disorder as related to impairments of social relatedness and restricted interests" (id.).  Hyperactivity, attention difficulties and reactive behavior were also noted, resulting in a clinical profile consistent with Asperger's Disorder with secondary features related to an attention deficit hyperactivity disorder (ADHD) (id. at p. 6).  Recommendations included a suggestion that respondent identify the child as eligible for special education as a student with autism, and that petitioners receive parent training and education as part of the child's individual education program (IEP) to promote adaptive behavior and academic development at home (id.).

 

On March 6, 2006, respondent's special education teacher conducted an education evaluation (Dist. Ex. 7).  Administration of the Woodcock-Johnson III Tests of Achievement (W-J III) yielded average range scores on the letter-word identification subtest, passage comprehension subtest, and applied problems subtest (id. at pp. 1-2).  The child's performance yielded scores in the high average range on the spelling subtest (id.).  Cooperative learning strategies and praise for appropriate behavior were recommended as instructional strategies to facilitate access to the general education curriculum (id. at p. 2).

 

On March 9, 2006, respondent conducted a psychological evaluation of the child (Dist. Ex. 6).  Administration of the Stanford-Binet Intelligence Scale: Fifth Edition yielded a Verbal IQ score of 107 (68th percentile), a Non-Verbal IQ score of 95 (37th percentile), and a Full Scale IQ score of 101 (33rd percentile) (id. at p. 1).  Administration of the Beery Buktenica Developmental Test of Visual-Motor Integration: Fifth Edition yielded a score of 95, which was in the average range (id.).  The evaluating psychologist described the child as demonstrating a good attention span and good effort on all tasks, and able to express himself intelligibly and without difficulty (id. at p. 3).  In addition, he appropriately engaged with the evaluator and was cooperative throughout the evaluation process (id. at p. 1). 

 

On March 21, 2006, respondent conducted a speech-language evaluation of the child (Dist. Ex. 5).  The evaluator reported that the child came willingly with her, he attempted to complete presented tasks, his eye contact was within normal limits, and he was very verbal throughout the evaluation (id. at p. 1).  Administration of the Test of Language Development-P: 3 (TOLD-P: 3) yielded standard scores (SS) in the above average range for spoken language quotient (116), organization quotient (118), semantic quotient (115), and syntax quotient (115) (Dist. Ex. 5 at p. 2).  Standard scores were in the average range for the listening quotient (103) and in the superior range for the speaking quotient (121) (id.).  The child was described as able to understand and produce language, follow directions and organize his thoughts and ideas (id.). 

 

On March 28, 2006, a Child Study Team (CST) meeting occurred (Tr. pp. 1285, 1370-71).1 The child's mother, his classroom teachers, respondent's special education teacher, respondent's psychologist and respondent's speech-language pathologist were in attendance (Tr. p. 77).  The CST shared respondent's evaluation findings with the child's mother, indicated that her son's academic performance was acceptable, and concluded that he would not be eligible for special education services (Tr. p. 77).  Although afforded an opportunity to ask the CST questions about the evaluations, the child's mother reportedly did not do so; however, she participated in the meeting (Tr. pp. 1287, 1372).  She reportedly advised the CST that the child had a diagnosis of Asperger's Disorder and that he was undergoing drama therapy at Kid Esteem (Tr. p. 1373).  Consequently, the CST addressed behavioral concerns regarding the child and devised a behavioral plan on which they agreed to work cooperatively (Tr. pp. 1286, 1374-76).  The child's mother asserted that she told the CST about the private autism spectrum evaluation that petitioners obtained in February 2006, and offered to share the March 23, 2006 evaluation report with the team, but the CST indicated to the child's mother that she should keep the evaluation report and share it at the upcoming CSE meeting (Tr. p. 78).  Although the child's mother stated that she had offered to provide the CST with copies of private evaluation reports, respondent's special education teacher, psychologist and speech-language pathologist indicated that the CST did not discuss any private evaluation reports during the meeting and that the child's mother did not offer to provide the CST with copies of any evaluation reports (Tr. pp. 1001, 1286, 1374). 

 

On April 6, 2006, a Conners Abbreviated Teacher Rating Scale (Conners) was completed by the child's teachers from ECC and sent to his pediatric neurologist (Dist. Ex. 13).  The teachers noted that the child intentionally disturbs other children to provoke a negative reaction from his classmates, but when he is focused he is able to follow through and complete his schoolwork (id.).  The checklist indicates that the child's teachers rated him as restless/overactive and distractible "much of the time," excitable/impulsive "some of the time," disturbs other children "very much of the time," and displays short attention span (interest level), is easily frustrated, cries often/easily, demonstrates mood lability, and temper tantrums/unpredictable behavior "not at all" (id.).  By letter dated April 27, 2006, the nurse practitioner employed by the pediatric neurologist's office offered diagnoses of Asperger's Disorder and symptoms of ADHD (Dist. Ex. 12).  In a May 17, 2006 pediatric medical evaluation letter, the child's pediatrician concurred with the nurse practitioner's diagnoses (Dist. Exs. 2 at p. 2; 10 at p. 1).

 

A May 18, 2006 progress report from the child's private occupational therapist indicated that the child had "serious social issues that need consistent intervention" and that sensory processing difficulties contribute to his difficulty modulating his behavior (Dist. Ex. 11 at p. 2).  The therapist indicated that the child's delays in fine motor coordination interfered with his graphomotor skills, and she recommended continued occupational therapy (Dist. Exs. 2 at p. 2; 11 at pp. 1-2).

 

On May 22, 2006, petitioners submitted the March 23, 2006 autism spectrum evaluation report to respondent as well as various letters from the child's doctors and therapists (Tr. pp. 82, 1380; Parent Ex. F).  Respondent's CSE convened the next day to develop a program for the child for the 2006-07 school year (Tr. p. 1288).  The May 23, 2006 CSE based its discussion on the social history, the psychological evaluation, the education evaluation, and the speech-language evaluation conducted by respondent, as well as a physical examination report dated February 28, 2006 (Dist. Ex. 4 at p. 1).  All of the May 2006 CSE members, including petitioners, had access to the evaluation reports (Tr. pp. 1288-89, 1379).  The child's classroom teacher reported that the child was making steady progress (Dist. Ex. 4 at p. 1).  Based on its review of available information, the May 2006 CSE concluded that the child did not display evidence of a "handicapping condition" and that he was ineligible for special education services (Tr. p. 1380; Dist. Ex. 4 at p. 1).  The CSE agreed to reconvene on or before July 11, 2006 to review the documentation submitted by petitioners the day before the meeting (Tr. pp. 1380-81; Dist. Ex. 4 at p. 1).

 

By letter dated June 21, 2006, respondent delivered a copy of the May 2006 CSE's recommendations to petitioners (Dist. Ex. 22).  Also on June 21, 2006, respondent's CSE reconvened in order to review the private evaluations submitted by petitioners (Tr. p. 1292).  Petitioners, an additional parent member, the CSE chairperson, respondent's psychologist, the child's ECC teacher and special education teacher, and respondent's speech-language pathologist attended the June 2006 CSE meeting (Dist. Ex. 3).  During the June 2006 meeting, the child's classroom teacher again reported that the child was making steady progress (id.).  The June 2006 CSE reached the same conclusion as the May 2006 CSE, that the child did not display evidence of a "handicapping condition," and determined that he was ineligible for special education services (id.).  Despite its conclusion, the June 2006 CSE scheduled a CST meeting to take place on October 19, 2006 in order to review the child's progress as a regular education student in light of petitioners' concerns regarding their child's progress in kindergarten (Tr. p. 1295; Dist. Ex. 3).  By letter dated July 12, 2006, respondent delivered a copy of the June 2006 CSE recommendations to petitioners (Dist. Ex. 21).

 

On July 26, 2006, by due process complaint notice, petitioners requested an impartial hearing (Parent Ex. A).  Petitioners disputed the determination reached by the May 2006 and June 2006 CSEs that their son was not eligible for special education services (id.).  In addition, petitioners requested reimbursement for privately obtained occupational therapy and counseling (id.).  In their due process complaint notice, petitioners asserted that the private evaluations that they obtained supported a classification of autism and also supported their son's need for special education services (id.).  Petitioners claimed that the matter could be resolved if respondent agreed to classify their son as a student with autism and provide him with special education supports and services (id.). 

 

An impartial hearing convened on September 28, 2006 and after eight days of testimony concluded on October 25, 2006.  At the impartial hearing, petitioners claimed that their son's behavior deteriorated during the 2005-06 school year, thereby warranting his classification as a student with autism (Tr. pp. 27, 29).  Accordingly, they challenged respondent's decision that their son was ineligible for special education services (Tr. p. 31).  In contrast, respondent maintained that its recommendation that the child was not eligible for special education services was appropriate and that petitioners could not establish during the impartial hearing that he had a disability that adversely affected his educational performance (Tr. pp. 33, 37).

 

By decision dated November 16, 2006, the impartial hearing officer rendered a decision in which he found that petitioners failed to meet their burden of proof that the CSEs which convened in May 2006 and June 2006 incorrectly decided that petitioners' son should not be classified as a student with autism and was ineligible for special education services  (IHO Decision at p. 24).  He further concluded that petitioners failed to establish during the impartial hearing that their son had a disability that adversely impacted his educational performance (id.).

 

This appeal ensued.  Petitioners request that the impartial hearing officer's decision be annulled in its entirety.  Petitioners assert that the impartial hearing officer erred by applying an overly stringent legal standard to find that the child was not eligible for special education services.  They further maintain that the child has a disability that adversely impacted his education during the 2005-06 school year and that continues to adversely impact his education during the 2006-07 school year.  In light of the foregoing, petitioners claim that their son is eligible for special education supports and services. 

 

In addition, petitioners assert that the impartial hearing officer erred by failing to consider a number of procedural inadequacies that resulted in a denial of a free appropriate public education (FAPE) to the child.  Specifically, they contend that: 1) by destroying the child's educational records, respondent deprived them of their due process rights; 2) the speech-language and psychological evaluations conducted by respondent were insufficient and failed to meet any of the criteria specified in federal or state law; 3) despite petitioners' requests, respondent refused to provide them with copies of the evaluation reports; 4) the June 2006 CSE meeting was improperly constituted because the additional parent member left the meeting early and without petitioners' consent; and 5) respondent failed to provide petitioners with a written copy of the CSE's determination that the child was ineligible for special education services.  Respondent submitted an answer, with affirmative defenses, denying petitioners' assertions and requesting that the appeal be dismissed.

 

As detailed herein, I concur with the impartial hearing officer's determination that the CSEs that convened in May 2006 and June 2006 appropriately determined that the child was ineligible for special education programs and services, based on the information before them, which did not establish that his educational performance was adversely affected by a disability or that he required special education services under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482).2

 

The central purpose of the IDEA is to ensure that students with disabilities have available to them a FAPE (Frank G. v. Bd. of Educ., 459 F.3d 356, 363 [2d Cir. 2006]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; 20 U.S.C. § 1400[d][1][A]).  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; see 20 U.S.C. § 1414).  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, 207).  "The IEP is the central mechanism by which public schools ensure that their disabled students receive a free appropriate public education" (Polera v. Bd. of Educ., 288 F.3d 478, 482 [2d Cir. 2002]).  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[a]3; 8 NYCRR 200.6[a][1]).  The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (Schaffer, 126 S. Ct. at 537).

 

In order to be classified as a child with a disability under federal or state law, a student must not only have a specific physical, mental or emotional condition, but such condition must adversely impact upon a student's educationalperformance to the extent that he or she requires special services and programs (20 U.S.C. § 1401[3] [defining a child with a disability as one who, by reason of their disability, "needs special education and related services"]; 34 C.F.R. § 300.8[a][1] [same]; 8 NYCRR 200.1[zz] [defining a student with a disability as one who "requires special services and programs"]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 65-66 [2d Cir. 2000] [noting that neither IDEA nor federal regulations define "need special education" or "adverse effect on educational performance"]; Muller v. Committee on Special Education of East Islip Union Free Sch. Dist., 145 F.3d 95, 103-04 [2d Cir. 1998]; Application of a Child Suspected of Having a Disability, Appeal No. 05-047).

 

Specifically, autism is defined as a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, which adversely affects a student's educational performance.  Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student's educational performance is adversely affected because the student has an emotional disturbance as defined by 8 NYCRR §200.1(zz)(4).  A student who manifests the characteristics of autism after age three could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied (8 NYCRR 200.1[zz][1]; see also 34 C.F.R. § 300.8[c][1]).

 

As a threshold matter, I must consider petitioners' contention that the impartial hearing officer applied an improper legal standard to reach his determination that the child was ineligible for special education services.  I disagree.  I find that the decision of the impartial hearing officer demonstrates that he carefully reviewed the allegations contained in the due process complaint notice and applied a proper legal analysis in reaching his conclusions (IHO Decision at p. 24).  His decision is thorough and well-reasoned.  Although the record reflects petitioners' concerns regarding the child's demonstration of social pragmatic skills, among other things, the impartial hearing officer correctly applied the standard that eligibility, in part, requires establishment of a condition that adversely affects a student's educational performance (IHO Decision at p. 24).  For the reasons set forth herein, I concur with the impartial hearing officer's decision.

 

I now turn to petitioners' claim that their son has a disability that adversely impacted his education during the 2005-06 school year and that respondent incorrectly determined that he was ineligible for special education services.  Having reviewed the evidence upon which petitioners rely, which was also considered by the May 2006 and June 2006 CSEs, I find that respondent correctly determined that during the 2005-06 school year, the child's educational performance was not adversely affected by Asperger's Disorder, DSI, ADHD, or social pragmatic difficulties and that he does not require special education services.  Although the record reveals petitioners' concerns regarding their son's social pragmatic skills, diagnoses of Asperger's Disorder, hyperactivity, attention difficulties, and reactive behavior, as well as DSI, the record also contains evaluative information obtained by respondent that reflected average level skills in the areas of cognitive, academic, and speech and language development (Dist. Exs. 5; 6; 7).

 

The record shows that the child's cognitive abilities are in the average range (Dist. Ex. 6 at p. 1).  Educational testing conducted by respondent yielded average to high average range scores (Dist. Ex. 7 at pp. 1-2).  The record reflects no identified academic deficits.  Specifically, the record shows that petitioners were not concerned about the child's academic skills as the child's mother testified, "academically, he's fine" (Tr. p. 762).

 

Additional testimony by the child's mother reflected her opinion that there is a social and interpersonal component in school with which the child will probably have difficulty (Tr. p. 208).  She opined that at times the child has the potential to have greater difficulty than his peers when participating in group projects and assignments, and lessons that are not of his preferred interest (Tr. p. 209).  Respondent's June 2006 CSE addressed the evaluative information that was available to it in concluding that the child was ineligible for special education supports and services, including the private evaluation reports obtained by petitioners (Dist. Ex. 3).  Notwithstanding the child's mother's information regarding her son's interpersonal skills, I find that this information alone does not provide a basis for concluding that his educational performance in school was being adversely affected during the 2005-06 school year, and while the May 2006 CSE and June 2006 CSE gave consideration to petitioners' concerns, respondent's CSEs were not required to classify the child as a student with a disability based on this information (see Application of the Bd. of Educ., Appeal No. 06-120).

 

Despite petitioners' concerns regarding the child's social pragmatic skills, the speech-language pathologist who evaluated him testified that he demonstrated appropriate eye contact, stayed on topic, responded to questions posed, exhibited proper use of voice, and was able to sustain a conversation (Tr. pp. 882, 885-86).  The record also shows that the speech-language pathologist did not observe the child engaging in sub-vocalization or echolalia (Tr. p. 887).

 

Testimony by the special education teacher who performed the education evaluation indicated that at the time of the evaluation during the 2005-06 school year, when the child attended the integrated Montessori class as a regular education student (Tr. p. 65), she discussed the parent-initiated referral (Dist. Ex. 28) to the CSE with his classroom teacher (Tr. p. 1272).  Notwithstanding petitioners' concerns about their son's socialization skills, the record indicates that a referral to the CSE was not mandated at that time because he was making satisfactory progress in his classroom (Tr. pp. 1272-73).  In addition to the education evaluation, respondent's special education teacher also conducted a classroom observation of the child in March 2006 (Dist. Ex. 8).  A review of the record reveals that in conducting her evaluation, she focused on petitioners' concerns regarding the child's socialization behaviors (Tr. p. 1275).  The record indicates that she opined that although there was room for improvement, the child's behavior was not "significant enough" to warrant a referral to respondent's CSE (Tr. pp. 1338-39).  She reported that she did not notice any disruption of the decorum or process of the classroom and that the child's classroom teacher successfully addressed any inappropriate behaviors exhibited by children in the room (Tr. pp. 1277, 1333, 1339).

 

Based on the foregoing, I find that the impartial hearing officer correctly concluded that petitioners failed to meet their burden of proving that their son had a disability that adversely affected his educational performance thereby requiring special education services during the 2005-06 school year.

 

Petitioners also contend that the evidence adduced at the impartial hearing showed that the child's disability continues to adversely impact his education during the 2006-07 school year.  There is no basis in the record to support petitioners' assertion.  A review of the record indicates that testimony by the child's classroom teacher is consistent with the testimony of respondent's special education teacher who conducted the classroom evaluation; that the assistance of support staff is not needed to control his behavior (Tr. pp. 1091-93, 1338-39).  The record further reflects that the child's behavior has not impeded his functioning in school to the extent that special education services are required (id.).

 

The child's classroom teacher for the 2006-07 school year testified that in addition to following a kindergarten curriculum that teaches reading, math, science and social studies (Tr. pp. 1068-69), the children in her class participate in academic and play "centers" where they practice socialization and learn independence (Tr. pp. 1069-70).  The children work in teams that change throughout the school year so they can form friendships with everyone in the class (Tr. pp. 1070-71).  In addition, the school social worker teaches each kindergarten class social skills through a program entitled, "I Care" (Tr. pp. 1072-73).  The classroom teacher also reported that she offers incentives for good behavior through classroom-wide group and individual behavior management plans (Tr. pp. 1074-76).

 

The record indicates that the child is an eager participant in class, appears happy and excited to learn, and raises his hand to answer questions or volunteer topical information (Tr. pp. 1076-77).  He also answers questions when called upon without volunteering (Tr. p. 1077).  His classroom teacher noted that the child has excellent work habits, and that he produces excellent work in a timely manner (id.).  She also stated that he "never gives [her] a problem," and that he transitions easily from one task to the next (Tr. pp. 1077, 1079).  Although the child's classroom teacher testified that the child exhibited inappropriate behaviors such as taking control of a center and then having difficulty relinquishing that control (Tr. pp. 1081-82), playing with his shoelaces (Tr. p. 1114), behaving impulsively (Tr. p. 1113), hitting another child (Tr. p. 1139), or using unkind words (id.), she indicated that these types of behaviors are not unique to him and have been exhibited by other kindergarten children (see Tr. pp. 1139-42, 1150).  She also affirmed that she is able to adequately manage the child's behaviors in class (Tr. pp. 1145-46, 1150) and has done so by implementing an individual behavior management plan for this child and for another student that offers greater incentive for him to make a conscious effort to change his behavior in class (Tr. pp. 1075, 1083-86).

 

The record also indicates that on October 24, 2006, during the course of the impartial hearing, petitioners' rebuttal witness, a retired clinical and school psychologist, observed the child in the classroom setting (Tr. pp. 1511-12, 1516).  A review of this witness' testimony confirms the child's classroom teacher's testimony that she is able to adequately address the child's behavioral needs in the classroom.  The psychologist reported that she observed that the child complied with the classroom teacher's directions (Tr. pp. 1588-89), and at no time during the observation did the teacher lose control of the classroom, nor did she ever need to raise her voice (Tr. pp. 1545, 1551, 1554, 1564, 1574, 1589).

 

In light of the foregoing, I agree with the impartial hearing officer's finding that petitioners did not establish that their son had a disability that has adversely impacted his education during the 2006-07 school year thereby requiring special education services pursuant to the IDEA.

 

In conclusion, I find that the May 2006 and June 2006 CSEs appropriately declined to identify the child as eligible for special education supports and services under the IDEA because the record as a whole does not demonstrate that his educational performance was adversely affected by his diagnoses of Asperger's Disorder, DSI, ADHD, or social pragmatic difficulties, or that he needs special education services.  Accordingly, I concur with the impartial hearing officer's conclusion that the child should not be identified as eligible for special education supports and services under the IDEA.

 

Next, I will address petitioners' contention that the impartial hearing officer erred by failing to consider numerous procedural irregularities surrounding respondent's determination that the child was ineligible for special education services, including inter alia, that respondent destroyed the child's educational records, which in turn deprived petitioners of their due process rights.  Respondent argues that the impartial hearing officer properly confined his determination to petitioners' due process complaint notice.  I concur.  Under the new amendments to the IDEA, the party requesting an impartial hearing may not raise issues at the impartial due process hearing that were not raised in its original due process request unless the original request is amended prior to the impartial hearing (20 U.S.C. § 1415[c][2][E]), or the other party otherwise agrees (20 U.S.C. § 1415[f][3][B]).  The Senate Report pertaining to this new amendment to the IDEA noted that "the purpose of the sufficiency requirement is to ensure that the other party, which is generally the school district, will have an awareness and understanding of the issues forming the basis of the complaint" (S. Rep. 108-185, Individuals with Disabilities Education Act Senate Report No. 108-185, "Notice of Complaint," [November 3, 2003]).  The Senate Committee reiterated that they assumed with the earlier 1997 amendments' notice requirement that it "would give school districts adequate notice to be able to defend their actions at due process hearings, or even to resolve the dispute without having to go to due process" (id.).  The record reflects that based on petitioners' due process complaint notice, the impartial hearing officer defined the central issue before him, i.e., whether the child was eligible for special education services (Tr. p. 23; Parent Ex. A).  Additionally, counsel for respondent reminded the parties that the subject matter of the impartial hearing was limited to issues raised in the due process complaint notice (Tr. pp. 35-37).  A review of the record also indicates that at no point during the impartial hearing did petitioners' counsel amend the due process complaint notice, nor did she make any request to do so.  Under the circumstances, I do not consider the procedural claims raised by petitioners on appeal because they were not properly raised below (see 8 NYCRR 200.5[j][1][ii]) and are not properly before me (see Application of a Child with a Disability, Appeal No. 04-019; Application of a Child with a Disability, Appeal No. 03-095; Application of a Child with a Disability, Appeal No. 02-024; Application of a Child with a Disability, Appeal No. 01-024; Application of a Child with a Disability, Appeal No. 99-060).

 

I must also address the manner in which the attorneys conducted themselves during the impartial hearing.  The record reveals that the impartial hearing was unduly contentious and protracted as a result of unnecessary disputes between the parties (see e.g., Tr. pp. 345-54).  I remind the parties that during an impartial hearing their focus should be on the special education needs of the child.  I also remind the impartial hearing officer that it is his responsibility to maintain control of the impartial hearing and to exclude evidence that he determines to be irrelevant, immaterial, unreliable or unduly repetitious (8 NYCRR 200.5[j][3][xii][c-e]).

 

Lastly, I note that the record reflects that prior to receiving petitioners' request for an impartial hearing, the June 2006 CSE recommended that the CST meet on or before October 19, 2006 (Dist. Ex. 3).  I encourage respondent's CST to schedule a meeting regarding the child at an appropriate time to review his progress, if it has not done so already.

 

I have reviewed the parties' remaining contentions and find them to be without merit.

 

THE APPEAL IS DISMISSED. 

 

Dated:

Albany, New York

 

__________________________

 

February 2, 2007

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

1 The record reveals that there is conflicting testimony with respect to the exact date of the CST meeting.  The child's mother testified that it took place in March or April (Tr. p. 77).  The impartial hearing officer's decision indicates that the meeting took place in April 2006.  For purposes of this decision, I find that this meeting took place on March 28, 2006, inasmuch as three witnesses testified that the CST meeting took place on that date (see Tr. pp. 1001, 1285, 1370).

 

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

 

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 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.