01-094

         Petitioners appeal from an impartial hearing officer’s decision finding that the Locust Valley Central School District had provided a free appropriate public education (FAPE) to their son during the 1999-2000 school year, and denying their requests for compensatory education, and reimbursement for tutoring, independent evaluations, and attorneys fees. The appeal must be sustained in part.

        When the hearing began on April 12, 2000, the child was six and one-half years old and was finishing the first grade in respondent’s MacArthur Primary School. The child was classified as other health impaired (OHI) and speech impaired (SI). His dual classification is not in dispute. As a preschooler, the child was diagnosed with Pervasive Developmental Disorder-Not Otherwise Specified (PDD), for which he received intensive speech services and behavioral training by a private psychologist. The psychologist believed that the child had outgrown all of the behaviors associated with the PDD diagnosis, except for attention deficits, by the time his parents enrolled him in a private kindergarten in September 1998 (Transcript p. 1599).

        In October 1998, the child was evaluated at the McCarton Center for Developmental Pediatrics (McCarton Center). On the Weschler Preschool and Primary Scale of Intelligence-Revised (WPPSI-R) he fell within the average range of intellectual functioning, but his scores suggested weaknesses in language processing and word retrieval (Transcript pp. 1396-97). The psychologist who tested him found that he was easily distracted, fidgety and impulsive, and tended to give up on challenging tasks. The examining pediatrician noted that he demonstrated many of the behaviors associated with attention deficit disorder (ADD) and diagnosed him with that condition. She recommended that he receive speech/language therapy, behavior modification to improve his attending skills, and a trial dose of Ritalin (Exhibits 4, 5).

        Petitioners moved into respondent’s district in October 1998. At their request, the child’s private psychologist was permitted to assist with their son’s transition to respondent’s kindergarten class. They also sought to have him classified by respondent’s Committee on Special Education (CSE) (Transcript pp. 1542-43). In December 1998, the CSE classified the child as OHI/SI, and recommended that he attend a regular education kindergarten class, with a 1:1 aide, a behavior modification program, and speech/language therapy (Transcript pp. 894-95, 1399, 1402). Petitioners opted to have their own therapist provide speech therapy (Transcript pp. 1560-61). According to his mother, the child began taking Ritalin to address his attention deficit (Transcript p. 1409).

        By all accounts, the child did well in kindergarten, and his parents were happy with his progress (Transcript pp. 727, 1016, 1402, 1629). On May 18, 1999 the CSE convened to develop the child’s individualized education program (IEP) for first grade during the 1999-2000 school year. The CSE recommended that he receive 60 minutes of push-in resource room services three times a week, and 30 minutes of speech/language therapy in a group five times a week (Exhibits 1, L). After some discussion about whether the child continued to need a 1:1 aide, the CSE recommended that an aide be provided to assist the child in his first grade classroom. On the IEP, the CSE indicated that the aide’s services might be faded during the year if the child made progress. It also noted that the child’s mother had declined the district’s offer to provide speech/language therapy, and had indicated that petitioners would obtain private therapy for their son. The IEP also indicated that respondent’s school psychologist would serve as a consultant in designing the child’s behavior modification plan, and would coordinate the child’s private services with the school’s services.

        During the summer of 1999, the child was privately tutored (Transcript p. 1638). At the first grade open house early in September, his teacher reported to petitioners that the child was doing well (Transcript pp. 48, 1416). A few weeks later, the child’s mother met again with his regular and special education teachers to discuss the implementation of his program (Transcript pp. 100-01, 1422). In early October, the child began to exhibit a lack of focus and resistance to the aide’s guidance (Exhibit 23; Transcript pp. 49-50, 103). His mother and his teacher discussed the problem in a telephone conversation on October 13, 1999. The next day, the mother sent a letter requesting a weekly "telephone chat" with her son’s aide or teacher, and the teacher responded that she would be happy to do so (Exhibits E, 27).

        On October 19, 1999, the child was referred to respondent’s child study team by his first grade teacher, who indicated that the child had begun to have difficulty focusing on any task, even with the help of his aide, since his medication had been changed (Exhibit 8). The teacher also spoke to the child’s mother about the matter on October 20, 1999 (Exhibit 29). By letter dated October 20, 1999, the mother requested permission for her son’s doctors to observe him at school (Exhibit 28). On October 25, 1999, the mother wrote again to request that the teacher complete a daily questionnaire designed to monitor the child’s behavior on Ritalin (Exhibit F). The teacher responded that she would be glad to fill out the behavior forms on a weekly basis (Exhibit 15; Transcript p. 347). On October 26, 1999, the child’s mother wrote to the teacher to urge that she complete the behavior forms on a daily basis. She expressed concern about what she termed "a lack of communication," and questioned why she had not received more feedback from her son’s aide, and why a schedule for weekly phone calls had not been established (Exhibit D). The record indicates that the child’s aide completed the behavior forms on a daily basis from October 26, 1999 through December 3, 1999 (Exhibit 13; Transcript p. 348).

        The child study team met to discuss the child’s program on October 28, 1999 (Exhibit 9; Transcript pp. 67, 904-05). On November 3, 1999 the team met with the child’s mother to discuss his medication and test results, and to schedule a time for his private psychologist to observe him in the classroom (Transcript pp. 131-32, 135). The child’s mother indicated that she planned to have her son’s speech/language skills privately evaluated, and to obtain a private psychological evaluation (Transcript p. 138). In a letter dated November 19, 1999, the assistant principal summarized the agreement that had been reached with the child’s mother to change her son’s resource room services from push-in to pull-out so that the child could benefit from preteaching and review. He also stated that arrangements would be made for the family’s private psychologist to observe the child at school, and the school psychologist would serve as a consultant in designing a behavior management plan (Exhibit 11). The child was taken off Ritalin on November 25, 1999 (Exhibit U; Transcript p. 149).

        The child’s private psychologist, accompanied by the school psychologist and the resource room teacher, conducted a short observation of the child in his classroom on November 29, 1999, (Exhibit 34; Transcript pp. 151-52, 165, 1644). They later met with the classroom teacher to discuss a behavior management plan for the child (Transcript pp. 166, 559-60). They agreed the plan would be written by the school psychologist, since the child’s private psychologist was reducing her services (Transcript pp. 548-49). The school psychologist reviewed the proposed plan with the teacher, the aide, and the resource room teacher on December 6, 1999 (Transcript p. 781). It focused on two target behaviors: having the child raise his hand and respond in a modulated voice, and helping him complete his assignments well and in a timely manner. The plan was similar to what was done in kindergarten. It involved giving the child smiley face stickers as positive reinforcement, and taking away stickers of shiny apples if he was non-compliant, with the latter being referred to as the "response cost" part of the plan in this proceeding (Exhibit 2). On December 8, 1999, the mother gave her approval to implement the plan (Transcript pp. 567-68, 780-81).

        As part of the plan, the aide sent home daily sheets with the smiley faces and comments on the child’s behavior, so the mother could reinforce the behaviors by giving rewards at home (Exhibit 12; Transcript pp. 560-61). The school psychologist and the private psychologist agreed to drop the response cost aspect of the plan in early January 2000, after the teacher and the aide determined that it was not effective (Exhibit M; Transcript p. 570).

        The child’s teacher sent a note to the parents in late January indicating that she was going to have the aide take a step back from the child to allow her to assess his ability to perform without the aide’s assistance (Exhibit 19). The teacher testified that the aide actually stepped back for only part of a day, when it became clear the child was not ready to function without her (Transcript pp. 386, 388-89). Her observation notes indicate that he was distractible and had difficulty following directions, maintaining an appropriate work pace and completing routine tasks (Exhibit C; Transcript p. 182). The child’s mother requested an individual conference later in January to discuss her child’s performance (Exhibit 36). The teacher telephoned the mother the same day to discuss the child’s performance in detail, as evidenced by her notes (Exhibit 31A; Transcript pp. 175-76). She reported to the mother that the child had improved in all academic areas, but his focus was very poor, and that he would hug, slap or shake other children when he was excited (Transcript pp. 176, 187).

        By letter dated February 11, 2000, the parents’ attorney requested that an impartial hearing be held. He asserted that respondent’s staff had not communicated adequately with petitioners, that the child’s aide was not properly trained, and that it was improper to have her step back from the child for a week, that the child was being isolated from other students as part of his behavior plan, and that school staff ignored several of the parents’ demands and had set the child up for failure (Exhibit A). Petitioners requested compensatory and remedial tutoring for approximately two-three hours per day, six days a week to forestall what they believed would be their son’s further regression, and reimbursement for the private evaluations they had obtained. In addition, petitioners requested that the child be provided a behavioral analyst to train his aide, supervise in the classroom and implement data collection, and that he be given a second set of books and lesson plans in advance to facilitate home instruction.

        Respondent’s staff met with petitioners in March 2000 to discuss their son’s progress (Transcript p. 1716). The first grade teacher reported that the child had made progress in reading, writing and math. The school psychologist reported that he had achieved at least a year’s growth in math and at least six months’ growth in reading, based on standardized test scores obtained by the resource room teacher. The school district requested permission to evaluate him further, but the parents declined (Transcript p. 1720). A private speech/language evaluation done in November 1999 and a second McCarton Center evaluation done in February 2000 were not received by school officials until April 2000, when they were forwarded to the school district’s attorney in preparation for the impartial hearing (Exhibits J, 35).

        The hearing began on April 12, 2000 and ended on March 1, 2001. In a decision dated October 1, 2001, the hearing officer denied all the relief requested. She noted that petitioners’ attorney had indicated in his opening statement that petitioners were not contesting the child’s placement or the program described in their son’s IEP, but rather the implementation of the IEP (Transcript p. 21). She found that the child had not been denied a FAPE when his aide and classroom teacher were not given a copy of the IEP at the start of the school year, or when the aide stepped back for assessment purposes. She dismissed petitioners’ assertion that the aide had spoken harshly to the child, and she found that the aide did not need additional training because she was a certified teacher and had qualifications above what were needed.

        The hearing officer also found that respondent had not denied a FAPE to the child by not having a behavior plan in effect at the beginning of the first grade because the child had done so well in kindergarten. In response to an issue that arose during the hearing, she ruled that respondent did not have to conduct a functional behavioral assessment (FBA) because the behavior plan adequately addressed the child’s attention problems, and the IEP contained adequate goals and objectives. She further found there was no need for an additional consultant who was trained as a behavioral analyst, and that the request for extra books and lesson plans was unreasonable because the teacher did not use textbooks, and the child progressed without them.

        The hearing officer denied petitioners’ request for reimbursement for the cost of their son’s tutoring, after finding that the child had progressed academically and behaviorally as a result of the services provided in his IEP. She also found that even if respondent had not proven that the child’s program was appropriate, petitioners would not be entitled to reimbursement because they had failed to present testimony about the tutoring. The hearing officer also dismissed petitioners’ claim for reimbursement for the cost of their child’s private evaluations, upon the ground that petitioners had withheld their consent for the school district to do its own evaluations. She ruled that she did not have the authority to award attorney’s fees.

        Petitioners claim that the hearing officer improperly shifted the burden to them to prove that the school district did not offer a FAPE to their son. I find that their claim is frivolous. On page 56 of her decision, the hearing officer clearly stated that the Board of Education had the burden of proof on the issue, and on page 59 thereof, she found that respondent had offered a FAPE to the child. She indicated that the burden of proof shifted to the parents with respect to the appropriateness of the services for which they sought reimbursement, and explained why they had not met their burden of proof. However, she did so in the context of having already found that respondent had met its burden of proof.

        Petitioners assert that the hearing officer correctly held that the Board of Education was required as a matter of law to either pay for their son’s private evaluations, or promptly initiate a hearing to demonstrate the adequacy of its own evaluations (Application of the Bd. of Educ., Appeal No. 01-089). They contend that since respondent has done neither, I should order respondent to reimburse them for the cost of those evaluations. However, petitioners have failed to address the hearing officer’s determination not to reimburse them for the cost of the private evaluations because they allegedly withheld their consent to having the school district evaluate the child. Therefore, I find that the issue is not properly before me.

        A board of education bears the burden of demonstrating the appropriateness of the educational program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that the recommended program is reasonably calculated to confer educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

        An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child with a Disability, Appeal No. 93-9). At the beginning of the hearing, petitioners’ attorney asserted that petitioners were not challenging their son’s IEP as written, rather they were challenging its implementation (Transcript p. 21). However, petitioners did in fact challenge some of the content of the IEP at the hearing, and they do so in this appeal. I will consider their claim that their son’s IEP was inadequate. Petitioners contend that the CSE should have conducted an FBA in order to prepare a behavior management plan for their son, and that such plan should have been in place at the beginning of the 1999-2000 school year.

        Respondent’s CSE had an informal behavior management plan in place for the child during his kindergarten year, but it did not implement a behavior management plan for him in first grade until December 8, 1999 (Exhibits 11, 2; Transcript p. 1603). A CSE must consider as part of its recommendation, when appropriate, "strategies, including positive behavioral interventions and supports" to address problem behaviors when the child’s behavior impedes his learning or that of others (8 NYCRR 200.4[d][3][I]). The record shows that the child was having a very successful year in kindergarten with the informal behavior plan. The child had made such good progress in kindergarten that his private psychologist did not raise the issue of a behavior management plan at the May 18, 1999 CSE meeting (Transcript p. 1631). The school psychologist testified that she thought the behavior management plan had been faded out due to the child’s improvement, and that he was at the top of his kindergarten class (Transcript pp. 727, 738). She further stated that everyone expected his behavior to improve even more the next year because he was taking medication for his attention deficit (Transcript p. 739). Upon review of the record, I am not persuaded that the CSE should have concluded that a behavior management plan was necessary when it drafted the child’s IEP for the 1999-2000 school year on May 18, 1999.

        When the child’s behavior became problematic in the fall of 1999, respondent’s staff moved to address the matter by conferring with the child’s mother and his private psychologist. The child’s psychologist and the school psychologist conducted a 20-minute observation of the child in class, and the school psychologist then prepared a behavior management plan. Petitioners challenge the adequacy of that plan, notwithstanding their acceptance of the plan in December 1999. They contend that the CSE should have conducted an FBA before preparing their son’s behavior managment plan, and that the plan did not address all of his behaviors.

        The Regulations of the Commissioner of Education provide that an initial evaluation must include an FBA for a student "…whose behavior impedes his or her learning or that of others, as necessary to ascertain the physical, mental, behavioral and emotional factors which contribute to the suspected disabilities" (8 NYCRR §200.4 [b][1][v]). Although this requirement is set forth in the definition of an initial evaluation, I note that there is no evidence a formal assessment has ever been performed. In any event, a CSE must accurately identify a student’s needs as a first step in preparing or amending an IEP, such as by adding a behavior management plan (Application of the Bd. of Educ., Appeal No. 01-060).

        Respondent was aware of the need to amend the child’s IEP to include a behavior management plan. Its assessment of the child’s behavioral needs did not include an analysis of when interfering behaviors occurred, nor did it identify the variables that contributed to the behaviors, or hypothesize why the student engaged in the interfering behaviors. I find that the CSE should have conducted a more thorough assessment so that a more detailed behavior management plan could have been prepared for the child. Nevertheless, I have looked at the entire record to assess the effect of this deficiency upon the child’s educational performance during the 1999-2000 school year.

        The evidence indicates that the child’s academic progress was satisfactory during the 1999-2000 school year. The McCarton Center report done in February 2000 indicated that the child was on grade level in mathematics and reading, and that his academic performance was commensurate with his intellectual level (Exhibit J). The school psychologist testified that the child demonstrated a year’s growth in math and six months worth of growth in reading during the 1999-2000 school year (Transcript p. 665). His teacher testified that he increased in sight word vocabulary from 30 words at the end of the first marking period, to a 78 to 98-word list at the end of the second marking period (Transcript p. 200). Further, his progress reports from November and March indicate that he was making steady progress in reading, writing and math (Exhibit 21). Although petitioners assert that the respondent’s behavior management plan should have addressed their child’s practice of touching or hugging other children, I note that the child’s aide testified that such behavior did not happen often (Transcript p. 1366). The child’s mother testified that her son’s behavior improved in the first grade, and that he was happy to go to school (Transcript pp. 1685-86, 1688).

        A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim (Burlington Sch. Comm. v. Dep’t of Educ., 471 U.S. 359 [1985]). Petitioners seek reimbursement for the cost of the private tutoring that they obtained for their son from March to June 2000. While I have found that respondent’s CSE should have performed a more thorough functional behavioral assessment of the child when his behavior worsened in the fall of 1999, I am not persuaded that the CSE’s failure to do so resulted in the denial of a FAPE to the child in view of the successful year he enjoyed in the first grade. I must also note, as did the hearing officer, that even if respondent had been found to have denied a FAPE, petitioners could not obtain reimbursement for the tutoring service because they failed to adduce adequate evidence of the necessity for or appropriateness of such service.

        There is no basis for awarding compensatory education to petitioners’ son. Compensatory education is instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It may be awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (Burr v. Ambach, 863 F. 2d 1071 [2d Cir. 1988]; Mrs. C. v. Wheaton, 916 F. 2d 69 [2d Cir. 1990]). There is no evidence of either in this record.

        I have considered petitioners’ other contentions, especially those relating to respondent’s alleged failure to implement their son’s IEP. I find them to be without merit.

THE APPEAL IS SUSTAINED to the extent indicated.

IT IS ORDERED that the hearing officer’s decision is annulled to the extent that it found that respondent need not have conducted a functional behavioral assessment.