03-024

         Petitioners appeal from the decision of an impartial hearing officer which determined that respondent offered their son a free appropriate public education (FAPE). The appeal must be dismissed.

      At the time of the hearing, petitioners' son was eight years old and was in a regular education classroom receiving resource room instruction, group occupational therapy, group physical therapy and group and individual speech-language therapy (Exhibit 13; Transcript pp. 8, 600-01). The child was first evaluated for developmental delays at the age of 14 months and began receiving occupational therapy, physical therapy and speech therapy at home at the age of 16 months (Exhibit 12). He received special education services at the Developmental Disabilities Institute in Huntington, New York from the age of 23 months until he was five years old. At that time, he attended a summer school program in the district and subsequently entered a 12:1+1 self-contained kindergarten class at respondent's Tackan Elementary School (Tackan) (Transcript p. 999). He attended a 12:1+1 self-contained combined kindergarten-first grade class the following year (Transcript p. 1057). In September 2001, the child was placed in a regular education classroom at respondent's Mt. Pleasant Elementary School (Mt. Pleasant). This placement was made at the request of his parents, who also requested that their son repeat the first grade (Exhibit 6). During the 2001-02 school year, the student received private tutoring at home for one hour per week and he also received private speech therapy until he began the first grade at Tackan (Exhibit 9).

        While in the first grade at Mt. Pleasant, the child received resource room services five times per week for 90 minutes, individual speech-language therapy three times per week and group speech-language therapy two times per week, group counseling two times per month, and group occupational therapy and group physical therapy, each two times per week (Exhibit 13). On December 3, 2001, the child's related services were reduced when petitioners expressed concern regarding the number of times the child was removed from the classroom. As a result, some of the child's related services were then provided on a push-in, rather than a pull-out basis (Exhibit 9).

        A Wechsler Intelligence Scale for Children – III (WISC-III) administered as part of the child's triennial review in March 2002, yielded a verbal IQ score of 70 (2nd percentile), a performance IQ score of 73 (4th percentile) and a full scale IQ score of 69 (2nd percentile) (Exhibit 6). Ratings on the Vineland Adaptive Behavior Scales yielded a composite score of 49 (1st percentile), indicating significantly delayed adaptive functioning (Exhibit 6). A speech-language progress report was completed in April and May 2002 in preparation for the child's triennial review (Exhibit 1). This progress report described the child as generally cooperative but easily frustrated due to his poor language skills and difficulty with speaking situations (Exhibit 1). Petitioners' son also exhibited poor eye contact, had difficulty paying attention during therapy, and required a high level of management (Exhibit 1). The therapist noted that the child was extremely difficult to redirect and sometimes did not respond when his name was called (Exhibit 1). Scores on all subtests measuring expressive language on the Test of Language Development (TOLD) were below the first percentile (Exhibit 1). A May 2002 teacher progress report completed at the end of the first grade described the child as having difficulty keeping up with the pace of the classroom and following directions, frequently off task and apparently absorbed in other things, and unable to initiate play or conversation with peers (Exhibit 14). The teacher reported that, although the child made some progress in reading during the final marking period of 2001-02, he required significant support, both in and out of the classroom, because he was inconsistent in grasping first grade skills (Exhibit 14). His resource room teacher reported that the student often lost focus when work became academically challenging and appeared to tire easily, which made it difficult for him to complete modified assignments (Exhibit 17). The child receives occupational and physical therapy as related services, but the record has limited information regarding the needs addressed by these therapies, other than noting difficulties with handwriting and fine motor coordination (Exhibits 3, 13).¹

       The child's triennial review was held on July 2, 2002, and respondent's Committee on Special Education (CSE) recommended a 12-month, 12:1+1 self-contained special education classroom (Exhibit 3). The individualized education program (IEP) recommended by respondent's CSE for the 2002-03 school year also provided for related services of speech-language therapy (group and individual) five times per week, group physical therapy one time per week, and group occupational therapy two times per week, each for 30 minutes (Exhibit 3).

        The impartial hearing began on October 7, 2002. Testimony was heard for six days and the hearing concluded on December 20, 2002. In their impartial hearing request, petitioners stated that their son required a regular education classroom with consultant teacher services, resource room and related services in order for him to receive a FAPE (IHO Exhibit 1). The hearing officer found that respondent's recommended program and placement was appropriate and in the least restrictive environment (LRE). The hearing officer ordered a trial use of a Phonic Ear Easy Listener FM system, as well as pre-trial and post-trial assessments using the Listening Inventory for Education. The hearing officer further ordered the CSE to consider whether counseling services should be added to the child's IEP.

        Petitioners contend that the recommended placement is not in the LRE and in this appeal seek (1) qualified additional personnel in the regular education classroom to assist the child on a 1:1 basis with his attention deficits and to keep him on task; (2) professional consultant support for two hours per day; (3) professional consultant support for the child's teachers for one to three hours per week; (4) resource room and special education teacher support for the child on a pull-out or push-in basis for 45 minutes each day; (5) an appropriate IEP that addresses the child's needs and is based on his present functioning levels; and (6) a 12-month program that is not in a self-contained special education classroom (Pet. ¶ 76). Respondent contends that the recommended 12:1+1 self-contained special education classroom is an appropriate program in the LRE. Since neither party appeals from those parts of the hearing officer's decision which ordered the trial use of a Phonic Ear Easy Listener FM system and ordered the CSE to consider the addition of counseling to the child's IEP, those parts of the decision are final and not subject to review (34 C.F.R. § 300.510[a]).

        The purpose of the Individuals with Disabilities Education Act (IDEA) is to ensure that children with disabilities are provided a FAPE (20 U.S.C. § 1400[d][1][A]; see Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2d Cir. 1987]). A FAPE consists of specialized education and related services embodied in an IEP (34 C.F.R. § 300.13). To meet its burden of showing that it provided a FAPE to an individual child, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). The student's right to a FAPE has been affected when the procedural violation results in the loss of the student's educational opportunity or seriously infringes upon the parents' opportunity to participate in the development of the student's IEP (see, Evans v. Bd. of Educ., 930 F. Supp. 83, 93-94 [S.D.N.Y. 1996]; W.A v. Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]; Application of the Bd. of Educ., Appeal No. 03-015; Application of a Child with a Disability, Appeal No. 02-092).

        The student's recommended program must also be provided in the LRE appropriate to the needs of the student (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; Rowley, 458 U.S. 176, 206-07 [1982]; 8 NYCRR 200.1[cc], 200.6[a][1]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (20 U.S.C. § 1414[d]; Application of a Child with a Disability, Appeal No. 02-092; Application of a Child with a Disability, Appeal No. 01-105). At issue herein is whether the recommended IEP is reasonably calculated to enable the student to receive educational benefits in the LRE (Application of a Child with a Disability, Appeal No. 03-009).

        The IDEA mandates that all students with disabilities be educated with nondisabled children to the maximum extent appropriate and may only be removed to a more restrictive environment when the nature and 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]; 34 C.F.R. § 300.550[a][2]; Oberti v. Bd. of Educ., 995 F.2d 1204, 1213 [3d Cir. 1993]; Briggs v. Bd. of Educ., 882 F.2d 688, 691 [2d Cir. 1989]; Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 [5th Cir. 1989]; Warton v. Bd. of Educ., 217 F. Supp.2d 261, 273 n.1 [D. Conn. 2002]; A.S. v. Norwalk Bd. of Educ., 183 F. Supp.2d 534, 538 n.3 [D. Conn. 2002]; Mavis v. Sobol, 839 F. Supp. 968, 982 n.25 [N.D.N.Y. 1994]; Application of a Child with a Disability, Appeal No. 03-009; Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 94-21). "[S]pecial education and related services must be provided in the least restrictive setting consistent with a [student's] needs" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]).

        Federal courts have long recognized that IDEA's requirement that disabled students be educated in the LRE was not an issue before the Court in Rowley and consequently, the test for determining the provision of FAPE set forth therein offers little guidance for determining whether a student is being educated in the LRE (20 U.S.C. § 1412[a][5][A]; see Daniel R.R., 874 F.2d at 1045 [recognizing that the analysis in Rowley "is [ill-suited to] evaluating compliance with the LRE requirement"]; A.W. v. Northwest R-1 Sch. Dis., 813 F.2d 158, 163 n.7 [8th Cir. 1987], cert. denied, 484 U.S. 847 [1987] [FAPE analysis set forth in Rowley assumes compliance with the other requirements of IDEA, including the LRE requirement]; Roncker v. Walter, 700 F.2d 1058, 1062 [6th Cir. 1983], cert. denied, 464 U.S. 864 [1983] [holding Rowley test was not dispositive of LRE requirement]; Mavis, 839 F. Supp. at 982 [Rowley test is "not particularly useful" in LRE cases]; Application of a Child with a Disability, Appeal No. 03-009).

        The Supreme Court has not yet established a standard for evaluating whether a school district has complied with the IDEA's LRE requirement. However, several district courts within the Second Circuit have adopted the Daniel R.R./Oberti analysis for determining whether a school district has complied with IDEA's LRE mandate (see Warton, 217 F. Supp.2d 261; A.S. v. Norwalk, 183 F. Supp.2d 534; Mavis, 839 F. Supp. 968; Application of a Child with a Disability, Appeal No. 03-009). The State Review Officers have also followed Daniel R.R./Oberti and their progeny (Application of a Child with a Disability, Appeal No. 03-009; Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 98-24; Application of a Child with a Disability, Appeal No. 98-12; Application of a Child with a Disability, Appeal No. 95-15; Application of a Child with a Disability, Appeal No. 94-27; Application of a Child with a Disability, Appeal No. 94-23; Application of a Child with a Disability, Appeal No. 94-21).

        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; Oberti 995 F.2d at 1213; Warton, 217 F. Supp.2d at 274; A.S. v. Norwalk, 183 F. Supp.2d at 542 n.8; Mavis, 839 F. Supp. at 985; Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 98-24). Several factors must be considered at each stage of the inquiry. When determining whether a student with a disability can be educated satisfactorily in a regular class with supplemental aids and services, these factors include, but are not limited to: "(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 also, Daniel R.R., 874 F.2d at 1048-1049; Mavis, 839 F. Supp. at 987-990; Application of a Child with a Disability, Appeal No. 03-009; Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 94-21).

        The record shows that respondent has made reasonable efforts to accommodate petitioners' son in his current regular education placement. His first grade teacher testified that, during the 2001-02 school year, she met with one of the child's resource room teachers daily to discuss the child's work for the day and that she and the resource room teachers made modifications to all of his work (Transcript pp. 471, 502). The modified work was parallel to the first grade curriculum, and the child was allowed to complete the work at his own pace in the resource room with assistance because he was not able to finish any of the assignments in class (Transcript pp. 469, 505). The student's resource room teacher testified that the student had mastered two IEP self-care objectives, four communication objectives, two fine motor objectives for use of scissors, and seven objectives addressing classroom performance and following of classroom rules and routines, such as requesting and waiting for assistance, sharing materials, and leaving the classroom for therapies (Transcript pp. 852-55). He had not mastered any of his academic goals and objectives and had made minimal progress academically (Transcript p. 740). The child's speech-language therapist testified that she had frequent discussions with the child's teacher regarding strategies to address the child's inability to process auditory information and keep up with the curriculum (Transcript p. 125). The child's second grade teacher, who testified while the hearing was in progress during the 2002-03 school year, stated that the child's IEP goals for reading reflected the second grade curriculum, and that some of the objectives were too difficult for him (Transcript p. 634). The second grade teacher noted that the child required a lot of individual attention and that even with this additional support he had difficulty performing routine classroom activities and had trouble keeping up with the pace of a second grade classroom (Transcript pp. 589-94, 608-10). The child is currently in a regular education class receiving resource room services twice a day for 45 minutes in the morning and 45 minutes in the afternoon. The child also receives group occupational therapy and group physical therapy each twice per week and speech-language therapy (group and individual) for a total of five times per week (Exhibit 13; Transcript pp. 8, 600-01). A September 2002 teacher progress report described the child as quiet and well behaved, but noted that he had difficulty following directions, was often confused by classroom routines, rarely responded to requests given to the class, was unable to keep up with the pace and activities of the day, and was often not paying attention, instead sitting quietly and staring (Exhibit 16).

        When comparing the educational benefits available to the student in a regular class, with appropriate supplementary aids and services, to the benefits provided in a special education class (Oberti, 995 F.2d at 1217-18), the relevant question is whether the student can achieve the goals of his IEP within a regular education program, with the assistance of supplementary aids or services (Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 94-21; see also, Walczak, 142 F.3d at 132-33 [holding the appropriateness of the recommended IEP is established by proof of meaningful academic and social progress]; Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120-21 [holding a more restrictive placement was required in order for student to make meaningful progress towards IEP goals]; A.S. v. Norwalk, 183 F. Supp.2d at 545-46 [holding "the appropriate yardstick is whether [the student] with appropriate supplemental aids and services, can make progress towards her IEP goals in the regular education setting"]; Mavis, 839 F. Supp. at 988 ["'[t]he relevant inquiry is whether a pupil with a handicapping condition can achieve the goal of his or her IEP within a regular education program, with the assistance of appropriate supplementary aids and services, because the IEP determines what is an appropriate education program for the pupil'" quoting Application of the Bd. of Educ., Appeal No. 90-19]).

        The record reflects that the child is not benefiting from his present regular education placement. The first grade teacher testified that the child would be appropriately placed in a 12:1+1 self-contained special education classroom because he required a small group setting with individualized attention to keep him focused and to ensure that he learned at his own pace (Transcript pp. 462-63, 490). The first grade teacher also testified that a one-to-one aide in a general education setting would not be adequate because an aide would not be able to help him process information (Transcript p. 510). The second grade teacher testified that, even with additional support, the child had difficulty performing routine classroom activities and had trouble keeping up with the pace of a second grade classroom (Transcript pp. 589-94, 608-10). She concurred with the CSE recommendation for placement, because the child benefited from small group instruction and required the support available in a 12:1+1 self-contained class (Transcript pp. 612, 626, 697). The second grade teacher opined that a one-to-one side in a mainstream setting would not be appropriate because, even with this type of support, the child would not be able to transfer academic information to other areas of the curriculum (Transcript p. 612). She also testified that the child was "…beyond a doubt the lowest functioning child that I have in my class right now" (Transcript p. 606), that he had difficulty functioning in a general education setting, and that he did not benefit socially from mainstream placement (Transcript pp. 698, 699). The resource room teacher testified that the child made minimal progress in resource room because he required so much teacher direction, and also stated that the child did not benefit from push-in resource room sessions because of his cognitive deficits and social immaturity (Transcript pp. 742-43, 757). The speech-language therapist testified that the child's severe language deficits and "profoundly deficient" ability to organize language in a classroom with the distractions created by other students made placement in a mainstream environment inappropriate (Transcript pp. 122, 126). She opined that a one-to-one assistant in the mainstream classroom would not be appropriate because "nobody sitting beside him is going to increase his language skills" (Transcript p. 127). The record indicates that the child's current program and placement were not meeting his needs. Respondent's representatives all testified that petitioners' son required a more restrictive, structured setting due to his profound language deficits and inability to organize and comprehend the language and stimuli present in a regular education classroom. A smaller, more structured environment is necessary in order for the child to benefit from school.

        Once it is determined that placement in a nonregular education setting is appropriate, the second prong of the Daniel R.R./Oberti test, "whether the school has included the child in school programs with nondisabled children to the maximum extent appropriate" must be considered (Oberti, 995 F.2d at 1218). "If the school officials have provided the maximum appropriate exposure to non-handicapped students, they have fulfilled their obligation under the [IDEA]" (Daniel R.R., 874 F.2d at 1050).

        In the instant case, respondent's CSE recommended that petitioners' son be removed from his current regular education setting and be placed in a self-contained in-district special education classroom. Respondent is required to "ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services" (34 C.F.R. § 300.551; see also, 8 NYCRR 200.6). Respondent's proposed program envisions mainstreaming opportunities in all areas except special education and provides for participation in mainstream extracurricular activities. The record reflects that the CSE considered the continuum of placements; the child's current placement was rejected on the ground that he needs a more intensive program, and an out of district 12:1+1 placement was rejected as too restrictive (Exhibit 3). I find that respondent has met the second prong of the Daniel R.R./Oberti test and has proposed including petitioners' son in school programs with nondisabled children to the maximum extent appropriate (see Daniel R.R., 874 F.2d at 1050; Oberti, 995 F.2d at 1218).²

THE APPEAL IS DISMISSED.