03-095

         Petitioner appeals from the decision of an impartial hearing officer denying her request for tuition reimbursement for a private school in which petitioner unilaterally placed her son during the 2002-03 school year. The appeal must be dismissed.

        The impartial hearing in this matter commenced in March 2003. At that time, petitioner's son was eight years old and attending the Pathways School (Pathways). Pathways is a nonpublic school, which has not been approved by the Commissioner of Education to contract with school districts for the education of students with disabilities. Respondent's director of special education characterizes Pathways as a school for children with autism spectrum disorders (Transcript p. 77). According to Pathways' co-director, however, Pathways accepts students with a variety of disabilities, including those classified as speech impaired, multiply handicapped, other health impaired and autistic (Transcript p. 336).

        School-based behavior problems surfaced when the student was attending pre-kindergarten (Exhibit 2, 4). In September 1999 petitioner enrolled her son in kindergarten, in a private school. Shortly thereafter, petitioner referred the child to respondent's Committee on Special Education (CSE) (Transcript p. 28). The CSE recommended classification as speech impaired/emotionally disabled (Transcript p. 359; Exhibit 4) and placement in a self-contained kindergarten class with a 1:1 aide (Exhibit 4). Petitioner accepted the CSE's recommendation and the student began attending public school in respondent's district. His behavior improved, and on recommendation of his teacher the 1:1 aide was removed at the end of the 1999-2000 school year (Exhibit 2).

        For the 2000-01 (first grade) school year the student attended a self-contained special education class at respondent's Greenacres Elementary School (Greenacres) (Exhibit 3). During the first half of that year his behavior worsened (Exhibits 2, 4). He engaged in physically aggressive behavior such as hitting (Exhibit A), kicking (Transcript p. 219) and throwing objects (Transcript p. 263; Exhibit A); he also demonstrated inappropriate behavior such as licking other children (Exhibit A), speaking in an abnormal voice (Transcript p. 263) and barking (Transcript p. 126). There was concern at that time regarding the student's ability to distinguish between fantasy and reality (Transcript pp. 125, 375).

        The student's behavior improved dramatically over the second half of the 2000-01 school year. The record indicates that the student received biofeedback therapy during that period (Exhibits 2, 4). It is unclear whether biofeedback was a factor in the child’s behavioral improvements. For the 2001-02 (second grade) school year the CSE recommended a self-contained classroom for language arts, social studies, math and science; speech/language therapy; and mainstreaming for homeroom and specials (Exhibit B). In September 2001, however, petitioner unilaterally enrolled the student in Pathways. To date, he has attended Pathways continually. There is no indication in this record that petitioner sought tuition reimbursement for the 2001-02 school year.

        In this appeal, petitioner requests tuition reimbursement for the 2002-03 school year. On April 5, 2002 the CSE convened to begin the student's annual review (Exhibit 1). His Pathways teacher attended the meeting. She reported that the student’s behavior had continued to improve during the 2001-02 school year and that he had demonstrated an improved ability to separate fantasy from reality (Exhibit 1). At the time of that meeting the Pathways teacher did not think it necessary to perform a functional behavioral assessment (FBA), because the student no longer exhibited behavioral problems (Transcript p. 179; Exhibit 1). Petitioner was present at the April 5 meeting. She expressed no disagreement with the teacher’s view that an FBA was unnecessary. Indeed, petitioner further confirmed that the student had no behavioral difficulties at home (Exhibit 1).

        The CSE adjourned, and postponed further review pending receipt of a psychiatric evaluation report. That psychiatric evaluation took place on June 24, 2002 at Westchester Medical Center (Exhibit 4). The CSE subsequently reconvened on August 21, 2002 to formulate the student's individualized education program (IEP) for the 2002-03 school year (Exhibit 1). The CSE considered the following materials: a social history dated February 23, 2002 (Exhibit 16); a psychological evaluation conducted on July 30, 2001 and dated August 20, 2001 (Exhibit 2); a health record report dated February 20, 2002, describing the results of a physical examination conducted on August 3, 2001 (Exhibit 15); a classroom observation conducted on February 14, 2002 (Exhibit 8); a speech and language report dated February 25, 2002, (Exhibit 10); another speech and language progress report dated February 11, 2002 (Exhibit 7); a social-emotional functioning assessment conducted on December 14, 2001 and January 10, 2002 (Exhibit 3); a psychoeducational evaluation conducted on December 27 and 28, 2001 (Exhibit 5); the student's Pathways progress report for 2001-02 (Exhibit 6); an occupational therapy progress report dated February 20, 2002 (Exhibit 9) and the psychiatric evaluation of June 24, 2002 (Exhibit 4).

        The psychological evaluation included administration of the Weschler Intelligence Scales for Children-Third Edition (WISC-III), which yielded the following scores: verbal IQ 81, performance IQ 70 and full scale IQ 73. The evaluating psychologist noted that the full scale IQ was a poor estimate of intellectual functioning due to the amount of inter-test scatter. The psychologist found that petitioner's son exhibited difficulty processing language and visual information, and that such processing difficulties contributed to his behavioral problems with impulsivity and distractibility. During testing, the student's behavior deteriorated in response to tasks that placed increased demands on language processing. The results of behavioral assessments suggested that the student’s adaptive behavior and emotional skills were age appropriate but that he was at-risk for developing school-related anxiety. The psychologist opined that petitioner's son would benefit from a highly structured learning environment and from the "development of his capacity for internal self-regulation, including self-monitoring and self-reinforcement." The psychologist recommended further testing to determine the student's learning style and to identify appropriate instructional strategies.

        The student's psychoeducational evaluation yielded the following cognitive scores on the Woodcock Johnson III: Verbal Ability 90, Thinking Ability 96 and Cognitive Efficiency 83. His General Intellectual Ability (GIA) was in the average range for his age. Academically, the student performed in the average range for reading, spelling, story recall and math calculation. He demonstrated difficulty completing math word problems, interpreting oral information, and writing complete sentences. The child's behavior was described as labile. The examiner noted that on the second day of testing the student’s behavior deteriorated and he engaged in perseverative and self-stimulatory behaviors. At times the student's language was tangential and fanciful. Toward the end of testing petitioner had to restrain her son physically to keep him from hitting or engaging in inappropriate behavior. The evaluator recommended placement in a small structured class designed to manage the student's challenging behavior. She also recommended social skills training and, in the event classroom behaviors became problematic, an FBA.

        The Pathways classroom observation revealed that petitioner's son was compliant and responsive to teacher directives. The evaluator noted that although the student was distractible and fidgety he did not disrupt the classroom. At Pathways the evaluator observed the student flapping his hands and engaging in echolalia, behavior not seen in other settings. Standardized testing (Transcript p. 140) revealed behavior problems, including attending and conduct, were judged to be clinically significant by the student's teachers.

        Due to the inconsistent nature of this child's behavior, the psychologist conducting the social-emotional functioning assessment opined that behavior issues were situation specific and might be linked to language processing challenges and/or the environment. The psychologist stated that language skills are essential to the self-regulation of behavior; she further suggested that this student's language problems interfered with his ability to acquire frustration tolerance, interact socially and counteract impulsivity. The psychologist recommended that an FBA and a functional communication assessment (FCA) be conducted, as well as further evaluation relating to a probable diagnosis of attention deficit hyperactivity disorder (ADHD). The psychologist suggested that successful elements of the student’s class at Pathways could be replicated in a less restrictive setting.

        The occupational therapist reported that petitioner's son had difficulty sizing and spacing his letters when writing and that immature sensory processing skills affected his attention, self-awareness and motor skills in the classroom. She reported that the student exhibited moderate sensory seeking behaviors. Continued occupational therapy was recommended.

        The June 2002 psychiatric report described the child's interactions as socially immature. The psychiatrist noted that petitioner's son demonstrated aggressive play themes and was mildly oppositional; she also noted language processing difficulties. The psychiatrist diagnosed petitioner's son with probable ADHD mixed type, a phonological disorder, mixed expressive/receptive language disorder and coordination disorder. The psychiatrist recommended placement in a small structured setting with the continuation of speech/language therapy and occupational therapy. She also recommended that the student participate in a social skills training group with students less impaired than he. The psychiatrist recommended medication in the event behavioral interventions proved unsuccessful.

        The student's Pathways progress report indicated that his academic skills were at the first to second grade level. The student had shown progress in reading and math and was increasing his variety of play schemes. Teachers reported that the student was working to decrease inappropriate behavior such as lying and "borrowing" other children’s belongings. His program goals included increasing on-task behavior, reducing impulsivity and distractibility, improving social skills, strengthening knowledge of social rules and solidifying graphomotor skills.

        Upon completion of its review the CSE changed the student's classification to other health impaired, based on evidence that the child suffered from probable ADHD (Exhibits 1, 4; see, 34 CFR 300.7[c][9]; 8 NYCRR 200.1[zz][10]). The student's classification is not in dispute.

        The CSE developed an IEP for the 2002-03 school year recommending public school placement in a 12:1:1 special class with mainstreaming for homeroom, specials and reading, and related services of speech/language therapy and occupational therapy twice weekly (Exhibit 1).

        Respondent's director of special education (Director) forwarded a copy of the proposed IEP to petitioner on August 22, 2002 (Exhibit 1). By letter dated September 12, 2002 petitioner informed respondent that she disagreed with the IEP's recommended placement, that she planned to send her son to Pathways and that she would be seeking reimbursement from respondent for the Pathways tuition (Exhibit 13). Petitioner's letter consisted of three short sentences. She gave no reasons for her disagreement with the placement recommendation and did not specifically request an impartial hearing. Petitioner subsequently submitted a "Request For Due Process" form in January 2003. Therein, she identified two objections: that the IEP failed to offer an effective plan for behavior management and that the IEP's goals and objectives were vague and not measurable (Exhibit 14).

        An impartial hearing took place on March 4, April 2 and April 29, 2003. The hearing officer issued his decision on August 28, 2003, upholding the CSE's determinations and denying tuition reimbursement. This appeal ensued.

        Petitioner asks me to vacate the hearing officer's decision denying reimbursement for Pathways, and to award such reimbursement. Tuition reimbursement is a remedy for the denial of a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]). A FAPE includes special education and related services provided in conformity with an IEP as required by the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1487; see, § 1401[8]). It is the IEP that tailors a FAPE to the unique needs of the child (Bd. of Educ. v. Rowley, 458 U.S. 176, 181 [1982]). By arguing that her son's IEP failed to offer an effective plan for behavior management and that its goals and objectives were vague and not measurable, petitioner asks me to find that the IEP was legally insufficient to provide her son with a FAPE.

        A board of education may be required to pay for educational services obtained for a student by his or her parent, only 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 (Sch. Comm. of Burlington v. Dep't. of Educ. of Mass, 471 U.S. 359 [1985]; Application of a Child with a Disability, Appeal No. 03-088). The school district bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Bd. of Educ., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 03-088; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

        An appropriate education for a student with a disability is one in which IEP goals are reasonably calculated to enable the child to receive meaningful educational benefits (Rowley, 458 U.S. at, 192, supra; Walczak, 142 F.3d 119, supra), and the recommended program is in the least restrictive environment for the child (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]; 8 NYCRR 200.1[cc]; Application of a Child with a Disability, Appeal No. 02-032). The district must also establish that it complied with IDEA's procedural requirements (Rowley, 458 U.S. at 206-07, supra; M.S., 231 F.3d at 102, supra; Application of a Child with a Disability, Appeal No. 02-025).

        Petitioner contends that the IEP failed to offer an effective plan for behavior management, in part because the CSE failed to obtain an FBA as part of its evaluation. The Commissioner's Regulations explicitly require the individual initial evaluation to 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]; Application of a Child with a Disability, Appeal No. 01-094). Further, the IDEA and Commissioner's regulations mandate that a CSE must consider, "when appropriate," strategies and supports to address student behavior that impedes his or her learning or that of others (20 U.S.C. § 1414[d][3][B][i]; 8 NYCRR 200.4 [d][3]).

        The Regulations of the Commissioner of Education define an FBA as:

…the process of determining why a student engages in behaviors that impede learning and how the student’s behavior relates to the environment. The functional behavioral assessment includes, but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it. (8 NYCRR 200.1[r])

        The record confirms that the student exhibited school-based behavior problems beginning in preschool (Exhibit 2). In kindergarten his behavior problems were significant enough to warrant the services of a 1:1 aide (Transcript p. 200, Exhibit 2). For much of first grade the student exhibited physically aggressive behavior such as hitting and kicking; and inappropriate behaviors such as licking other children and barking (Exhibit A). There were questions surrounding the student's ability to separate fantasy from reality (Transcript pp. 40, 124, 278). However, both school staff and petitioner agreed that the student's behavior improved following February break and stabilized for the remainder of the school year (Transcript pp. 29, 219, 234, 288, 374: Exhibits B, 2, 4).

        For second grade petitioner enrolled her son in the Pathways School. Pathways staff testified that when frustrated the student, at times, demonstrated physically aggressive behavior and problems with impulse control; but that both had lessened over time (Transcript pp. 320-322). Evidence suggested that the student's "lying" was a problem in some instances (Exhibits 3, 6). In December 2001 a psychologist hired by the parent observed the student in his classroom at Pathways (Exhibit 3). The psychologist reported that the student was compliant with and responsive to teacher directed activities. She noted that the student was distractible and fidgety but not disruptive to the rest of the class. She reported that the student could be redirected and refocused by his teachers. An additional classroom observation was conducted by district personnel in February 2002. The school psychologist reported that the student was generally attentive and compliant, and followed the teacher's directions (Exhibit 8; Transcript p. 182). The speech therapist reported that the student appeared to be attending to the class routine and participated when called on (Exhibit 10; Transcript p. 252).

        Two CSE meetings were held to discuss the student's educational needs for the 2002-03 school year. The student's IEP indicated that he could be impulsive and copy the inappropriate behaviors of others (Exhibit 1). In addition it indicated that sometimes noncompliance and lying interfered with social relationships. The student's teacher from Pathways was present for the first CSE meeting held in April 2002. According to CSE meeting minutes, the teacher reported that there had been major changes in the student's behavior, that his behavior continued to improve and inappropriate behavior could be controlled through disapproving facial expressions and verbal cueing. The IEP further stated "Although recent evaluations indicates problems with sustained attention, his teacher does not see that as a problem in the class." Petitioner reportedly indicated that the student was not experiencing behavior problems at home. Finally, meeting minutes indicate that his teacher felt an FBA was not necessary because the student no longer presented behavior problems in class or at school. The parent did not argue the validity of the statements contained in the IEP.

        Despite the fact that petitioner, the student's teacher, and observations by other district personnel indicated that the student's behavior was currently under control, the CSE went on to consider the strategies and supports that would be necessary to maintain the student's appropriate behavior should he transition back to a district classroom. The CSE reconvened on August 21, 2002 to consider the results of the student's psychiatric evaluation and develop an IEP for the 2002-03 school year. The psychiatric evaluation, coupled with existing evaluations and classroom observations, teacher reports, and information from the parent provided sufficient evaluative information upon which to develop an appropriate IEP. The Director of Special Education testified that notwithstanding reports of the student's improved behavior the CSE was prepared to conduct an FBA should the student present with interfering behaviors when he returned to the public school (Transcript pp. 59, 70). The Director further explained that this would allow the CSE to take into account environmental factors in the new placement that might contribute to inappropriate behaviors.

        In addition to placement in a small self-contained classroom, the student's IEP outlined strategies such as redirection and implementation of a reward system that were designed to maintain his appropriate behavior (Exhibit 1). The teacher of the proposed classroom described in detail her classroom management system, a system very similar to the one employed by Pathways that had been successful in controlling the student's behavior (Transcript pp. 293-295). In fact the strategies and supports recommended by the CSE were the same type of tools employed by Pathways (Transcript pp. 322-23); the same tools that, according to the petitioner, led to her son's academic and behavioral successes there. Given that the student's behavior could be effectively controlled using only the classroom management system at Pathways and that the CSE proposed program contained the same elements of classroom management, I cannot conclude that an FBA was required in this instance. Here, extensive assessments pertaining to the student's behavior were conducted, the assessments were considered by the CSE, the student's classroom behavior had significantly improved, and proactive positive behavioral supports were incorporated into the offered IEP to reinforce appropriate behavior. Under the circumstances of this case, I find that the absence of a formal FBA did not result in the formulation of an IEP that was not reasonably calculated to provide educational benefit.

        Petitioner also argues that her son's IEP was legally insufficient because its goals and objectives were vague and not measurable. Annual goals are intended to be statements describing what a child with a disability can reasonably be expected to accomplish within a 12-month period (34 CFR Part 300, Appendix A, Question 1); short-term instructional objectives are measurable, intermediate steps between a child's present levels of educational performance and the child's annual goals (34 CFR Part 300, Appendix A, Question 1; Application of a Child with a Disability, Appeal No. 95-15).

        I find that the student's IEP goals were, in fact, overly broad inasmuch as they did not identify the extent or level to which the student would demonstrate identified skills, behavior or knowledge. However, the goals were appropriately supported by more specific short-term objectives outlining targeted sub-skills, identifying criteria for mastery and setting forth procedures to be used for measuring progress. Additionally, petitioner was present for the two CSE meetings in which goals and objectives were developed and reviewed. During the hearing, respondent's witnesses testified at length about how the student's goals and objectives would be implemented and measured (Transcript pp. 106-114, 133-35, 152, 253-57, 268, 299, 300-03). Although the IEP goals could have been stated with more precision, I find that they were substantively appropriate, and that the supporting short-term objectives provided the requisite specificity to enable the student's teachers and petitioner to understand the CSE's expectations (Application of the Bd. of Educ. of the Roslyn Union Free Sch. Dist., Appeal No. 02-025; Application of a Child with a Disability, Appeal No. 95-15). Here, any procedural or substantive inadequacies in IEP content, were not of a number or nature that constituted a denial of FAPE (Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]; see also, J.D. ex. rel. J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]).

        Petitioner's remaining contentions are raised for the first time on appeal. She does so, moreover, in a memorandum of law, effectively denying respondent any meaningful opportunity to respond. I find that such issues are not properly before me in this appeal because they were not raised below (Application of a Child with a Disability, Appeal No. 01-024; Application of a Child with a Disability, Appeal No. 99-060; Application of a Child with a Disability, Appeal No. 98-14).

        In light of the foregoing, I find that respondent has met its burden demonstrating the appropriateness of the program recommended by the CSE and, consequently, that petitioner's claim for tuition reimbursement was properly denied.

THE APPEAL IS DISMISSED.