Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Oceanside Union Free School District
Long Island Advocacy Center, Inc., attorney for petitioner, Regina E. Brandow, Esq., of counsel
Ehrlich, Frazer & Feldman, attorney for respondent, Jacob S. Feldman, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which found that respondent offered her daughter a free appropriate public education (FAPE), in a proposed kindergarten placement, for the 2003-04 school year. The appeal must be dismissed.
Before addressing the merits of this appeal, I must address two procedural issues. First, respondent made two requests to the Office of State Review for extensions of time to file an answer. The extensions of time were approved; however, both respondent's answer and memorandum of law exceeded the page limit as required by 8 NYCRR 279.8. Respondent was given leave to resubmit in conformance with applicable page limitation requirements. A further request for an extension due to extenuating circumstances was granted.
The Regulations of the Commissioner of Education pertaining to the practice on review of impartial hearings for students with disabilities were amended and became effective on January 1, 2004 (see 8 NYCRR Part 279). The regulations, as amended, contain a new provision setting forth the proper form of pleadings and memoranda of law submitted to the State Review Officer (SRO) (8 NYCRR 279.8). The new regulation includes a provision that the memorandum of law shall not exceed 20 pages in length (8 NYCRR 279.8[a]), and specifically states that documents that fail to comply with these requirements may be rejected at the sole discretion of the SRO (8 NYCRR 279.8[a]).
The SRO received the amended answer and memorandum on July 15, 2004. Although the amended answer was in compliance with the regulations, respondent’s amended memorandum of law still exceeded the page limitations set forth in the regulations. In a letter received July 18, 2004, petitioner requested that the SRO reject respondent’s memorandum of law for failure to conform to the state regulation. On July 21, 2004, respondent requested that the length of the memorandum be excused alleging that the petition was not properly drafted and therefore, a shorter response was not possible. I am not persuaded by respondent’s reason for submitting a memorandum of law in excess of 20 pages, especially in light of the fact that respondent was on notice to conform to the page limitation and the fact that the amended answer complied with the regulations. Petitioner's request that the SRO reject respondent's memorandum of law is granted and I will not consider the document.
Second, petitioner has submitted on appeal an affidavit from an employee of Long Island Parent Center of Sinergia, Inc. (LIPC) dated April 23, 2004 (Pet. Ex. A). In the affidavit, the employee states that LIPC received the July 15, 2003 preliminary individualized education program (IEP) on or about August 1, 2003 but did not send a copy to the parent. The employee's sworn statement was made after the impartial hearing had concluded. In its amended answer, respondent objects to the submission of the affidavit (Answer ¶ 62).
Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision if such evidence were unavailable at the time of the hearing or when such evidence is necessary to enable the SRO to render a decision (Application of a Child with a Disability, Appeal No. 03-054; Application of the Bd. of Educ., Appeal No. 03-022; Application of a Child with a Disability, Appeal No. 02-098; Application of the Bd. of Educ., Appeal No. 02-024). Since petitioner had the opportunity to have the witness testify at the hearing, I will exercise my discretion and not accept the affidavit (Application of a Child with a Disability, Appeal No. 03-078; Application of a Child with a Disability, Appeal No. 03-053). In addition, this affidavit is not necessary for me to consider to render a decision because I find the hearing testimony of petitioner to be credible regarding receipt of the IEP.
At the commencement of the impartial hearing on October 15, 2003, petitioner's daughter was four years and ten months old, classified as multiply disabled (Tr. pp. 571-72, 584), and attending a district approved pendency placement1 kindergarten program at the School for Language and Communication Development (SCLD) (Tr. pp. 595, 597). There is no dispute about the child’s classification (Pet. ¶ 14), evaluations, or related services (Tr. p. 9).
When she was 18 months old, petitioner's daughter began receiving early intervention special education and speech-language services to address her lack of verbal communication skills (Tr. pp. 541-42). In September 2001, when she was approximately two and a half years old, the child transitioned from early intervention to the Committee on Preschool Special Education (CPSE) which recommended placement in a program identified as Just Kids Preschool (Just Kids), where she was placed in a class with a student to staff ratio of 8:1+2 (Tr. pp. 542-43). At the urging of petitioner, who believed that the recommended 8:1+2 class size was too small, the CPSE placed the child in a 12:1+2 language based, self-contained class with the related service of speech-language therapy (Tr. p. 543).
In January 2002, the child was transferred into an integrated class with nine nondisabled children, nine children with special education needs, one general education teacher, one special education teacher, and one general education teacher assistant (Tr. pp. 545-46). She continued to receive related services. According to the child's parent, at the end of the 2001-02 school year the child discontinued the integrated class placement at Just Kids and the teacher who had been the child’s inclusion class teacher recommended that the child be returned to the 12:1+2 setting and be evaluated for occupational therapy (OT) and physical therapy (PT) (Tr. 549). In July 2002 the CPSE evaluated the child’s needs and recommended that, for the 2002-03 school year, the child continue to participate in a full day, center based preschool program with a staffing ratio of 12:1+2 (Parent Ex. 18 at p. 3). With petitioner's agreement, the child remained in the 12:1+2 setting at Just Kids for the 2002-03 school year (Tr. p. 39) and received speech-language, physical and occupational therapies as related services (Tr. pp. 550-51; Parent Ex. 18 at p. 3).
To determine her continued eligibility for special education services, the CPSE referred the child for a series of evaluations in May 2003 (Dist. Ex. 1, Parent Exs. 2, 3, 4). According to a social history/parent interview update, the child presented delays in all areas except for social functioning (Parent Ex. 2 at p. 1). A psychological/developmental evaluation reported that administration of the Stanford-Binet Intelligence Scale: IV indicated cognitive functioning within the "slow learner" range (Parent Ex. 3 at p. 5). Subtest scores indicated that the child's visual-motor and visual-spatial abilities were significantly better developed than her verbal/language abilities (id.). Her grapho-motor skills, as measured by the Beery Test of Visual Motor Integration (VMI) were slightly below age expectancy (id.). Her adaptive behavior, as measured by the Vineland Adaptive Behavior Scales: Interview Edition (Vineland), was in the low range of adaptive functioning (Parent Ex. 3 at pp. 5-6). Vineland scores also suggested communication, socialization and motor skills in the low range (Parent Ex. 3 at p. 6) and daily living skills in the moderately low range (id.). Formal speech and language testing using the Preschool Language Scale - 4 (PLS-4) indicated that the child's overall language skills were equivalent to that of a two year, nine-month-old child (receptive language equivalent to a child three years, four months; expressive language equivalent to a child two years, five months) (Parent Ex. 4 at p. 4). The speech and language evaluation report stated that test results were affected by the child's poor speech intelligibility, limited grammar and vocabulary skills, and auditory processing difficulties (id.). Delay in speech sound development was noted per the child's performance on the Goldman-Fristoe Test of Articulation 2 (GFTA 2) (Parent Ex. 4 at pp. 2-4). Errors in speech sound production and the presence of phonological processes resulted in intelligibility of speech that was considered to be poor in related and unrelated contexts (Parent Ex. 4 at pp. 3-4). Sentences were limited to primarily three-word phrases (Parent Ex. 4 at p. 2). The child was described as presenting with "apraxic-like tendencies," as she tended to exhibit motor-planning difficulties and was unable to coordinate her articulators (Parent Ex. 4 at p. 3). The child demonstrated adequate attention skills and was cooperative for all tasks (Parent Ex. 4 at p. 2). Results of an educational evaluation using the Learning Accomplishment Profile Diagnostic Edition (LAP-D) (Dist. Ex. 1 at p. 1) indicated that the child demonstrated age-appropriate levels in areas of cognitive matching, social/emotional, and self-help skills (Dist. Ex. 1 at p. 4). The child demonstrated below age-expected levels in the areas of cognitive counting, fine motor writing, fine motor manipulation, and gross motor skills (id.).
Medically, the child has a diagnoses of esotropia (eye muscle coordination deficit) and secondarily with amblyopia (unequal vision) (Dist. Ex. 3 at p. 4). According to minutes of a July 15, 2003 Committee on Special Education (CSE) meeting, the child may experience some difficulty with balance because of the esotropia, but generally, her vision "contributes to her difficulties in a minor way" (Tr. p. 300; Dist. Ex. 3 at p. 4).
In June 2003, petitioner participated in a CPSE meeting to determine a 2003 summer program for the child and to begin discussion of the child’s CSE classification (Tr. p. 557). At this meeting, the CPSE recommended continuation of the child’s 12:1+2 self-contained extended school year placement at Just Kids (Tr. p. 66), with an additional weekly PT session (Tr. p. 559). In addition, a discussion of an in-district placement for the 2003-04 school year began, at which time the parent expressed her concern that her child was not ready for kindergarten (Tr. pp. 565-66). No classification was decided at the conclusion of the meeting (Tr. pp. 557, 571).
On July 15, 2003 the CSE met to develop the child’s IEP for the 2003-04 school year (Dist. Ex. 3 at p. 1). The CSE agreed to classify the child as multiply disabled (Tr. pp. 571-72, 584) and recommended an in-district integrated kindergarten placement with the related services of OT individually, once a week for 30 minutes, PT individually once a week for 30 minutes and in a group setting once a week for 30 minutes, and speech and language related services individually three times a week for 30 minutes and in a group setting once a week for 30 minutes (Tr. p. 83; Dist. Ex. 3 at p. 1). The child's occupational and the physical therapists were not in attendance at the CSE meeting (Dist. Ex. 3 at p. 4), but the CSE agreed to have a subcommittee reconvene by the end of September to review the child’s goals and objectives in these areas (Tr. pp. 582-83; Dist. Ex. 3 at p. 5). The recommended integrated class included eighteen nondisabled students and five classified students with a general education teacher, an aide, and a special education teacher or teaching assistant certified in special education (Tr. pp. 95-96; Dist. Ex. 5). The CSE Chairperson testified that although the CSE believed some of the child's delays were significant, the committee decided that she would still benefit from participation in a less restrictive program with typical peers (Tr. p. 100).
Within two days after the July 15, 2003 CSE meeting, petitioner contacted Long Island Parent Center of Sinergia, Inc. (LIPC) for special education advocacy services and signed a consent form, dated July 17, 2003, authorizing the district to release copies of her child’s records to LIPC (Parent Ex. 16). LIPC faxed a copy of the consent form to the district on July 18, 2003 (id.). According to petitioner, approximately one week later, LIPC informed petitioner that they would be unable to assist her and informed her that she should seek legal assistance (Pet. ¶ 16).
Petitioner disagreed with the appropriateness of the proposed in-district inclusion class placement for the 2003-04 school year (Tr. p. 6), and requested an impartial hearing by letter dated August 27, 2003 (Tr. p. 638; Parent Ex. 15). Shortly after the September 3, 2003 start of the 2003-04 school year (Tr. p. 117), both parties agreed to a pendency placement at the School for Language Communication and Development (SLCD) where the child began to attend on September 17, 2003 (Tr. p. 595). Placement at SLCD, which the child attended for the duration of the hearings, was considered a kindergarten placement (Tr. pp. 6-8). Approximately two weeks after the school year commenced, petitioner received both the June and July IEP’s (Tr. p. 806; Parent Ex. 11). The hearings, seven in all, began on October 15, 2003 and ended on February 6, 2004. The impartial hearing officer issued a decision on March 19, 2004. He decided in favor of respondent, upholding the July 15, 2003 IEP and finding the proposed placement in the district’s integrated kindergarten for the 2003-04 school year was appropriate and was the least restrictive environment (LRE) for the child.
Petitioner seeks a determination that respondent denied her daughter a FAPE asserting that: 1) the July 15, 2003 IEP and recommended placement and program were inappropriate; 2) the hearing officer disregarded the parent’s due process rights in his determination that all procedural due process rights were afforded regarding the July 15, 2003 CSE meeting and receipt of the July IEP document; 3) the hearing officer erred by basing his decision on subjective testimony rather than objective criteria provided in documentary evidence; and 4) the hearing officer “improperly considered subjective testimony beyond the timeframe and scope as determined by the issue to be resolved” (Pet. ¶ 31).
The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1400 et seq.) is to ensure that children with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]). A FAPE includes special education and related services provided in conformity with an IEP (20 U.S.C. § 1401), and it is the student's IEP that tailors a student's program to his or her unique needs (Bd. of Educ. v. Rowley, 458 U.S. 176, 181 ). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 ; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
In order to meet its burden to show that it offered to provide a student with a FAPE, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA and (b) that the IEP that its CSE developed for the student through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; M.S., 231 F.3d at 102; Application of a Child with a Disability, Appeal No. 02-025). Procedural flaws do not automatically require a finding of a denial of FAPE, but procedural inadequacies that individually or cumulatively result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP, clearly constitute a denial of FAPE (W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D. Conn. 2001]; see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; Evans v. Bd. of Educ., 930 F.Supp. 83, 93; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]; Application of a Child with a Disability, Appeal No. 02-041; Application of a Child with a Disability, Appeal No. 02-015). The program recommended by the CSE must also be provided in the LRE (20 U.S.C. § 1412[a]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]).
An appropriate educational 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 (Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, 01-109; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).
The IEP is the "modus operandi" of the IDEA (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 ). Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401(11); 34 C.F.R. § 300.340[a]; 8 NYCRR 200.1[y]). The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction (20 U.S.C. § 1414(d)(2)(A); 34 C.F.R. § 300.342[a]).
I will first address petitioner’s claim that her due process rights were violated by respondent’s failure to provide petitioner with her child’s IEP until after the school year had commenced. The record indicates that the July 15, 2003 IEP was not sent directly to the parent until two weeks after the school year had begun (Tr. p. 633; Parent Ex. 11). Although the district did not provide petitioner with a copy of the July IEP before the school year began, the district testified that it did send a copy of the IEP to LIPC on or around August 1, 2003 (Tr. pp. 756-57) per petitioner’s signed consent form from July 2003 authorizing the district to release copies of the child’s records to LIPC (Parent Ex. 16). Petitioner testified that she never told the district that LIPC was representing her but also testified that she never told the district not to send information to LIPC after LIPC notified her that they could not represent her (Tr. pp. 664-65). It is reasonable to conclude from the record that due to this lack of communication, respondent assumed that the LIPC advocate was assisting petitioner when it sent a copy of the July 2003 IEP to LIPC; and therefore, the July 2003 IEP would have been available to the parent at that time. The IDEA requires districts to provide a copy of an IEP to parents to ensure their participation in the IEP process (34 C.F.R. § 300.345[f]; 64 Fed. Reg. 12587 [March 12, 1999]; 8 NYCRR 200.4[e][d]). In addition, SROs have held that a board of education's failure to provide a child's parents with a timely IEP may afford a basis for concluding that the board did not offer an appropriate placement to the child (Application of a Child with a Disability, Appeal No. 00-095; Applications of the Bd. of Educ. and a Child with a Disability, Appeal Nos. 00-091 and 01-018; Application of a Child with a Disability, Appeal No. 00-084; Application of a Child with a Disability, Appeal No. 99-081).
In order to determine if petitioner’s receipt of the IEP two weeks after the school year began resulted in a denial of FAPE, I must conclude that this delay seriously infringed on the parent's participation in the creation or formulation of the IEP or that it resulted in a loss of an educational opportunity or educational benefits for the child. The record shows that petitioner actively participated in the input, creation and formulation of the IEP at the July 15, 2003 CSE meeting (Tr. pp. 156, 356, 571-75) and had the opportunity to express disagreement and concerns regarding the mastery levels in the goals and objectives of the proposed program at that meeting (Tr. pp. 583-85). Petitioner attended the three-hour CSE meeting (Tr. p. 618) with her advocate (Tr. p. 615) and presented documentation in the form of letters from her child’s doctors (Tr. pp. 573-74, 619-20; Parent Exs. 17, 19). Petitioner's knowledge of the proposed IEP from her participation at the CSE meeting is further evidenced by her initial filing for a due process request on August 11, 2003 disputing the appropriateness of the IEP placement (Pet. ¶ 18; Parent Ex. 14) before receiving a copy of the IEP. Based on petitioner's participation and involvement at the July 15, 2003 CSE meeting, I find that receiving the IEP two weeks after the start of the school year and not possessing a copy of the IEP for the period between the date of the CSE meeting and the date petitioner filed for a due process hearing, did not deprive petitioner of the opportunity for meaningful participation in developing, reviewing, and revising the IEP. In addition, since the child's pendency placement at the start of the school year diverted her, per petitioner's request, from ever attending the proposed in-district program, the child did not experience a loss of educational opportunity or loss of benefit as a result of the parent's receipt of the IEP after the in-district school year began. I find that the procedural inadequacies alleged here were not of a number or nature that would constitute 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. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]).
I turn now to the question of whether respondent met its burden of providing a FAPE by developing an IEP reasonably calculated to provide educational benefit to the child (Bd. of Educ. v. Rowley, 458 US 176, 206-207 ). The Second Circuit has clarified this standard by observing that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]; see Walczak, 142 F.3d at 130).
Petitioner argues that there were no new progress reports or evaluations provided by the district for the July 15, 2003 CSE meeting to indicate, confirm or suggest that the child's placement be changed (Pet. ¶ 13). However, respondent's witness testimony demonstrates that the CSE relied on timely evaluations along with appropriate goals and objectives to support its burden of proof that the IEP would have provided educational benefit. The IEP for the 2003-04 school year developed at the July 15, 2003 CSE meeting reflects a thorough and comprehensive evaluation process to establish the child's needs (Tr. p. 67). The July 15, 2003 IEP (Dist. Ex. 3 at p. 5) states that the CSE relied on information from the child's 7/19/02 IEP, a 1/1/03 PT progress summary, a 1/18/03 speech-language progress summary, a 1/20/03 education progress report, a 3/1/03 OT evaluation report, 5/7/03 psychological evaluation report, a 5/9/03 classroom observation report, a 5/15/03 educational evaluation, a 5/15/03 speech-language evaluation, a 6/2/03 pediatrician's letter, and a 6/24/03 ophthalmologist's letter.
The July 2003 IEP (Dist. Ex. 3) addresses the parent's concern regarding the child's ability to transition to a kindergarten program. The parent was particularly concerned about the child's small stature, and believed this would impact her performance in kindergarten. Concerns regarding the child's vision are noted on the IEP. The record reflects that the child's visual deficits "contribute to her difficulties in a minor way" (Tr. p. 75; Dist. Ex. 3 at p. 4). The preschool teacher testified that the child’s stature "didn't have anything to do with her ability to perform in the classroom and get along with other children" (Tr. p. 804). The district speech and language pathologist provided similar testimony (see Tr. pp. 377-78). The CSE Chairperson's testimony provided a thorough description of the CSE's consideration of the parent's concerns. She testified that, based on the information the CSE had from the child's preschool teacher and from district staff, "[i]t didn't seem as though her size really played a role in how she interacts with other children, larger or smaller than she is" (Tr. pp. 80-82, 156-57).
The district speech and language therapist who works in the collaborative kindergarten setting, observed the child in her class at Just Kids in February 2003 to determine if the district had an appropriate placement for the child (Tr. pp. 333-34). As early as February 2003, the child was observed to interact with peers, manage herself, retrieve toys, and play socially with the other children (Tr. p. 336). Staff at the Just Kids preschool told the speech language therapist that even though the child is difficult to understand at times, she is able to make her needs known and get what she wants (Tr. p. 337). The child was described as having leadership abilities (Tr. pp. 337-38) and as being a child who takes risks and makes attempts (Tr. p. 349). The witness was also impressed with the child's ability to comment and to object in her self-management and in her interaction with peers in the classroom (Tr. p. 339).
The July IEP included appropriate objective criteria for ascertaining whether the child was achieving her instructional objectives (Dist. Ex. 3). The short-term objectives are subskills of the goals and provide specific information as to what the child would be doing to address each need. Of particular note is the appropriateness of the sequential order of goals. For example, the specific skills delineated under the speech and language goal targeting oral motor abilities are to be completed by a projected date of January 15 (Dist. Ex. 3 at p. 6). The next goal targets improvement in articulation and phonological skills by June 15 (id.). This sequencing of goals would allow the child to demonstrate improvement in her oral motor abilities before she addresses her articulation needs, especially since the record made reference to the child's "apraxic-like tendencies" (Parent Ex. 4 at p. 4). The speech and language goals and objectives are written in a thorough and logical sequence to promote the child's progress. Similar sequencing appears to have been used in developing all of the goals and objectives included in the July 2003 IEP.
I must note that the occupational and the physical therapists were not present at the July 15, 2003 meeting. However, I find that the CSE adequately considered the child's OT and PT goals and objectives. The CSE had a list of proposed OT and PT goals and objectives from Just Kids at the July 2003 CSE meeting (Tr. p. 738). The CSE reviewed each goal and objective individually and used them to create goals and objectives that were appropriate and reflected the child's needs (Tr. p 739). The CSE also stipulated in the IEP that it would review these goals and objectives by the end of September 2003 to ensure their continued appropriateness (id.). Based upon the testimony and the exhibits, which reflect a thorough examination of progress reports and evaluations along with appropriate and logical goals and objectives, I find that respondent has met its burden of demonstrating that the July 2003 IEP was reasonably calculated to provide educational benefit to the child.
Finally, petitioner claims that the proposed placement is inappropriate because the CSE erred by not considering a "more restrictive environment" for the child. Petitioner misconstrues the purpose behind the IDEA. In selecting an appropriate program, school districts must comply with the LRE requirement of the IDEA, which requires that students with disabilities be educated with nondisabled students "to the maximum extent appropriate" (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.1[cc]; see 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section 1, Question 1). There is a strong preference for mainstreaming children with disabilities in regular education classrooms whenever possible (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 [2d Cir. 2003]; Walczak, 142 F.3d at 122; see Rowley, 458 U.S. at 202). Special education and related services must be provided in the least restrictive setting consistent with a child's needs (Walczak, 142 F.3d at 122). Removal of the child to special classes or separate schooling "occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily" (34 C.F.R. § 300.550[b] [emphasis added]; see Walczak, 142 F.3d at 122).
Respondent's speech therapist testified that after observing the child at her preschool setting (Tr. p. 333), reading evaluations, and speaking with preschool personnel and with the child’s mother, she agreed with the CSE’s recommended placement (Tr. pp. 367-68). The special educator for the proposed placement testified that based on the goals and objectives in the child’s IEP there was nothing that would cause a concern or would keep her from being able to service the child in a collaborative setting (Tr. pp. 439-40). The special educator also described a similar child in the previous school year with similar goals and objectives who was accommodated and supported via curriculum modifications in the proposed program (Tr. pp. 440-42). Although the CSE Chairperson acknowledged the child has some delays in speech communication, she did testify that based on the educational evaluation presented by the district's evaluation site coordinator (Tr. p. 56), the child's self-help and socialization skills were within normal limits (Tr. pp. 56-57) and these skills would allow the child, “to handle what is going to be required of her on the kindergarten level” (Tr. p. 63).
Furthermore, testimony from both the CSE Chairperson and the district speech and language therapist reflected that the child responds to positive reinforcement and “rises to the occasion” when she has good role models (Tr. P. 362). The district speech and language therapist testified that as a result of her conversation with the classroom teacher at the child's preschool, it was her impression that a placement where the child would have good role models and access to mainstream peers would be beneficial to her, and would be preferable to a placement with children who were all challenged with significant delays (Tr. pp. 362-63). In testimony, the district special education teacher explained that classified youngsters benefit from seeing positive peer models because they are hearing the proper use of language, they are learning social skills that they might not necessarily be exposed to in a self-contained classroom, they see more appropriate behavior, and they are motivated to get involved when they observe their nondisabled peers participating in activities (Tr. p. 436). Testimony by the Just Kids preschool teacher revealed that the child was very responsive to children her age, imitated things that the other children said or did (Tr. p. 790), and was an active participant in integrated activities (Tr. pp. 790-91).
In the instant case, based on the information and expertise regarding an appropriate placement from professional staff at the CSE meeting (Tr. pp. 77-78, 82-84), the CSE determined that the child could succeed in the regular education classroom with the appropriate supports and services (Tr. pp. 90-91, 100). Based on the record before me, I find that the CSE fully complied with the IDEA's LRE requirements in selecting the general education integrated classroom with supplementary aids and support services as the LRE for petitioner's daughter. I find that the proposed integrated kindergarten program was the least restrictive setting for petitioner’s daughter for the 2003-04 school year.
As noted earlier, the evaluations and reports considered by the CSE were extensive and identified the child’s strengths and weaknesses. The IEP reflected these evaluations in measurable goals and objectives that were based on the needs of the child. The child was to receive appropriate related services and opportunities for peer modeling to assist with her speech development. The record reflects the child’s placement in an integrated classroom staffed by a regular education teacher, a special education teacher or teaching assistant certified in special education, and an aide (Tr. pp. 95-96, 420-21). After careful review of the exhibits and testimony before me, I find that the IEP developed at the July 15, 2003 CSE meeting was reasonably calculated to confer educational benefits to this child, and thus respondent offered the child a FAPE.
I have considered petitioner's remaining contentions and find them to be without merit.
THE APPEAL IS DISMISSED.
1 Both state and federal law require that a child remain in his or her then current placement, unless the child’s parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the child (20 U.S.C. § 1415[j]; Education Law § 4404). Pendency has the effect of an automatic injunction, which is imposed without regard to such factors as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D. v. Ambach, 694 F.2d 904 [2d. Cir. 1982]; Drinker v. Colonial School District, 78 F.3d 859 [3d Cir. 1996].