Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Katonah-Lewisboro Union Free School District
Wendy K. Brandenburg, LLC, attorney for petitioners, Wendy K. Brandenburg, Esq., of counsel
Shaw & Perelson, LLP, attorney for respondent, Beth L. Sims, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which determined that respondent offered to provide a free appropriate public education (FAPE) to their daughter for the 2003-04 school year. The appeal must be dismissed.
At the time of the hearing, petitioners' daughter was 11 years old and attended a regular education sixth grade class at respondent's John Jay Middle School. The student has been classified as other health impaired (OHI) by respondent's Committee on Special Education (CSE). Petitioners' daughter has medical diagnoses of Tourette syndrome, obsessive-compulsive disorder (OCD) and an attention deficit hyperactivity disorder (ADHD) (Exhibits 30, 116, GG, FFF). The student's classification is not in dispute.
The student was first classified by respondent's CSE on February 6, 2002, as OHI, based on her medical diagnoses and school performance (Exhibit 18). According to the individualized education program (IEP), the student had social skills and attentional deficits that interfered with her ability to make progress in the general education curriculum. The student was described as having superior cognitive potential, as well as above average decoding, comprehension, and reading fluency. The student also demonstrated above average math, writing and spelling skills. Relative weaknesses were noted in rote memory. The student exhibited vocal and motor tics, obsessive-compulsive behaviors and attending difficulties. Although she was described as a social child, the IEP indicated the student could antagonize her peers. She reportedly required extra teacher support to sustain her attention, facilitate appropriate peer relationships and manage perfectionist tendencies. The committee recommended that the student receive individual counseling once per week for 30 minutes. The committee also recommended the services of a 1:1 teaching assistant for eight weeks, however, this was described as a diagnostic service.
On April 10, 2002, the CSE reconvened to discuss whether the student continued to require the services of a 1:1 teaching assistant (Exhibit 3). Based upon an updated functional behavioral assessment (FBA) and behavior intervention plan (BIP), as well as an observation of the student, the CSE concluded that she did not (Exhibit 3). At this meeting two program modifications were added to the student's IEP: the need for an updated BIP and an agreement to reduce the amount of homework, without compromising content. Also at this same meeting, the CSE developed the student's IEP for the 2002-03 school year (Exhibit 4). Except for the elimination of the teaching assistant and the addition of the two program modifications, the CSE's recommendations for services, goals and objectives remained the same as in the student's initial IEP developed two months earlier (Exhibit 4).
The student continued to demonstrate problems with organization and socialization during fifth grade (2002-03). An interim report dated October 18, 2002 indicated the student needed support following directions, working independently, exhibiting neatness and organization, completing class assignments and completing homework assignments (Exhibit P). On December 6, 2002, the teacher reported that the student was doing well academically and socially (Exhibit 13). She noted that writing was a challenge for the student and recommended the use of an AlphaSmart and tape recorder. The teacher commented that there had been some improvement in the student's organizational skills, but she still needed help keeping her desk and belongings in order (Exhibit 13). In a January 31, 2003 interim report, the teacher described the student as having a "quick mind and clever insights" (Exhibit Q). Teacher reports from May through June 2003 revealed the student was progressing satisfactorily in all areas (Exhibits 98, 99). The teacher reported that the student had made positive social gains and engaged with a small group of friends at lunch and recess. She also noted the student still struggled to write (Exhibit 99).
By letter dated March 4, 2003, petitioners requested that their daughter be evaluated by the school's occupational therapist (Exhibit 6). The accompanying script, signed by the student's private psychiatrist, indicated that the student should be tested for visual motor difficulties. On April 23, 2003, the district's occupational therapist evaluated the student using subtests from the Bruininks-Oseretsky Test of Motor Proficiency, the Developmental Test of Visual Motor Integration (VMI) and the Motor Free Visual Perception Test–3rd Edition (Exhibit 5). The therapist also observed the student for approximately 10 minutes during her physical education class and discussed the student for 10-15 minutes with her fifth grade teacher (Transcript pp. 2555, 2590).
Based on clinical observation and the results of standardized tests, the occupational therapist reported the student's visual perception and motor coordination skills, as measured by the VMI, fell in the above average range (Exhibit 5). In addition, on the Bruininks-Oseretsky Test of Motor Proficiency the student’s scores fell in the average range on subtests measuring bilateral and upper limb coordination. The student's greatest strength was in the area of visual motor control, while her greatest weakness was revealed in a test of response speed. Based on a brief writing sample, the therapist reported that the student demonstrated fair letter formation and good spacing, and noted that the student's cursive writing was consistent for size, shape, slant and spacing. The therapist concluded that the student did not meet the district's eligibility criteria for occupational therapy services (Exhibit 5; Transcript pp. 2561-67, 2609-11).
The CSE met on May 7, 2003 to develop the student's IEP for the 2003-04 school year (Exhibit 1). According to the IEP narrative, the student demonstrated weaknesses in organization, transitioning and study skills. The student reportedly called out answers in class. Staff indicated the student had benefited from counseling, but continued to require a BIP. Results of an occupational therapy evaluation suggested the student's visual motor skills and coordination were within at least the average range of development (Exhibit 5). The CSE determined that the student did not need occupational therapy services to benefit from her educational program (Exhibit 1). The following services were added to the student's IEP: consultant teacher once daily for 40 minutes and group counseling once daily for 40 minutes. The student's individual counseling was increased from 30 to 40 minutes per week. In addition, the CSE added the following program modifications: preferential seating near the door, student allowed to leave classroom for breaks and homework system designed to encourage a clear understanding of assignments and student completion. The IEP indicated a meeting to review the student's needs would be held in September 2003 and would include the student's guidance counselor, special education teacher, team teachers, social worker, unified arts teachers, fifth grade teacher, behavior specialist, psychologist and parents. The IEP further indicated a middle school social worker had been appointed to assist the student with the transition from elementary to middle school. The social emotional goals contained in the May 7, 2003 IEP included objectives related to improving self-awareness and self-concept, improving social skills and improving socially acceptable behaviors. The IEP also contained one new goal and six corresponding objectives related to the development of study skills. The IEP noted "[p]arents have articulated concerns about other students understanding [the student's] disorder and want training for the entire student body and all teachers" (Exhibit 1).
Following the CSE meeting, the parents presented a letter to the director of special services stating they had been trying, unsuccessfully, for several months to arrange a student and faculty in-service training on Tourette syndrome, OCD and ADHD. According to the parents' letter (Exhibit X), the CSE had dismissed their requests for an advocate from the National Tourette Syndrome Association (TSA) to provide the training. The assistant director of special education offered a more general assembly on sensitivity and tolerance. On June 24, 2003, the parents met with the director of special education services, at which time they requested an impartial hearing, citing the district's refusal to conduct an in-service training on their daughter's condition (Exhibit 2B).
The CSE met on August 22, 2003 to address petitioners' concerns and to review and amend the IEP as necessary (Exhibits 67, 96). On September 23, 2003 the school district held a transition meeting as outlined in the student's August 2003 IEP (Exhibits 81, 90, 91). A representative from TSA participated in the meeting via telephone. The CSE reconvened for a program review on September 30, 2003 (Exhibit 95). The student's teachers reported that she was doing well both academically and socially. The special education teacher had met and reviewed the student's IEP with the student's regular education teachers. In addition, the social worker had met with all staff involved in the student's program and shared with them the packet of information on Tourette syndrome supplied by the parents (Exhibit 95).
The hearing began on August 11, 2003. Testimony was taken a total of 25 days, over the course of six months, finally concluding on February 4, 2004. The resultant record contained a transcript of 6,099 pages, consisting of testimony from 17 different witnesses, and included 228 multi-paged exhibits. The impartial hearing officer rendered her decision on March 22, 2004 in a document that exceeded 200 unnumbered pages.1
The impartial hearing officer decided nine issues, all in favor of respondent (IHO Decision pp. 229-31). The impartial hearing officer first found that there were no procedural defects that resulted in a denial of FAPE to the student (IHO Decision p. 229). The impartial hearing officer found petitioners' allegation that respondent's CSE failed to consider materials presented at the May 7, 2003 CSE meeting was moot (id.). As to the third issue, the impartial hearing officer found that the student did not need the related service of occupational therapy (id.). The impartial hearing officer further found petitioners' contention that their daughter was penalized on the basis of her disability by respondent's grading system to be a non-issue (IHO Decision p. 230). Regarding the fifth issue, the impartial hearing officer found respondent had provided appropriate in-service training to its staff (id.). The impartial hearing officer then found respondent had provided appropriate in-service training to the student's peers (id.). Next, the impartial hearing officer found that the goals and objectives contained in the May 7, 2003, August 22, 2003 and "September 20, 2003" [sic] IEPs were appropriate (IHO Decision pp. 230-31). As to the eighth issue, the impartial hearing officer held the direct consultant teacher service was appropriate for the 2003-04 school year (IHO Decision p. 231). Finally, the impartial hearing officer found the September 30, 2003 IEP to be appropriate stating, "the District CSE has prepared and presented a well developed comprehensive and appropriate IEP. I find for the District." (id.).
In this appeal, petitioners challenge "each and every finding of fact and conclusion of law contained" in the decision of the impartial hearing officer (Am. Pet. ¶ 1). Specifically, petitioners contend that their daughter was denied a FAPE due to the inappropriateness of the 2001-02, 2002-03, and 2003-04 IEPs, the district's failure to provide in-service training on Tourette syndrome for all staff and peers who come in contact with the student, the district's failure to provide consultant teacher services in the least restrictive environment (LRE), and the district's failure to update the student's FBA and BIP. Petitioners also seek reimbursement for an independent educational evaluation (IEE). Finally, petitioners request that the State Review Officer "order implementation of a modified grading system which does not penalize the child for behaviors caused by her disability;" (Am. Pet. p. 20).
I will first address petitioners' claims related to the 2001-02, and 2002-03 school years. By interim decision dated November 14, 2003, the impartial hearing officer found that the parents' claims relative to the 2001-02 and 2002-03 school years were barred by the doctrine of laches (IHO Exhibit 5). Petitioners request that the State Review Officer reverse the impartial hearing officer's determination and consider the appropriateness of the IEPs recommended for those school years. The student was first classified by the CSE at a meeting held February 6, 2002 (Exhibit 18). Respondent sent an invitation to the parents to attend that CSE meeting and a copy of petitioners' due process rights by letter dated January 16, 2002 (Exhibit 28).
At the student's annual review on May 7, 2003, petitioners requested that in-service training for peers and staff be provided at both the elementary school and middle school (Exhibit 1). At the annual review respondent's CSE chairperson stated that the middle school was willing to present a sensitivity and tolerance assembly on disabilities in general (Exhibits 1, X). Also on May 7, 2003, petitioners sent a letter to respondent's director of special services reiterating their request for student and faculty in-service training to be provided at respondent's Katonah Elementary School before the end of the 2002-03 school year and also at respondent's John Jay Middle School during the 2003-04 school year (Exhibit X). Petitioners expressed both their unhappiness with a general assembly on sensitivity and tolerance and their desire to have a representative from TSA present an assembly solely on their daughter's disability (Exhibit X). On June 24, 2003, following a meeting to discuss petitioners' concerns regarding in-service training, petitioners requested an impartial hearing. The sole issue listed on the hearing request was in-service training (Exhibit 2B). Petitioners first objected to the 2001-02, 2002-03, and 2003-04 IEPs via their attorney in a letter dated July 10, 2003 (Exhibit FF).
I agree with the impartial hearing officer that petitioners' claims relative to the 2001-02 school year are time-barred pursuant to analysis under either laches or statute of limitations (seeApplication of a Child with a Disability, Appeal No. 02-119). I do not agree that petitioners' claims relative to the 2002-03 school year were time-barred, however, I agree with the impartial hearing officer's decision not to address the merits of those claims. On virtually the last day of the 2002-03 school year, petitioners requested a school-wide assembly at the elementary school where their daughter had just completed the fifth grade. On July 10, 2003, after the school year concluded, petitioners objected to their daughter's 2002-03 IEP. Petitioners' general objections to the 2002-03 education program and request for an assembly at their daughter's former school are moot because no meaningful relief can be granted at this time which would impact the 2002-03 educational program (Application of a Child with a Disability, Appeal No. 04-007; Application of a Child with a Disability, Appeal No. 03-083; Application of a Child with a Disability, Appeal No. 93-20).
I now turn to the appropriateness of respondent's recommended program for the 2003-04 school year. The purpose of the IDEA is to ensure that children with disabilities are provided a FAPE (20 U.S.C. § 1400[d][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 ). 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 a Child with a Disability, Appeal No. 02-092).
The student's recommended program must also be provided in the LRE (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]). 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).
Petitioners allege their daughter was denied a FAPE because all of the IEPs developed for the 2003-04 school year were inappropriate "as a matter of law;" the goals and objectives were inappropriate and incapable of implementation; the student's consultant teacher services were not provided in the LRE; the school district did not provide in-service training for staff and peers of the student; and the school district failed to update the student's FBA and BIP (Am. Pet. p. 20).
A CSE meeting was held May 7, 2003 to develop the student’s program for the 2003-04 school year. The parents contend that the student's regular education teacher left before the conclusion of the meeting (Am. Pet. ¶ 14). Both the IDEA and New York Education Law require the participation of a regular education teacher at a CSE meeting "... if the child is, or may be, participating in the regular education environment" (20 U.S.C. § 1414[d][B][ii]; 34 C.F.R. § 300.344[a]; Education Law § 4402[b][a]; 8 NYCRR 200.3[a][ii]).
Respondent's CSE chairperson testified that the student's fifth grade regular education teacher attended the annual review and that she fully participated in the meeting. The CSE chairperson testified that the fifth grade teacher "reviewed [the student's] progress to date and listed her strengths and weaknesses and talked about how she was progressing in the fifth grade program" (Transcript p. 332). The student's regular education teacher also targeted some areas of need being social and study skills, work habits, and indicated that written productivity was becoming more of an issue which she had highlighted for the CSE (Transcript pp. 332-33).
The student's mother testified that the fifth grade teacher left the meeting five – ten minutes early (Transcript pp. 3624-25); she later testified that the teacher left the meeting half-way to three-quarters of the way through (Transcript p. 4476). The record reflects that the student's fifth grade teacher did fully participate at the annual review and I find that the May 7, 2003 CSE was validly composed.
The district attempted to schedule a CSE meeting for August 7, 2003 or August 8, 2003, for the purpose of again reviewing the student's proposed 2003-04 program, as well as to consider information on Tourette syndrome submitted by the parents. However, the parents were not available on either date (Exhibits 44, 45, 104, FFFF). On August 22, 2003, the CSE reconvened with the attorney for the school district present (Exhibits 67, 96). The parents objected to the attorney's presence, but the meeting continued (Exhibits 67, 96). The transcript of the CSE meeting revealed that the CSE reviewed the proposed program (Exhibit 96 pp. 5-9, 12, 14, 16-17, 21, 24-25), discussed the parents' request for staff and peer training (Exhibit 96 pp. 18-20), provided an overview of proposed goals and objectives (Exhibit 96 pp. 23, 36), accepted information from the parents to distribute to staff members (Exhibit 96 pp. 25-29), and discussed scheduling transition and review meetings (Exhibit 96 pp. 32-34, 38-39). Several committee members opined that an in-service training for the entire student body would not be in the student's best interest and peer training should take place on an as needed basis (Exhibit 96 pp. 18-20). The student's IEP was revised (Exhibit 67). Two new study goals related to improving attending and transitioning skills were added, as were two new program modifications related to attending and peer interaction. A more detailed description of the student's proposed program was included in the IEP, as was a more detailed description of her behavior and the need for teacher intervention to facilitate peer relationships. The student's medications were listed on the IEP. The IEP indicated a meeting would be held in September 2003 to review the student's needs and an FBA and BIP previously completed would be reviewed within the first four weeks of school. The IEP noted that a program review would be scheduled for November 2003 (Exhibit 67).
At this meeting, the student's sixth grade regular education and special education teachers were not present (Exhibits 67, 96). The regular education teacher and special education teacher who participated in the meeting both taught seventh grade. In its interpretation of the regulations, the U.S. Department of Education has indicated that "the regular education teacher who serves as a member of a child's IEP team should be a teacher who is, or may be, responsible for implementing a portion of the IEP… [s]imilarly, the special education teacher or provider of the child who is a member of the child's IEP team should be the person who is, or will be, responsible for implementing the IEP" (see 34 C.F.R. Part 300, Appendix A, Section IV, Question 26; Application of a Child with a Disability, Appeal No. 02-080). Although a board of education cannot always be expected to know who the student's regular and special education teachers will be prior to the CSE meeting, it should nevertheless have sufficient information about the student to designate a regular education teacher and special education teacher who are not only appropriately certified to teach the student, but are also teaching in one of the programs which might be appropriate for the student (Application of a Child with a Disability, Appeal No. 02-080; Application of a Child with a Disability, Appeal No. 01-105; Application of a Child with a Disability, Appeal No. 01-083). Therefore, I find that the August 22, 2003 CSE was invalidly composed.
The district attempted to schedule another CSE meeting on September 2, 2003 to allow the parents to meet the student's sixth grade special education and regular education teachers prior to the beginning of the school year, but the parents were unable to attend due to vacation (Exhibits 77, 78, 106, HHH). The district again attempted to schedule a CSE meeting for September 12, 2003, but the parents were also unable to attend that meeting because it was scheduled on a hearing date and they were meeting with their attorney (Exhibits 87, 88, WW). On September 23, 2003 the school district held a transition meeting as outlined in the student's August 2003 IEP (Exhibits 81, 90, 91).
The CSE reconvened for a program review on September 30, 2003 (Exhibit 95). The student's teachers reported that she was doing well both academically and socially. The special education teacher had met and reviewed the student's IEP with the student's regular education teachers. In addition, the social worker had met with all staff involved in the student's program and shared with them the packet of information on Tourette syndrome supplied by the parents (Exhibit 95). There were no CSE composition issues raised by the parents relative to this meeting and the record reveals that the September 30, 2003 CSE was validly composed.
The record reveals that between May and September 2003 the CSE met on three occasions; first to develop an IEP for the student for the 2003-04 school year and then twice more to address concerns voiced by the parents and to amend the IEP as appropriate (Exhibits 1, 67, 95, 96). During this same time period the district continued to hold parent/teacher team meetings and the parents received frequent feedback on their daughter's school performance (Exhibits 35C, 63, 63B, 81, 83). School districts are required to have an IEP in place prior to the start of the school year (42 U.S.C. § 1414[d][A]; 34 C.F.R. § 300.342[a]). The district did not have a valid IEP in place until September 30, 2003. Given respondent's efforts to schedule a CSE meeting prior to the start of the school year, the fact that petitioners attended and participated in team meetings throughout this time period, and that the student received services as set forth on the August 22, 2003 IEP, I find that any lateness in developing the IEP did not amount to a denial of FAPE (Evans, 930 F. Supp. at 93-94; W.A v. Pascarella, 153 F. Supp.2d at 153; Briere, 948 F. Supp. at 1255; Application of a Child with a Disability, Appeal No. 02-092).
Petitioners also contend that the student's consultant teacher services were not being provided in the LRE. Petitioners argue that the September 2003 IEP is procedurally defective in that consultant teacher services were not accurately described. Petitioners contend the IEP is substantively flawed in that the goals and objectives cannot be implemented and were erroneous given the method of assessment.
The student was recommended for consultant teacher services once daily for 40 minutes to support the student in her general education classes including language arts, math, science and social studies at the May 7, 2003 CSE meeting (Exhibit 1). The IEP did not indicate whether the consultant services would be direct or indirect, or specify the general education classes where the student would receive the services. In subsequent IEPs (Exhibits 67, 95), the CSE designated the consultant teacher services as direct and noted the special education teacher would meet with the student once daily in a small group setting "to ensure that she understands course work expectations and has required assignments recorded in her assignment pad" (Exhibits 67, 95; Transcript p. 5071). The IEP also indicated that the special education teacher would consult with the student's team to modify coursework expectations as necessary. None of the IEPs specify the regular education class(es) in which the student will receive consultant teacher services, rather the IEPs state that the student will work with the special education teacher in a small group setting in a "special location.”
"Consultant teacher services means direct and/or indirect services ... provided to a student with a disability who attends regular education classes and/or to such student's regular education teachers" (8 NYCRR 200.1[m]). "Direct consultant teacher services means specially designed individualized or group instruction provided by a certified special education teacher ... to a student with a disability to aid such student to benefit from the student's regular education classes" (8 NYCRR 200.0[m]). "Indirect consultant teacher services means consultation provided by a certified special education teacher … to regular education teachers to assist them in adjusting the learning environment and/or modifying their instructional methods to meet the individual needs of a student with a disability who attends their classes" (8 NYCRR 200.1[m]).
A review of the record reveals that the special education service that respondent has listed on the student's IEP as 'consultant teacher services' is more accurately described as 'resource room' services (Exhibits 1, 67, 95, 96; Transcript p. 5046). Respondent's director and assistant director of special services both testified that the student did not require significant work in skills development, that her academic skills were above average in most areas reviewed by the CSE, and that the recommended consultant teacher services were designed to assist the student with organization and study skills (Transcript pp. 2724-29, 3384-88). The purpose of the special education services was reportedly to address the student's deficits in organization and study skills. The description of the student's needs, coupled with the design of service delivery, more closely aligns with a description of resource room services than consultant teacher (see 8 NYCRR 200.1[rr]; 200.6[f]). The record further reveals that in addition to providing daily direct services to the student, the special education teacher would participate in daily team meetings with the student's teachers to modify course work as needed (Exhibits 67, 95; Transcript pp. 5046, 5050, 5059, 5062). Testimony also indicated that the services were provided to the student in a group of less than five students (Transcript p. 3206; see 8 NYCRR 200.6[f]). Petitioners assert that the student's special education services should be provided on a push-in basis (consultant teacher services) in the regular education classroom, rather than on a pull-out basis in a small group setting in a special location (resource room).
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][A]; 34 C.F.R. § 300.550[a]; 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. 00-093; 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. 00-093; Application of a Child with a Disability, Appeal No. 94-21).
I find that the district has made reasonable efforts to accommodate the student in the general education environment. The supplementary aids and services this student needs in order to receive benefit from her program cannot be provided in the general education setting. The record supports respondent's contention that small group instruction in a separate location is appropriate because of the student’s distractibility. Providing this student with services in a separate location allows her to receive educational benefits unavailable in a regular class. The student often has many questions surrounding homework assignments. During this time she would be able to speak freely without trying to inhibit her calling-out tendencies or suppressing tics, which can be disruptive to other students (Exhibit 7; Transcript pp. 699-70, 1416). The recommended small group instruction is for only one 40-minute period daily and the services the student receives and the time spent there allow her to be successful for the remainder of the day in the general education setting (see 20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.550[a]; Oberti, 995 F.2d at 1213; Briggs, 882 F.2d at 691; Daniel R.R., 874 F.2d at 1044; Warton, 217 F. Supp.2d at 273 n.1; A.S., 183 F. Supp.2d at 538 n.3; Mavis, 839 F. Supp. at 982 n.25; Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 94-21). I find the district's rationale is sound in light of this student's needs and classroom performance. Although the recommended services might more accurately be described as resource room rather than consultant teacher services, I find that the description of the services as they were delivered was appropriate for the student and the inaccurate listing did not result in a loss of educational opportunity for the student (Evans, 930 F. Supp. at 93-94; W.A v. Pascarella, 153 F. Supp.2d at 153; Briere, 948 F. Supp. at 1255; Application of a Child with a Disability, Appeal No. 02-092), and were provided in the LRE (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.550[a]; Oberti, 995 F.2d at 1213; Briggs, 882 F.2d at 691; Daniel R.R., 874 F.2d at 1044; Warton, 217 F. Supp.2d at 273 n.1; A.S., 183 F. Supp.2d at 538 n.3; Mavis, 839 F. Supp. at 982 n.25; Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 94-21).
Petitioners also contend that the IEP goals and objectives cannot be implemented and are erroneous given the method of assessment. The following methods of assessment are incorporated in the objectives listed in the September 30, 2003 IEP: utilizing behavior charting, utilizing structured interviews, and utilizing observation checklists (Exhibit 95). In most instances the method of assessment is clearly appropriate and easily implemented. The student possesses superior intelligence and performs well academically. The student's primary needs, as reflected on her IEP, include difficulties with organization, socialization, attending and engaging in obsessive-compulsive behaviors. To address the student's organizational and attending deficits, the CSE recommended daily consultant teacher services to assist the student with understanding and organizing her assignments. In addition the student was to be provided outlines or models of assignments, tasks would be broken down, she would receive cues to sustain attention and she would be offered an alternative to writing for demonstrating knowledge. The student's IEP contained goals and objectives related to organization, attending and transitioning. Testing accommodations included extended time (2.0), special location and proctor cueing. The IEP also contained services and modifications to address the student's socialization weaknesses. She was recommended for both individual and group counseling and her IEP contained goals and objectives related to improving self-awareness and social skills, as well as socially acceptable behavior. The student's IEP indicates that staff should be alert to the need to intervene to facilitate peer relations and that teachers will facilitate assisting peers to better understand the nature of the student's disability and peer sensitivity. The student's IEP also calls for an FBA and a BIP to address any behaviors that interfere with the student's ability to learn. The IEP includes preferential seating of the student (near the door) and states that the student should be allowed to leave the room for breaks. Present levels of performance and program modifications reflect input and suggestions from the student's parents. The IEP supports the district's claim that the recommended program was designed to confer educational benefit in the LRE. In addition, records generated by the student's private psychiatrist during the 2003-04 school year indicate that the student enjoyed school and was performing well in the recommended program (Exhibit 86 [entries dated 9/9/03, 9/23/03, 10/28/03, 12/11/03]). Based upon the foregoing, I agree with the impartial hearing officer that the student's IEP goals are capable of implementation, are not erroneous and are reasonably calculated to confer educational benefit (Rowley, 458 U.S. at 206-07).
Petitioners further contend that the impartial hearing officer's finding that the FBA was appropriate and "kept ... current" was erroneous (Am. Pet. ¶ 58). Petitioners maintain that respondent only conducted one FBA before the student was classified (id.). Both federal and state law require an FBA as part of a student's initial evaluation or reevaluation "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" (20 U.S.C. § 1414[d][B][i]; Education Law § 4402[a]; see also, 34 C.F.R. § 300.346[a][i]; 8 NYCRR 200.4[b][v]). The Regulations of the Commissioner of Education define an FBA as:
... the process of determining why the student engages in behaviors that impede learning and how the student's behavior relates to the environment. The [FBA] 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 effective 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])
In September 2001, when the student was in fourth grade and before she was referred to the CSE, the school psychologist worked closely with the fourth grade teacher to develop a behavior management program to address classroom behaviors that interfered with the student's ability to benefit from instruction (Transcript pp. 785-87). The psychologist conducted an FBA and developed a BIP in October 2001 (Exhibit 32; Transcript p. 787), and met with the fourth grade teacher several times each week throughout the 2001-02 school year to monitor progress and make revisions to the plan as needed (Transcript p. 789). The psychologist testified that behavioral concerns were discussed by the CSE when the student was classified in February 2002, and that information from her FBA regarding the student's behavior management needs were incorporated into her IEP (Transcript pp. 1176-77). The psychologist reported that, at the student's April 2002 team meeting in the spring of her fourth grade year, the classroom teacher's report regarding the effect of behavior interventions was positive and that target behaviors had diminished (Transcript p. 817; see also, Exhibit 22).
When the student was in fifth grade during the 2002-03 school year, a behavioral specialist worked with the school psychologist and classroom teacher to modify the student's BIP as needed (Transcript pp. 789, 1958). The student's targeted behavior during fifth grade was calling out answers without raising her hand, which drew negative attention from her classmates (Transcript pp. 699-700, 1416). The fifth grade teacher testified that she worked with the behavior specialist throughout the 2002-03 school year to address this behavior, and that modifications were made to the student's BIP on an ongoing basis (Transcript p. 1958). The behavior specialist testified in detail regarding BIP modifications made in November 2002 (Transcript pp. 691-92), January 2003 (Transcript pp. 698-700), February 2003 (Transcript p. 702) and April 2003 (Transcript p. 707).
The school psychologist testified that a student's FBA is always reviewed by the CSE (Transcript p. 1296). When the CSE convened for the student's annual review on May 7, 2003, it recommended that a BIP be developed for the 2003-04 school year, when the student would be transitioning to middle school. Preparations for this transition occurred in meetings which included the school psychologist, the fifth grade teacher, the behavior specialist, and the sixth grade team that would be providing services to the student in 2003-04 (Transcript p. 704). The school psychologist who had worked with the student in fifth and sixth grades provided the school psychologist at the middle school with the student's clinical file as part of the transition (Transcript p. 790). The behavior specialist testified that, on September 11, 2003, she met with the school psychologist at the middle school to discuss the student's program (Transcript p. 721).
The record shows that the staff working with the student in fourth and fifth grades during the 2001-02 and 2002-03 school years worked closely in a coordinated effort to develop, monitor and revise the student's BIP (Exhibits 35B, 35C). The CSE recommended development of a new BIP for 2003-04, when the student was transitioning to a new environment. Actions taken by staff during the spring of 2003 to prepare for this transition, and actions taken in September 2003 to follow up on transition suggest that the district had a well-organized plan to develop an appropriate BIP for the 2003-04 school year. I, therefore, find petitioners' contentions relative to the FBA and BIP are without merit.
The subject of the hearing request was respondent's refusal to provide an assembly on Tourette syndrome with a presenter from TSA (Exhibit 2B). Since the initial hearing request, the parents have asserted that they did not want an assembly, they want peer training for students who come in contact with their daughter and training for all of respondent's staff (Exhibit DDD). Since petitioners have abandoned their claim that a school-wide assembly on Tourette syndrome was required for the student to receive a FAPE, I do not review it (20 U.S.C. § 1415[i][A]; 34 C.F.R.§ 300.510[a]; Education Law § 4404; 8 NYCRR 200.5[i][ii]). Petitioners also allege that their daughter was denied a FAPE because the district failed to provide in-service training to staff and peers on Tourette syndrome. I find petitioners' contentions are not supported by the record.
In order to receive a FAPE, school districts must create an IEP tailored to meet the unique needs of the disabled child (Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 346 [5th Cir. 2000] quoting Rowley, 458 U.S. at 181; see also, Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 [2d Cir. 2003]). An appropriate education is provided when personalized educational services that are likely to produce progress rather than regression are provided to the student (Houston Indep. Sch. Dist., 200 F.3d at 346 quoting Rowley, 458 U.S. at 197; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 383 [2d Cir. 2003]; Sherman v. Mamaroneck Union Free Sch. Dist., 340 F.3d 87, 93 [2d Cir. 2003]; M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 2000]; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121 [2d Cir. 1997]; see also, E.S. v. Indep. Sch. Dist., 135 F.3d 566, 569 [8th Cir. 1998]; Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 247-48 [5th Cir. 1997]; Wall v. Mattituck-Cutchogue Sch. Dist., 945 F.Supp. 501, 511-12 [E.D.N.Y. 1996]). Accordingly, the IDEA "generates no additional requirement that the services so provided be sufficient to maximize each child's potential" (Houston Indep. Sch. Dist., 200 F.3d at 346 quoting Rowley, 458 U.S. at 198).
On February 6, 2002, at a team meeting, the parents and school psychologist considered the possibility of discussing the student's disability with her classmates (Exhibits 35B [handwritten meeting notes dated 2/26/02], 56). However, following discussions with the student, the psychologist and behavior consultant decided a class discussion would not be appropriate and it was not held (Exhibit 35B [handwritten meeting notes dated 3/22/02, 5/2/02]).
During the 2002-03 school year, the student's teacher and parents were in frequent contact via e-mail (Exhibits 62, 62B, 97, U, ZZ). In addition to the student's report cards and interim progress reports, the teacher sent weekly behavior rubrics/narratives describing the student's performance at school to the parents (Exhibits 63, 63B, 63C, T); petitioners also engaged in monthly team meetings with school staff (Exhibits 35B, 35C).
At the request of the parents, the student's fifth grade teacher shared information regarding the student's disability with her class. At the beginning of the school year, the teacher discussed different conditions, such as ADHD, visual impairments and peanut allergies (Exhibits 35C [handwritten notes dated 9/25/02], 60). In October 2002, the teacher talked to her class more specifically about this student, including her tics and her tendency to call out. The children were urged to be understanding, patient and kind (Exhibit 62 [e-mail entry dated 10/28/02]). Throughout the school year additional class discussions took place while the student was out of the classroom (Exhibits 62B [e-mail dated 1/10/03], 63 [rubric dated 3/28/03], Y). School staff solicited the mother's input regarding peer training (Exhibits 62B [e-mail dated 12/11/02], 62 [e-mail dated 12/13/02]) and the student's teacher explained attempts that were made within the regular course of the day to help classmates develop tolerance (Exhibits Z [rubrics dated 6/6/03, 6/13/03], 62 [entry dated 10/26/02]).
In a January 2003 interim report (Exhibit Q), the teacher indicated that the student needed support exhibiting appropriate behavior and noted that she would continue to address the student's calling out behavior. The teacher indicated that the student had some friends and that most of the students in her class were either friendly or neutral toward the child. The children reportedly understood that some of the student's behaviors were related to her disability and they ignored them. In her report dated March 7, 2003, the student's teacher stated that she had been targeting the student's behaviors that were disruptive to the class, including calling out and continuously commenting on class events (Exhibit 7).
At a March 2003 parent/team meeting, the parents expressed a desire for the student's sixth grade teachers to be provided with information on Tourette syndrome. The behavior specialist testified that the student's mother requested an in-service training for all teachers and for students in the upcoming 2003-04 school year. The parents were reportedly advised to pursue the student in-service training through the special education parent teacher association (SEPTA) (Transcript pp. 704-05; Exhibit 35C [handwritten notes dated 3/12/03]). As the school year progressed, the parents continued to request training for the student's teachers and peers (Exhibits 1, 35C [typewritten entry dated 5/8/03], W, X, ZZ). Comments on the student's behavior rubric indicated the teacher had another discussion with her students on March 28, 2003, while petitioners' daughter was out of the classroom (Exhibit 63 [rubric dated 3/28/03]).
On May 9, 2003 the teacher sent the parents an e-mail stating that she hoped the parents were in agreement with the proposed "systematic approach to teaching tolerance for a wide range of differences, while making sure that all the teachers and adults who come into contact with [the student] are thoroughly briefed on her condition, so they can make sure they can work with the kids in her classes so they will understand where [the student] is coming from" (Exhibit Y). The teacher also indicated that she had another class meeting while the student was at music lessons. She reported that she talked with her students about how important it was to be patient and understanding, and discussed ways to help [the student] that were fair and kind and not mean. In the behavior rubrics the teacher also explained attempts made within the regular course of the day to help classmates develop tolerance (Exhibits Z [rubrics dated 6/6/03, 6/13/03], 62 [entry dated 10/26/02]). On June 24, 2003 the parents submitted a hearing request citing the district's refusal to perform an in-service training related to their daughter's condition to the staff and student body.
By letter dated July 14, 2003, the student's private psychiatrist informed the CSE that it was important for students and staff working with the student to be familiar and comfortable with her condition (Exhibit GG). In a July 15, 2003 settlement offer proposed by the school district, the district indicated it would "provide for in-service training at team and/or faculty meeting (s) to District staff who work directly with the student to provide such staff with additional information on Tourette Syndrome and Obsessive Compulsive Disorders and methods of improving sensitivity and awareness among the students with whom [the student] interacts. The district would welcome the participation of the parents in selecting materials to be shared at such meetings" (Exhibits 102, UUU, VVV). In response, the parents' attorney indicated that they would need to know the identity of the person conducting the in-service training, whether the district was still willing to have a representative from TSA provide the training and clarification as to how the district would provide the methods of improving sensitivity and awareness among the student's peers (Exhibit WWW).
Treatment notes from the student's private counselor indicated the student's mother was "concerned about TS but doesn't think meds for this are necessary at this point—she would rather focus on education for pt's teachers and peers about this and focus on med to control ADHD [symptoms]" (Exhibit 86B [entry dated 8/5/03]).
At the CSE meeting August 22, 2003 (Exhibits 67, 96), the director of special services stated that the district was committed to providing information on Tourette syndrome to the student's team teachers, as well as having a representative selected by the parents present to the team. He opined that it might not be in the student's best interest to be identified as a student who needs "supplemental work" (Exhibit 96 p. 18). The CSE chairperson indicated the district was also willing to schedule a meeting with the student's team, parents and any representative chosen by the parents to review the student's needs (Exhibit 96 p.19). The psychologist at the CSE suggested that in middle school students want to blend into the background and a school-wide peer training session might hurt the student more than it would help her. She suggested the parents might experience more success by training the team and staff and letting them train the students as necessary (Exhibit 96 p. 20). The district attempted to schedule a September 2, 2003 CSE meeting in order for the parents to meet with the student's teachers prior to the beginning of the school year. The parents were unavailable to meet on that day (Exhibits 77, 78, 106, HHH).
Following the September 23, 2003 transition meeting the student’s mother sent the middle school social worker a letter in which she expressed concern because the social worker had met with the student's teachers and had plans to speak with the student's peers while the student was present (Exhibit 81). The mother indicated she was unaware of these events and no one had asked for consent to speak with her daughter regarding peer training. The mother requested that the social worker "place each of the team's recommendations in writing, including your desire to speak with the peers with whom [the student] is placed, and state what, if any discussion is going to be provided or which has already been provided by you or anyone else, to the staff with whom [the student] interacts." (id.).
Minutes from the September 30, 2003 CSE meeting indicated that the social worker had met with all staff involved in the student's program and reviewed with them a packet of information on Tourette syndrome provided by the parents (Exhibit 95). The district also notified the parents that each of the student's teachers had reviewed the packet of information on Tourette syndrome and was knowledgeable about the student's needs and conditions (Exhibit 84).
In October 2003, the student's cognitive behavioral therapist sent the school district a letter supporting the parents' in-service training request (Exhibit FFF). Treatment notes from the student's private therapist revealed that someone had spoken to the student's class about Tourette syndrome and that the student found this helpful in that subsequently she perceived other students as being more understanding and she felt less ridiculed (Exhibit 86B [entry dated 10/28/03]).
Staff at both the elementary school and the middle school who were qualified to work effectively with the student and who had sufficient understanding of the student's needs systematically conveyed necessary information about the student to staff at the middle school who would come into contact with her. The record reflects a coordinated effort by school personnel to ensure communication among staff as the student moved from fourth to fifth grade and from fifth grade to the middle school (Transcript pp. 337, 350, 663-64, 704, 725, 817-18, 899-90, 918). Communication included involvement of outside therapists and incorporation of informational materials provided by the parents and the parents' consultant into presentations at frequent team meetings, which were the primary vehicle for sharing information about and planning for the student (Transcript pp. 808, 813, 823, 827-28).
The school psychologist at the elementary school testified regarding his background and expertise in Tourette syndrome (Transcript pp. 780-82, 1274-75). He was familiar with the student, and his testimony demonstrated his understanding of the student's needs as well as his ability to address those aspects of her disability which directly affected her academic performance and her social interactions. The school psychologist worked closely with the fourth and fifth grade general education teachers and the behavior specialist in fifth grade to develop strategies to address the student's needs (Transcript pp. 570, 786, 813), and provided individual counseling services to address the student's difficulties with social skills (Exhibits 35B, 35C, 51, 56, 60; Transcript pp. 786, 823). He participated in regular meetings with staff who worked with the student in 2001-02 and 2002-03 (Exhibits 35B, 35C, 51, 56, 60; Transcript pp. 789, 823) and served as case coordinator and liaison with private practitioners who provided services to the student (Transcript p. 823). In his capacity as case coordinator, the school psychologist attended transition meetings to prepare for the student's entry to middle school and participated in planning to ensure that middle school staff who came into contact with the student would be aware of her needs (Transcript pp. 812, 845-48).
The student's fifth grade teacher's formal training included a doctoral degree (Transcript p. 1894), but she had no previous experience with children with Tourette syndrome before the student came into her classroom during the 2002-03 school year. The record indicates that she worked closely with the school psychologist and with the behavior consultant who developed the student's behavior plan (Exhibits 35C, 60). In December 2002, the fifth grade teacher attended a two-day conference on Tourette syndrome that featured the parents' private consultant as a presenter (Transcript p. 1905). She also purchased several books on the subject (Transcript p. 827).
The assistant director of special services described initial efforts to prepare for the student's transition to middle school, noting that there were staff at the middle school with previous experience helping students with Tourette syndrome adjust to middle school, and that in-service training for staff was an ongoing process (Transcript pp. 593-95). The director of special services testified regarding his own expertise with students with Tourette syndrome (Transcript pp. 963-64). He testified regarding his "commitment" to share information about the syndrome that the parents had provided "with any teacher who delivered an educational program" to the student, as well as to ensure that this information was shared with any individuals who were likely to have contact with the student, such as bus drivers, monitors, cafeteria workers, library staff and custodians (Transcript pp. 941-42, 1049-50).
The social worker assigned to serve as the student's liaison and case coordinator at the middle school in 2003-04 testified regarding her background with students with Tourette syndrome, including her recent direct experience with two students whose symptoms the social worker described as "very severe." (Transcript pp. 1615-16, 1682-86). The assistant director of special services testified that the social worker had experience providing training to teams of teachers (Transcript pp. 617-18). In testimony, the social worker opined that her background and experience qualified her to provide training to staff at the middle school (Transcript p. 1739). She was first assigned to prepare for the student's transition to middle school in February 2003 (Exhibit 1), and she subsequently met with the parents, accepted a packet of materials they provided, and developed a plan for sharing that information (Transcript p. 918).
The record reflects an ongoing commitment by the district to ensure peer sensitivity through meaningful educational experiences. In testimony, the assistant director of special education summarized district policies and actions designed to facilitate peer sensitivity to disabilities, including the district code of conduct and a Differences Day for students in the first and second grades (Transcript pp. 343-44, 414).
The behavior specialist who worked with the student at the elementary school testified that she was asked about peer training when the student was in fourth grade. She had indicated an interest in being involved in this training, but testified that, in fourth grade, the student's behaviors were not having a significant impact upon her classmates, which contributed to a staff decision to defer peer training (Transcript p. 651; Exhibits 35B [entries dated 2/26/02, 3/22/02, 5/2/02], 56).
During the 2002-03 school year, the school psychologist worked with the student's fifth grade teacher to prepare informational sessions for the other students in the class (Transcript p. 580). District staff solicited ongoing parent input regarding these presentations (Exhibits 35B [entry dated 6/21/02], 62 [entries dated 10/28/02, 12/13/02], 62B [entries dated 11/16/02,12/8/02, 12/11/02,1/10/03], 63 [entry dated 3/28/03], Y). Based upon this input, the fifth grade teacher conducted discussions with her class throughout the 2002-03 school year (Exhibits 62 [entry dated 10/28/02], 62B [entry dated 1/10/03], 63 [entry dated 3/28/03], Y; Transcript p. 362). In order to avoid singling out the student because of her disability, the teacher emphasized the concept of differences, and included discussion of a student who had a visual impairment and one who had severe allergies, and also discussed ADHD (Exhibits 35C [entry dated 9/25/02], 60, 62 [entry dated 10/28/02]; Transcript pp. 671-72, 824). The student had been aware of these discussions, expressed satisfaction with the process, and asked to be present (Transcript p. 826). Near the end of the school year, the teacher conducted discussions when the student was present (Transcript p. 835). The fifth grade teacher testified that the student was able to talk about her disability with confidence and that this helped to dispel any discomfort that classmates may have had (Transcript p. 1915). The social worker who provided counseling services to the student in sixth grade testified that when the student's mother had inquired about peer training, she had not expressed disagreement with training that had been conducted during the previous school year (Transcript p. 1623).
In addition to the scheduled discussions with her class, the fifth grade teacher provided ongoing direction to her students regarding the need for sensitivity to differences. When incidents of teasing occurred, the teacher spoke privately with students who engaged in such behavior (Transcript p. 1217). The school psychologist testified that interventions were employed by staff when negative peer response was observed and noted that these interventions were comparable to those implemented in similar circumstances for non-disabled students (Exhibits Z [rubrics dated 6/6/03 and 6/13/03], 62 [e-mail dated 10/26/02]; Transcript pp. 833-34).
The fifth grade teacher opined that peer sensitivity interventions in her classroom were successful and that some of the students were beginning to understand the student's disability. She observed an improvement in how other children interacted with the student (Transcript pp. 581-82). She responded to the parents' concerns about peer interaction by indicating that, in her opinion, the parents may have been "overly sensitive" to occasions in which their daughter experienced difficulty with social interactions (Transcript p. 613). She testified that she had not identified any incidents of teasing during the 2002-03 school year which she considered sufficiently severe to warrant discipline (Transcript p. 599). Asked if there were students in the class who continued to not understand the student's behaviors and continued to mention them, the fifth grade teacher testified: "Possibly, but they are children. They are 10 and 11-year olds" (Transcript pp. 2023-24).
The social worker who was assigned as liaison for the student when she transitioned to middle school in 2003-04 testified that the parents had requested peer training when she met with them in April 2003 (Transcript pp. 1652-53, 1718). The parents had not expressed dissatisfaction with training conducted the previous year (Transcript p. 1623), and the social worker advised them of her plan to comply with their request when she spoke with them at the September 23, 2003 CSE meeting (Exhibits 81, 83, 91; Transcript p. 1718). The social worker began peer training by leading a discussion of the student's symptoms in the student's counseling group (Transcript p. 1627-28). She decided to schedule a classroom discussion because teachers had reported that other children were beginning to look questioningly at the student's tics (Transcript p. 1726). She used materials provided by the parents and reviewed by the CSE at the September 2003 meeting (Transcript pp. 1635, 1662). The student was present for the discussion and was an active participant, and the social worker reported that the session was successful. However, after she completed the session, she was contacted by the student's mother, who expressed dismay that the training had been conducted, and directed the social worker to discontinue peer training (Transcript pp. 1659-65).
The assistant director of special education testified that she had conveyed to the parents the district's willingness to provide sixth grade staff with training in the student's specific disability and to allow teachers to work with peers on an as-needed basis (Exhibit Y; Transcript p. 3397).
The record is replete with evidence that the student was benefiting from her program (Exhibits 1, 13, 35C, 63, 63B, 63C, 81, 83, 86, 95, 98, 99, T). In addition, there is ample documentation and testimony detailing peer training activities by qualified individuals (Exhibits 7, 35C [handwritten notes dated 9/25/02, 3/12/03; typewritten entries dated 12/4/02, 5/6/03], 60, 62 [emails dated 10/26/02, 10/28/02, 12/13/02], 62B [emails dated 11/16/02, 12/8/02, 12/11/02, 1/10/03], 63 [rubric dated 3/28/03], 84, 86B [entry dated 10/28/03], 95, 96 [pp. 18, 20], Y, Z [rubrics dated 6/6/03, 6/13/03], AAA; Transcript pp. 343, 362, 368-69, 414, 570-73, 615, 651, 671, 696-97, 824, 826, 833-35, 1214-17, 1623, 1628, 1659-60, 1726-27, 1911-17, 3397), and staff training by qualified individuals provided by the district (Transcript pp. 338, 350, 593-94, 617-18, 663-64, 704, 725-26, 813, 823, 827-28, 899-900, 918, 941-42, 1049, 1615-16, 1682-86, 1739, 1904-06, 2708-09). I find that the district has provided both peer training to students who come in contact with petitioners' daughter and staff training. Based upon the foregoing, I find petitioners' contentions with respect to the recommended program for the 2003-04 school year are without merit.
Next I will address petitioners' request for reimbursement of an IEE. At the hearing, the parties agreed that petitioners' independent occupational therapy evaluation would be discussed at a subsequent CSE meeting, but the impartial hearing officer did in fact create a record on this issue, address it fully in her decision and ultimately found respondent's evaluation to be appropriate (IHO Decision pp. 170-77, 229). The impartial hearing officer then denied petitioners' request for reimbursement. Petitioners now appeal the denial of reimbursement for their IEE and seek an order from the State Review Officer requiring respondent to reimburse them.
By letter dated March 4, 2003, petitioners requested that their daughter be evaluated by respondent's occupational therapist (Exhibit 6). The student's private psychiatrist recommended that the student should be tested for visual motor difficulties. Based on the clinical observation and the results of standardized tests, respondent's therapist reported that the student's visual perception and motor coordination skills, as measured by the VMI, fell in the above average range (Exhibit 5). Respondent's therapist concluded that the student did not meet the district's eligibility criteria for occupational therapy services (Exhibit 5; Transcript p. 2564). Subsequent to the therapist's findings, respondent's CSE did not recommend OT services for petitioners' daughter at the May 7, 2003 meeting (Exhibit 1). The parents did not appear to dispute this recommendation, as their initial request for a hearing did not mention the absence of OT services, nor did the parent notice, pursuant to IDEA, dated July 10, 2003, include the lack of OT services in the list of parental concerns (Exhibit FF; see 20 U.S.C. § 1415[b][B]; 34 C.F.R. § 300.507[c]).
Following the August 22, 2003 CSE meeting the parents sought a private occupational therapy evaluation. The evaluation was conducted in September 2003 and several of the tests administered by the school district's evaluator were employed by the private evaluator (Exhibit GGG). As with district testing, the student demonstrated relative strengths in visual motor control and relative weaknesses in response speed as measured by the Bruininks-Oseretsky Test of Motor Proficiency.
The private evaluator also noted gross motor weaknesses and deficits in sensory integration (Exhibit GGG). The evaluator opined that the student required controlled and planned sensory and motor activity. She suggested that weaknesses in tactile and kinesthetic processing contributed to the student's poor motor skills and social difficulties. In addition to therapy in a clinical setting, the evaluator stated that the student would benefit from school-based OT to address accommodations and modifications in school.
Respondent became aware of the parents' private evaluation and their disagreement with the CSE's decision not to recommend OT on October 15, 2003, when petitioners revealed they would be seeking reimbursement for the private OT evaluation (Transcript pp. 1379-82). The parties agreed that the issue would be remanded to the CSE for consideration (Transcript pp. 1387-88). In a November 13, 2003 letter to the impartial hearing officer, the parents' attorney indicated that the parents disagreed with the CSE's recommendation not to provide therapy services for their daughter (Exhibit DDD).
Federal and state regulations provide that a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district. Nevertheless, the right to an independent evaluation is subject to the right of a school district to initiate a hearing to demonstrate the appropriateness of its evaluation. If the impartial hearing officer finds that a school district's evaluation is appropriate, a parent may not obtain an IEE at public expense (34 C.F.R. § 300.502; 8 NYCRR 200.5 [g]).
In testimony, respondent's occupational therapist defined OT in a school setting (Transcript pp. 2516-17) and reviewed the district's criteria for eligibility for OT services (Transcript pp. 2563-64). She reviewed the district's requirement for evaluations and indicated that the requirements were very comprehensive (Transcript pp. 2520, 2580). The occupational therapist testified that results of her testing did not indicate any deficits related to the educational setting and did not indicate a need for follow-up based on test scores (Transcript pp. 2547, 2567).
In testimony, petitioners' independent evaluator recommended OT one to two times per week in a clinical setting to address non-school related needs (Transcript pp. 4211, 4215) and an OT consult once per week to address school-based needs related to handwriting and endurance and to address the student's sensory integration deficits (Transcript pp. 4212, 4215).
Respondent's occupational therapist described aspects of her evaluation which assessed sensory integration skills (Transcript pp. 2527-28), noting that these methods of assessing sensory integration dysfunction were endorsed by the professional community (Transcript p. 2536). She explained that sensory integration therapy was a specific treatment approach, and suggested that other methodologies could be used to address the same deficits (Transcript pp. 2518-19). She questioned the efficacy of sensory integration therapy with older children, provided an example of how other methodologies could be used to address the same deficits, and noted that these alternative treatments produced the same results (Transcript pp. 2518-19, 2586). She testified that sensory integration deficits would require OT services if those deficits directly affected educational functioning, and gave examples of such deficits (Transcript pp. 2527-28), and noted that her evaluation did not identify this need (Transcript p. 2547). I agree with the impartial hearing officer that respondent's evaluation was appropriate and petitioner is not entitled to an IEE at public expense. The record in this matter fully supports the impartial hearing officer's finding that respondent demonstrated the appropriateness of its evaluation of the student. Moreover, the recommendation by petitioners' independent evaluator for the use of an AlphaSmart or tape recorder to assist with written assignments had been suggested and implemented by the student's teacher throughout the 2002-03 school year (Exhibit 13; see also, Application of a Child with a Disability, Appeal No. 02-092; Application of a Child with a Disability, Appeal No. 02-009).
Petitioners also request that the State Review Officer reverse the impartial hearing officer's finding that their daughter was not classifiable. This request is wholly without merit. Petitioners object to a comment repeatedly made by the impartial hearing officer in her decision that petitioners' daughter was "not educationally handicapped" (IHO Decision pp. 176, 177). At no time did the impartial hearing officer ever order that the student be declassified.
Finally, petitioners request that I "order implementation of a modified grading system which does not penalize the child for behaviors caused by her disability" (Am. Pet. p. 20). I decline to do so, given that petitioners have failed to persuade me that I have the authority to order a change in student’s grading system.
In conclusion, unfortunately the record reveals that the hearing in this matter was unnecessarily protracted, contentious, and at times uncivil (Application of a Child with a Disability, Appeal No. 01-057). I encourage the parties' representatives and the impartial hearing officer to keep any future impartial hearings focused on the educational needs of the child.
I have considered petitioners' remaining contentions and find them to be without merit.
THE APPEAL IS DISMISSED.
1 The page numbers cited in this decision were added to the impartial hearing officer's decision upon its receipt by the Office of State Review staff in the interests of clarity and accuracy. They were not a part of the record before the State Review Officer.