04-110

             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 son for the 2003-04 school year.  The appeal must be sustained in part.

            Initially, two procedural matters must be addressed.  Petitioners' reply raises additional allegations in response to respondent's answer.  Pursuant to the Regulations of the Commissioner of Education, a reply is limited to any procedural defenses interposed by respondent or to documentary evidence included with the answer (8 NYCRR 279.6).  Consequently, I have not considered those allegations raised by petitioners in their reply which do not respond either to procedural defenses interposed by respondent or address additional documentary evidence included with the answer (Application of a Child with a Disability, Appeal No. 04-064; Application of a Child with a Disability, Appeal No. 02-009; Application of a Child with a Disability, Appeal No. 98-37).                    

            Secondly, petitioners have submitted additional documents including a neuropsychological evaluation dated August 27, 2004 and request that they be considered in this appeal.  In its answer, respondent objects to the admission of these documents, specifically the neuropsychological evaluation.  Generally, documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary in order to render a decision (see generally Application of a Child with a Disability, Appeal No. 05-001; Application of the Bd. of Educ., Appeal No. 04-068; Application of a Child with a Disability, Appeal No. 04-030; Application of a Child with a Disability, Appeal No. 04-020).

            Respondent objects to the evaluation submitted by petitioners for consideration on appeal and asserts that it was not before the impartial hearing officer and "is of limited probative value" (Ans. ¶ 21).  The central issue in this appeal is the appropriateness of the program recommended by respondent's Committee on Special Education (CSE) on October 22, 2003.  It is not necessary that the evaluation annexed to the petition be considered on review because the evaluation was performed some 10 months after the child's 2003 annual review and it does not reflect the child’s needs at the time the CSE conducted the annual review in dispute and formulated the child’s program.  Moreover, the evaluation has not been considered by the CSE, reviewed by the impartial hearing officer, or subjected to examination at the hearing below (8 NYCRR 200.5[i][3][xii]), and is, therefore, of limited probative value pertaining to the issues on appeal.  The other annexeddocuments are also not necessary for my review. I decline to consider petitioners' additional documents as well as respondent’s submission to the Office of State Review by cover letter dated January 18, 2005 (Application of a Child with a Disability, Appeal No. 04-082).

            At the time of the hearing, petitioners' son was nine years old and had been placed on home instruction by respondent's CSE as set forth in the child’s last agreed upon individualized education program (IEP) dated August 13, 2003 (Dist. Ex. 89).  The child also received the related services of individual occupational therapy (OT) five times every two weeks for one hour and individual speech-language therapy five times every two weeks for one hour at petitioners' home in accordance with the IEP (Dist. Ex. 89).    At various times, petitioners' son has had medical diagnoses of pervasive development disorder not otherwise specified (PDD NOS) (Dist. Exs. 1, 80, IHO Ex. 3), Asperger's syndrome (Dist. Exs. 43, 80, 81), anxiety disorder not otherwise specified (Dist. Ex. 43, 80, 81), sensory integration disorder (Dist. Exs. 80, IHO Ex. 3) and an attention deficit hyperactivity disorder (ADHD) (Dist. Exs. 43, 81).  The child’s eligibility for special education as a student with autism is not in dispute (see 8 NYCRR 200.1[zz][1]).

            The child was first determined eligible for special education by respondent's CSE on July 18, 2001, as a student with an other health-impairment (OHI) based upon his medical diagnosis of PDD-NOS (Dist. Exs. 12, 14; see 8 NYCRR 200.1[zz][10]).  Respondent's CSE recommended a 12-month program.  For the summer of 2001 (summer 2001 IEP), the CSE recommended "itinerant services" in academic instruction for 90 minutes per week, OT for 90 minutes per week, and speech therapy for 90 minutes per week (Dist. Exs 12, 14).  The CSE case summary indicated that the committee would reconvene in August 2001 to review the child's program and recommend services for the 2001-02 school year (Dist. Ex. 14).  According to the summer 2001 IEP, the child was not used to being away from his mother.  The summer 2001 IEP also indicated that new and/or noisy environments were stressful for him even when his mother was present.  He was described as engaging in repetitive behavior such as hand-flapping.  The child was not toilet trained and required guidance from day to day with redirection of attention and intervention to restrain impulsive behaviors.  The child was also described as having some weak fine motor skills and some sensory integration deficits (Dist. Ex. 12). 

            On August 30, 2001, the CSE reconvened to recommend the child's program for the 2001-02 school year (2001-02 IEP) (Dist. Exs. 18, 19).  The committee recommended a self-contained 12:1+4 Board of Cooperative Educational Services (BOCES) special education classroom located at respondent's Moreau Elementary School (BOCES BEARS) (Dist. Exs. 18, 19).  Respondent's CSE recommended the related services of individual speech-language therapy five times per week for 30 minutes, individual OT three times per week for 30 minutes, group OT once per week for 60 minutes, a counseling consult with the child's parents twice per month for 30 minutes, a team meeting for the child's teacher and service providers once per month for 30 minutes, and a 1:1 teaching assistant for six and one-half hours per day (Dist. Exs. 18, 19).  The committee also recommended that both speech-language and physical therapy (PT) evaluations be completed in the fall, a program review in four weeks and a plan to transition the child from part- to full-time during September 2001 (Dist. Ex. 18).  The child's 2001-02 IEP described his present levels of performance and noted that it was "difficult to obtain" a clear picture of his intelligence due to behaviors of PDD (Dist. Ex. 19).  He was described as likely having average to high average intelligence and demonstrating   uneven and inconsistent academic readiness skills, although it appeared that he knew more than he could demonstrate (Dist. Ex. 19).  The 2001-02 IEP also indicated that the child has deficits in adaptive behavior, primarily with expressive speech, self-care skills and interpersonal interactions.  His needs included instruction in pragmatic language, intensive guidance to improve consistency in academic performance and instruction in social interactions.  The IEP also described improved social functioning as his primary area of need, with gradual exposure to unfamiliar people and situations recommended (Dist. Ex. 19). 

            According to the record, the child attended BOCES BEARS for five days, at which time it was determined that his level of functioning was higher than the population being served in the program.  Teacher and parent reports indicated that BOCES BEARS did not provide an atmosphere that would allow the student to develop social skills through peer interaction (Dist. Exs. 23, 24, 25).  Respondent's CSE reconvened on October 1, 2001 and recommended placement in a regular education kindergarten classroom for half the day and a self-contained 12:1+1 Language Concepts classroom for the rest of the day (Dist. Exs. 24, 25).  Both classrooms were located at respondent's Karigon Elementary School (Dist. Ex. 25).  The committee also recommended consultant teacher services for two hours per week for the regular education classroom (Dist. Ex. 25).  The related services of individual speech-language therapy once per week for 30 minutes, group speech-language therapy "two-three" times per week for 30 minutes, individual OT once per week for 30 minutes, group OT once per week for 30 minutes, and a counseling consult twice per month were pushed-in to the self-contained classroom (Dist. Ex. 25).  Respondent's CSE also recommended a shared 1:1 aide, a sensory diet with an OT consult and a program review in early November 2001 (Dist. Ex. 25).

           A December 2001 teacher report indicated that the child could recognize all upper and lower case letters, the numbers 1-20, identify many shapes and could associate sounds with 20 letters (Dist. Ex. 31).  The teacher also reported that when shown a picture, the child could identify the first letter of the object depicted (id.).  The teacher also indicated that the child enjoyed listening to stories, that he showed interest in a family themed Social Studies project and had shared information with the group (id.).  Respondent's CSE reconvened on December 6, 2001, to review the child's progress in the Language Concepts class (Dist. Ex. 33).  The CSE case summary indicates that the committee continued to recommend the shared 1:1 aide, approved additional OT goals and objectives and had revised the child's program goals and objectives (id.).  The CSE also recommended that the child's OT consult increase to twice per month through June 2002.

          By letter dated May 21, 2002, the parents requested an independent educational evaluation (IEE) (Dist. Ex. 36).  By individual letters, both dated May 29, 2002, respondent agreed to pay for an independent behavioral evaluation (Dist. Ex. 37) and an independent OT evaluation (Dist. Ex. 38).  On June 1, 2002, respondent's CSE reconvened to review the parents' request for additional outside testing (Dist. Ex. 40).  According to the CSE case summary, the child attended only the afternoon self-contained portion of the recommended program for an average of three afternoons per week (Dist. Ex. 40).  The CSE case summary noted that attempts to increase the child's attendance had been unsuccessful and that he was currently being reevaluated by two private agencies.  The case summary also indicated that recent assessments in OT and speech-language had been received and that the committee had approved IEEs in the following disciplines:  PT, updated psychoeducational, and speech-language (Dist. Ex. 40).  The child's annual review was tabled in order to await the completion of the IEEs.  Also at this meeting, respondent's CSE recommended "summer programming in Shen Summer Program," transportation, OT services twice per week for 30 minutes "group and consult" for the summer 2002 (Dist. Ex. 40). 

         According to the independent OT evaluation dated June 5, 2002, the child presented with significant sensory motor delays, demonstrated poor registration, sensory sensitivity, sensory seeking and sensory avoidance behaviors (Dist. Ex. 44).  The evaluator stated that the child's avoidance behaviors may manifest as severe mood swings, low frustration tolerance, task avoidance, fidgeting in his seat, reluctance to participate in new tasks and decreased attention to lessons (Dist. Ex. 44).

        An OT progress report from June 2002 recommended the continuation of direct services twice per week in a small group as well as the consult to classroom staff (Dist.  Ex. 45).  The child's demonstrated needs were related to sensory processing, pencil grasp, scissors skills, dressing fasteners such as buttons, zippers, shoelaces, and putting on outer winter clothing such as snow pants and boots.  The OT provider indicated that the child was developing good writing skills, but needed the opportunity to use them consistently.  The OT provider opined that the student needed to continue working on letter formation, letter sizing and word spacing (Dist. Exs. 45, 46).

         A "final" summer 2002 IEP dated July 1, 2002 recommended a self-contained 10:1+2 special education classroom five times per week for five and one-half hours per day at a location to be determined (Dist. Ex. 49).  The CSE also recommended group OT twice per week for 30 minutes (Dist. Ex. 49).  Reportedly, the parents notified respondent by telephone of their intent to withdraw their son from the summer program (Dist. Ex. 50).  By letter dated July 10, 2002, respondent's CSE Chairperson requested that:  1) the parents confirm their decision to withdraw their son from the 2002 summer program in writing, 2) provide the CSE with the names of the independent evaluators so that she may send an approval letter to each, 3) provide a list of suitable dates for the child's annual review, and 4) advise the CSE on the status of the independent behavioral evaluation (Dist. Ex. 50).  A CSE meeting was scheduled for August 5, 2002, but was cancelled by the parents (Dist. Exs. 52, 53).  Another CSE meeting was scheduled for August 16, 2002 (Dist. Ex. 54).  By letter dated August 1, 2002, respondent approved an independent psychoeducational evaluation (Dist. Exs. 55, 63).  By letter dated August 9, 2002, the parents stated that 30 minutes was not enough time for their son's annual review and requested an additional meeting (Dist. Ex. 56). 

        Respondent's CSE convened on August 16, 2002.  For the 2002-03 school year, the committee recommended that the child's classification be changed to autism (Dist. Ex. 59).  The CSE further recommended placement in a regular education first grade classroom with a pull out for one hour daily to a 12:1+2 special education "Academic Needs" classroom (Dist. Ex. 59).  The CSE recommended the related services of individual OT twice per week for 30 minutes to be pushed into either classroom, group counseling once per week for 30 minutes to be pushed into either classroom, and a full time 1:1 aide (Dist. Exs. 59, 60). 

        By letter dated August 16, 2002, the parents asserted that they were denied participation at the CSE meeting held earlier in the day and requested another meeting for August 26, 2002 (Dist. Ex. 61).  The parents also indicated that the IEEs were not ready and asserted that the OT evaluation was not reviewed at the meeting.  The record reflects that a CSE meeting was scheduled for September 5, 2002, but cancelled by the parents (Dist. Exs. 64, 65).  By letter dated September 5, 2002, the parents informed respondent that they would home school their son for the 2002-03 school year and requested that all of his IEP services be pushed into the home (Dist. Ex. 66).  By letter dated September 10, 2002, the child's mother notified respondent's school psychologist that she did not approve of the 12:1+2 first grade classroom she visited and indicated that she felt she had been denied information that she had appropriately requested (Dist. Ex. 68). 

       On September 2, 12, and 16, 2002 the child was assessed by a private neuropsychologist at public expense.  The child was administered the Differential Abilities Scale (DAS), Scales of Independent Behavior-Revised (SIB-R), selected subtests of the Wechsler Individual Achievement Test-Second Edition (WIAT-II), selected subtests of "NEPSY - A Developmental Neuropsychological Assessment" and the Behavior Assessment for Children (BASC) (Dist. Ex. 69).  On the DAS, the child obtained a verbal cluster score of 103, placing him in the 58th percentile, and a nonverbal cluster score of 84, placing him in the 14th percentile.  The evaluator indicated that the variability in his performance renders the child's general conceptual abilities score "uninterpretable."  The child's verbal domain scores were within the average range.  His nonverbal domain performance ranged from borderline to average, with particular weaknesses on graphomotor and numerical tasks.  On the WIAT-II, his single word reading skills fell within the average range (42nd percentile), his single word spelling skills fell within the average range (25th percentile), and weaknesses in executive functioning were noted (Dist. Ex. 69).  The evaluator stated that the child "displays clear evidence of anxiety within less predictable social settings, resulting in more instantaneous disregulation and impulsive responding" (Dist. Ex. 69).  The evaluator recommended placement in a smaller, consistent setting with fewer transitions and more opportunities for independent functioning.  She noted that careful planning and presetting of activities would be necessary to help the child engage in more structured group activities.  She further recommended systematic desensitization techniques as well as sensory regulation therapies.  The evaluator also opined that the child's educators needed to recognize that the child's behavioral patterns were responses to elevated levels of anxiety and hyperstimulation, rather than purposeful noncompliance (Dist. Ex. 69).

       By letter dated September 19, 2002, the parents requested that all of the child's related services as set forth on his IEP be provided in the home.  The parents also requested that respondent provide indirect consultant teacher services to the mother by a teacher with a background in autism (Dist. Ex. 70). 

       On September 27, 2002, an independent speech evaluation was completed at public expense (Dist. Ex. 73).  The evaluator recommended that the child receive speech-language therapy three times per week for 30 minutes in a small group to address language-based deficits and pragmatic delays (Dist. Ex. 73).

       By letter dated September 30, 2002, respondent's CSE Chairperson offered to provide OT twice per week for 30 minutes and a weekly sensory diet consult in the home (Dist. Ex. 74).  Respondent's CSE Chairperson indicated that PT and speech-language therapy would not be provided in the home until the IEEs had been received by the CSE (Dist. Ex. 74).  By letter dated October 4, 2002, the parents advised respondent that they did not agree with the 2002-03 IEP and postponed OT services until an agreement could be reached to address his needs in this area (Dist. Ex. 75).  By letter dated December 20, 2002, respondent requested an individualized home instruction plan (IHIP) from petitioners (Dist. Ex. 76).  By letter dated May 14, 2003, petitioners requested that a one and one-half hour CSE meeting be scheduled (Dist. Ex. 77).

       By memo dated June 18, 2003, the child's treating psychiatrist informed the CSE that the child was diagnosed as having Asperger's syndrome, ADHD, and anxiety NOS (Dist. Ex. 81).  She recommended a 6:1+2 class "for high functioning PDD students which is consistent [and] quiet in its environment" (Dist. Ex. 81).  By letter dated June 24, 2003, the parents requested a CSE meeting to be scheduled after 1:00 p.m. and that a written copy of a draft IEP be provided at least ten days in advance of the meeting (Dist. Ex. 82).

       The record reflects that a meeting was held on June 24, 2003 at which program options were discussed (Dist. Exs. 83, 88, Parent Exs. PB5, PD1).  The meeting concluded without consensus (Dist. Ex. 83).  By letter dated June 30, 2003, respondent's CSE Chairperson confirmed that the June 24, 2003 CSE did not reach consensus, the meeting was tabled and enclosed a copy of the draft IEP (Dist. Ex. 83).

       By letter dated July 14, 2003, the child's pediatrician stated that the child "has social anxiety, a sensory neuro dysfunction, autism, and pervasive development disorder (Dist. Ex. 80).  He needs assistance in learning coping skills, self-help toileting skills, sensory issues, visual scheduling, presetting, transition and self-prep scheduling" (Dist. Ex. 80).  She recommended a classroom with no more than six students with appropriate modifications and a 1:1 aide trained in "Asperger's, autism spectrum," speech therapy, OT and "an academic program that will meet his normal IQ in order to maximize his long term potential for success" (Dist. Ex. 80).

      By letter dated August 4, 2003, the parents advised respondent's CSE Chairperson that they wanted their son placed in a 6:1+2 classroom (Dist. Ex. 87).  By letter dated August 11, 2003, respondent's CSE Chairperson reiterated all of the classrooms and private schools offered at the June 24, 2003 CSE meeting (Dist. Ex. 88).  The CSE reconvened on August 13, 2003 (Dist. Ex. 89).  The CSE recommended the continuation of home instruction until September 30, 2003, during which time the parents were to observe four classrooms with the school psychologist.  The committee also recommended a behavior intervention consult, OT, speech-language therapy and offered the services of an independent psychologist to consult on behavioral support strategies (Dist. Exs. 89, 91).  By letter dated August 20, 2003 the parents stated their objections to each of the proposed classrooms (Dist. Ex. 93).  By letter dated August 22, 2003, petitioners advised respondent's CSE Chairperson that her letter to the independent psychologist was misleading and that they now were no longer in agreement with the services and withdrew the behavior intervention consult (Dist. Ex. 94).

      By letter dated August 28, 2003, the parents advised respondent's CSE chair that they were refusing OT services because it was inappropriate and refusing speech-language therapy because there were no goals and objectives (Dist. Ex. 97).  By letters dated September 14, 2003 and September 19, 2003, petitioners made a formal complaint to the office of Vocational and Educational Services for Individuals with Disabilities (VESID) alleging violations of the Individuals with Disabilities Education Act (IDEA) for the 2001-02 school year (Dist. Ex. 101) and for the 2002-03 school year (Dist. Ex. 100).

     By letter dated September 23, 2003, respondent's CSE Chairperson summarized the CSE meeting that had occurred earlier that day (Dist. Ex. 102).  The parents were to observe four classrooms by October 2, 2003 and the documents shared with the independent psychologist were identified.  The CSE Chairperson also reiterated that the OT and speech-language service providers had been denied access to the home "due to family occurrences" (Dist. Ex. 102). 

     The CSE reconvened on October 22, 2003 to recommend the child's program for the 2003-04 school year (Dist. Ex. 105).  The CSE recommended a self-contained 12:1+3 special education "Academic Needs" classroom located at respondent's Chango Elementary School (Dist. Ex. 105).  The committee also recommended individual OT five times per two-week period for 30 minutes, and individual speech-language therapy five times per two-week period for 30 minutes (Dist. Ex. 105).  The CSE again recommended a behavior intervention consult by the independent psychologist three times per month and the parents were in agreement (Dist. Ex. 105).  The CSE also recommended program modifications of preferential seating, simplified directions, transitions, activities and assignments, extended time to complete tasks, a sensory diet, and refocusing and redirection (Dist. Ex. 105).  The CSE also incorporated all of the recommendations of the independent neuropsychologist into the IEP with the exception of the classroom size recommendation.  The CSE recommended the following supports:  provide a predictable, consistent, quiet environment with minimal transitions, sensory diet including a personal space for regular breaks, reduce distractions and avoid sensory overload situations, utilize a combination of at least two teaching modalities at a time, provide errorless teaching techniques, pair instruction with reinforcements, preset and practice in advance specific activities to be done that require complex motor planning, provide daily visual schedules, presetting, and planning with a visual sheet accompanied with auditory cues, provide accurate information about changes in activities and in expectations, allow extra processing time and response time, avoid punitive measures as they increase his anxiety, ignore self-stimulation behaviors and incorporate a systematic desensitization program (Dist. Ex. 105).

      By letter dated October 23, 2003, respondent's CSE Chairperson formally requested services from the independent psychologist (Dist. Ex. 107).  Also by letter dated October 23, 2003, respondent's CSE Chairperson advised petitioners that they needed to register their son to attend Chango Elementary School (Dist. Ex. 108). 

      On October 24, 2003, respondent's school psychologist completed an educational evaluation.  She administered the WIAT-II over three sessions due to the child's refusal to participate in the assessment (Dist. Ex. 110).  In word reading, the child achieved a standard score of 97 and a grade equivalent of 2.0.  The child achieved a standard score of 92 and a grade equivalent of 1.8 on numerical computation.  In spelling, the child achieved a standard score of 91 and a grade equivalent of 1.7.  The evaluator indicated that the child displayed average reading ability, although a standard score was not obtained for the reading comprehension subtest.  Based upon observation, the evaluator stated that the child was a fluent reader who read primarily from his sight word vocabulary, which was evidenced by his inability to decode unfamiliar words.  The child was also observed to have adequate comprehension of passages on a concrete or literal level.  The child's spelling and math skills fell within the low average range (Dist. Ex. 110). 

       By letter dated December 1, 2003, VESID informed petitioners of the result of its investigation (Dist. Ex. 114).  VESID found that all but one of petitioners' allegations could not be sustained.  Petitioners' allegation relative to the child's annual goals was sustained:  "The annual goals are not specific and are not measurable.  The objectives/benchmarks are sufficiently specific, measurable and provide the criteria and method of evaluation" (Dist. Ex. 114).  Respondent was required to reconvene a CSE meeting with the parents and develop measurable annual goals for the 2003-04 school year and submit them to VESID by January 10, 2004 (Dist. Ex. 110). 

      On January 6, 2004, respondent's CSE reconvened to address VESID's findings (Dist. Exs. 118, 135, 137).  The purpose of the meeting was to develop measurable goals and to correct a typographical error:  the child's OT services were for one hour five times per two-week period rather than 30 minutes (Dist. Exs. 116, 118, 137).  By letter dated January 8, 2004, respondent advised VESID of the January 6, 2004 meeting and provided documentation of its corrective action of developing measurable goals with the parents (Parent Ex. S13).  By letter dated January 19, 2004, petitioners advised respondent's CSE Chairperson that they wanted a different speech-language provider (Dist. Ex. 120).  By letter dated February 27, 2004, respondent's CSE Chairperson requested that Kid's Care provide a speech therapist in the home (Dist. Ex. 124; see also Dist. Exs. 122, 123).  By letter dated March 2, 2004, Kid's Care informed respondent's CSE Chairperson that they could not provide speech therapy services because they were currently understaffed (Dist. Ex. 125).  By letter dated March 17, 2004, respondent's CSE Chairperson requested that Achievements provide a speech therapist in the home (Dist. Ex. 126).  By letter dated March 30, 2004, respondent's CSE Chairperson notified the parents that they must either register their son for school or provide proof of home schooling by April 19, 2004 (Dist. Ex. 127). 

       By letter dated March 31, 2004, petitioners requested an independent neuropsychological evaluation at public expense (Dist. Ex. 128).  By letter dated May 10, 2004, petitioners advised respondent's CSE Chairperson that they could not attend the May 20, 2004 CSE and that their attorney had requested an impartial hearing (Dist. Exs. 130, 134).            

      The hearing began on June 21, 2004.  Testimony was heard for four days and concluded on August 25, 2004.  The impartial hearing officer rendered her decision on November 15, 2004 finding that the 2003-04 IEP was reasonably calculated to enable the child to receive educational benefit and that petitioners' son had not been denied a FAPE.

            In this appeal, petitioners allege that the impartial hearing officer failed to apply the proper legal standards, overlooked numerous procedural and substantive violations, request that the impartial hearing officer's decision be annulled in its entirety and seek "[c]orrective services to be provided for the three years that the student was denied an appropriate program" (Pet. ¶¶ 2, 3, Pet. pp. 17, 19).  Nonetheless, the main point of disagreement in this proceeding is whether the child's needs can be addressed in the recommended 12:1+3 class.

            I will first address petitioners' claims relative to the 2001-02 and 2002-03 school years.  The child was first classified by the CSE at a meeting held July 18, 2001 (Dist. Ex. 12).  Respondent sent an invitation to the parents to attend that CSE meeting and a copy of petitioners' due process rights by letter dated July 3, 2001 (Dist. Ex. 9).  Petitioners received copies of their due process rights with each CSE invitation and following each meeting when respondent's CSE Chairperson formally sent a summary of the committee's recommendations to them (Dist. Exs. 9, 15, 16, 20, 22, 27, 30, 34, 35, 39, 41, 51, 52, 54, 62, 64, 78, 79, 92, 103, 104, 112, 113, 121, 135).

            Petitioners did not request a hearing until May 10, 2004 (Dist. Ex. 134).  Petitioners were aware of their right to seek a hearing as of July 3, 2001.  They did not object to the 2001-02 IEP and did not seek an impartial hearing.  At the June 1, 2002 CSE meeting, the case summary reflects that the child attended the self-contained portion of the program and his attendance averaged three afternoons per week (Dist. Ex. 40).  During the 2001-02 school year, the parents requested and respondent approved two IEEs (Dist. Exs. 37, 38).  On June 1, 2002, respondent approved an additional three IEEs (Dist. Ex. 40).  For the 2002-03 school year, the parents objected to the IEP on August 16, 2002 (Dist. Ex. 60), did not request a hearing, and on September 5, 2002, informed respondent that they would home school their son (Dist. Ex. 66).  

            I find that petitioners' claims relative to the 2001-02 and 2002-03 school years are time-barred (see Application of a Child with a Disability, Appeal No. 04-082; Application of a Child with a Disability, Appeal No. 02-119).  Although the IDEA does not prescribe a time period in which requests for administrative impartial due process hearings must be asserted, the State Review Officer has applied a one-year time period in light of recent case law requiring me to adopt the most appropriate analogous state statute of limitations (M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221 [2d Cir. 2003]); (Application of the Bd. of Educ., Appeal No. 03-062; Application of the Bd. of Educ., 02-119).  Federal rules of accrual apply (Leon v. Murphy, 988 F.2d 303 [2d Cir. 1993]); hence, the time period for requesting an impartial hearing to resolve disputes under the IDEA or Article 89 of the New York Education Law begins to run when petitioners knew or should have known of the injury involved, in this case for example, petitioners allege they objected to the 2002-03 IEP on August 16, 2002 (M.D., 334 F.3d at 221).                   

           The record shows that petitioners knew of their due process rights on July 18, 2001 and knew of each violation when it allegedly occurred, but did not request an impartial hearing until May 10, 2004.  Thus, because petitioners requested an impartial hearing on May 10, 2004, those claims that arose prior to May 10, 2003 are untimely under the one-year statute of limitations and are dismissed (Application of a Child with a Disability, Appeal No. 05-029; Application of a Child Suspected of Having a Disability, Appeal No. 04-059; Application of the Bd. of Educ., Appeal No. 02-119).         

            I now turn to the appropriateness of respondent's recommended program for the 2003-04 school year.

           The purpose behind the IDEA (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]).  A FAPE consists of special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[8][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]). A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]).  The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]).  The 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 [2001]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 04-043).

          To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). Not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  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]), e.g., resulted in the loss of educational opportunity (Evans v. Bd. of Educ., 930 F. Supp.83, 93-94 [S.D.N.Y. 1996]), seriously infringed on the parents' opportunity to participate in the IEP formulation process (see W.A. v. Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D. K., 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002]).  As for the program itself, the Second Circuit has observed 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).  This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

         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. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]).  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).

        Petitioners’ primary contention is their allegation that their son was denied a FAPE for the 2003-04 school year because the CSE failed to recommend a 6:1+2 special education classroom of high functioning children on the autism spectrum (Dist. Ex. 116).

        Petitioners' son has been receiving services in the home for the last two years.  The record reveals that the child was successful in a 12:1+1 Language Concepts class during the 2001-02 school year (Dist. Exs. 31, 45, 47, 48; Tr. pp. 86-87).  The child has not been in a classroom setting since then (Tr. pp. 83-86).  The record reflects that the recommendations of each evaluator were incorporated into the IEP (Dist. Ex. 105) and can be implemented in the recommended Academic Needs classroom (Tr. pp. 26-34, 126, 127-28, 128-29, 129-30, 130-31, 131, 177-78, 180-82, 182-83, 183-84) as deemed appropriate by respondent's CSE.

        New York regulations require the following with respect to teacher student ratios in special classes:

(1) A student with a disability shall be placed in a special class for instruction on a daily basis to the extent indicated in the student's individualized education program.

(2) In all cases the size and composition of a class shall be based on the similarity of the individual needs of the students according to:

(i) levels of academic or educational achievement and learning characteristics;

(ii) levels of social development;

(iii) levels of physical development; and

(iv) the management needs of the students in the classroom.

(3) A special class shall be composed of students with disabilities with similar individual needs.

(4) Special class size for students with disabilities. The maximum class size for those students whose special education needs consist primarily of the need for specialized instruction which can best be accomplished in a self-contained setting shall not exceed 15 students, or 12 students in a State-operated or State-supported school, except that:

(i) The maximum class size for special classes containing students whose management needs interfere with the instructional process, to the extent that an additional adult is needed within the classroom to assist in the instruction of such students, shall not exceed 12 students, with one or more supplementary school personnel assigned to each class during periods of instruction.

(ii) (a)   The maximum class size for special classes containing students whose management needs are determined to be highly intensive, and requiring a high degree of individualized attention and intervention, shall not exceed six students, with one or more supplementary school personnel assigned to each class during periods of instruction.

       (b)  The maximum class size for special classes containing students whose management needs are determined to be intensive, and requiring a significant degree of individualized attention and intervention, shall not exceed eight students, with one or more supplementary school personnel assigned to each class during periods of instruction.

(iii) The maximum class size for those students with severe multiple disabilities, whose programs consist primarily of habilitation and treatment, shall not exceed 12 students. In addition to the teacher, the staff/student ratio shall be one staff person to three students. The additional staff may be teachers, supplementary school personnel and/or related service providers.

(8 NYCRR 200.6[g])

           In the instant case, the child is transitioning from two years of home instruction to a classroom environment.  The record does not support petitioners' contention that their son has highly intensive management needs requiring a class size of no more than six children.  Respondent's CSE Chairperson testified that a 6:1 classroom is for children with low cognitive ability or severe behavioral problems (Tr. pp. 27, 35, 36, 38-39, 82; see also 8 NYCRR 200.6[g]).  The independent psychologist also testified that a 6:1 classroom is for children with low cognitive ability or severe behavioral problems and opined that a classroom of that size would not be in the LRE for the child (Tr. pp. 178, 179-80, 230, 232-33; see also 20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[a][2]; 8 NYCRR 200.6[g]). Respondent's CSE Chairperson also testified that the committee selected the 12:1+3 classroom as the most appropriate based upon a review of each of the independent evaluations and based upon the needs and functioning levels of petitioners' son (Tr. pp. 68-70, 70-80, 105; see also Dist. Exs. 105, 133).  According to the class profile, all of the children require a structured, small group setting for learning, and all but one require social skills training as does petitioners' son (Dist. Ex. 133).  The class profile also indicates that the reading abilities of the children in the recommended class range from the beginning of kindergarten to the end of first grade (id.).  The math abilities of the children in the recommended class range from the end of kindergarten to the end of "second/modified third grade level" (id.).  All, but one of the children receive speech-language therapy, and half of the children receive OT and PT (Dist. Ex. 133).  I have considered the recommendations of the independent evaluators relative to class size and I find that the evidence in the record supports respondent's recommended 12:1+3 classroom and comports with New York regulations requiring grouping children of similar needs.  I further find that the 12:1 classroom is the LRE.

           Based upon the foregoing, I find petitioners' contentions with respect to the recommended program for the 2003-04 school year are without merit.¹

           Petitioners also seek reimbursement for an independent neuropsychological evaluation (Pet. p. 17). The record reflects that respondent has already agreed to pay for this evaluation (Parent Exs. T1, T3, T4, T8, T17, T18, AI, AJ) and must reimburse the parents if they have not already done so. 

            I have considered petitioners' remaining contentions and I find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent's CSE shall reconvene to review the independent neuropsychological evaluation completed on August 27, 2004 if it has not already done so; and

IT IS FURTHER ORDERED that respondent reimburse the parents for the cost of obtaining the independent neuropsychological examination in the amount of $1,745.00 if it has not already done so.