05-002

Petitioner, the Board of Education of the Ramapo Central School District, appeals from the decision of an impartial hearing officer which ordered it to provide five hours per week of after school special education itinerant teacher (SEIT) services for respondent's daughter for the 2004-05 school year.  The impartial hearing officer further found that respondent's daughter was ineligible for extended school year (ESY) services.  Respondent cross-appeals.  The appeal must be dismissed.  The cross-appeal must be dismissed.

At the outset, a procedural matter must be addressed. Respondent objects to the State Review Officer having granted petitioner leave to amend its petition (Am. Ans. ¶¶ 1-8), asserts that the amended petition was improperly served (Am. Ans. ¶¶ 9-13), and requests that the amended petition be dismissed (Am. Ans. ¶ 14).  The State Review Officer has sole discretion to reject documents that do not comply with the Regulations of the Commissioner of Education (8 NYCRR 279.8[a]).

An appeal from a decision of an impartial hearing officer is not generally dismissed for service irregularities (Application of a Child with a Disability, Appeal No. 04-084; Application the Bd. of Educ., Appeal No. 02-070; Application of a Child with a Disability, Appeal No. 93-7; Application of a Child with Disability, Appeal No. 93-2).  Here, petitioner properly personally served a petition and memorandum of law, however the documents did not comply with the form requirements of the Commissioner's Regulations (8 NYCRR 279.8). Although state regulations require personal service, petitioner improperly served respondent by mail with an amended petition and amended memorandum of law (8 NYCRR 275.8). There is no indication in the record that respondent consented to such service or that permission by the Office of State Review for such service had been given. Nevertheless, I find that respondent effectively responded to petitioner's allegations in a timely manner upon receipt of the amended petition and I will not dismiss the amended petition for improper service (Application of the Bd. of Educ., Appeal No. 04-085; Application of a Child with a Disability, Appeal No. 04-084; Application of a Child with a Disability, Appeal No. 02-009; Application of a Child with a Disability, Appeal No. 01-055; Application of a Child with a Disability, Appeal No. 93-2). However, I remind petitioner of the practice requirements of Part 279 of the Commissioner's Regulations and caution that failure to comply with service and form requirements may result in the dismissal of a petition.

When the hearing began on August 16, 2004, respondent's daughter was five years old and receiving services in accordance with an individualized education program (IEP) for the 2003-04 school year dated August 15, 2003, as her pendency program (see Parent Ex. G;¹ see also Application of a Child with a Disability, Appeal No. 04-064).  She has been diagnosed as having a pervasive development disorder - not otherwise specified (PDD-NOS) (Parent Ex. A), and classified as having autism by petitioner's Committee on Special Education (CSE). Her classification is not in dispute (Dist. Exs. 1, 3, Parent Ex. G).

For the 2003-04 school year (2003-04 IEP) the CSE recommended that the child be classified as having autism and recommended a 12:1 inclusion classroom for half the day and a 12:1+1 special education classroom for the remaining half of the school day (Parent Ex. G).  The CSE also recommended the related services of group counseling once per week for 30 minutes, individual occupational therapy (OT) twice per week for 30 minutes, group OT once per week for 30 minutes, OT consult twice per month for 15 minutes, group speech-language therapy three times per week for 30 minutes, parent training once per month for 45 minutes and a 1:1 aide.  Petitioner's CSE further recommended special transportation and a bus monitor for the student (id.).

According to the 2003-04 IEP, the student has delays in spontaneous language skills, social skills, attentional skills and sensory integration skills, which inhibit participation in age appropriate activities (Parent Ex. G).  The record reflects that the parent initially objected to the 2003-04 IEP and the CSE reconvened on August 15, 2003, at which time the IEP was "approved" (Parent Ex. G at p. 1).  The minutes discussing the August 15, 2003 CSE meeting also indicate that the parent requested 10 hours per week of home-based SEIT services, but the CSE did not recommend those services (id.).

On September 9, 2003, the parties entered into a settlement agreement which provided in relevant part that the district would offer seven and one-half hours of home-based SEIT services per week from September 3, 2003 through December 19, 2003 and five hours of home-based SEIT services per week from January 5, 2004 through June 24, 2004, if the parent agreed that the SEIT services would not be part of the 2003-04 IEP (Dist. Ex. 2).

An educational evaluation was administered on February 11, 2004, as part of the child's triennial evaluation (Dist. Ex. 9).  The evaluator reported that the child was able to recognize sight and sound for all 26 letters in the alphabet and was beginning to add numbers.  Her teachers described her as a sweet child who becomes resistant and frustrates easily during some writing assignments.  Progress was noted but the child was reported to continue to need verbal and visual cues to follow through with daily classroom routines.

On the Test of Early Written Language (TEWL), the child performed within the superior range in the area of written expression (Dist. Ex. 9).  Likewise, on the Test of Early Reading Ability–Second Edition (TERA-2), respondent's daughter also performed in the superior range in the area of reading (id.).  During the testing the child's behavior was described as focused, cooperative and she was willing to take chances.  On the Test of Early Mathematics Ability (TEMA), she performed within the above average range.

The evaluator concluded that respondent's daughter was functioning within the superior range in the areas of writing and reading and in the above average range in mathematics (Dist. Ex. 9).  The evaluator noted frustration towards the end of testing but recommended that she continue to receive services in an integrated setting.

The Wechsler Primary and Preschool Scale of Intelligence-Third Edition (WPPSI-III) was administered on February 19, 2004, by petitioner's school psychologist (Dist. Ex. 13).  Testing yielded a verbal IQ score of 110, a performance IQ score of 98, and a full scale IQ score of 102.   The evaluator reported that the child's subtest scores were all within the average range (id.).  On the Receptive One-Word Picture Vocabulary Test (ROWPVT), the child received a standard score of 106 (Dist. Ex. 13).  The child received a standard score of 126 on the Expressive One-Word Picture Vocabulary Test (EOWPVT) (id.).  On the Wide Range Achievement Test–Third Edition (WRAT–3), the child scored in the 90th percentile for reading, the 97th percentile in spelling and the 77th percentile in mathematics (Dist. Ex. 13).

The child's adaptive behavior was assessed using the Vineland Adaptive Behavior Scale (Dist. Ex. 13).  Testing revealed the child's behavior composite was in the moderately low range.  In the domain of communication, the child's written and expressive communication were found to be adequate, while her receptive communication was found to be moderately low.  In the domain of daily living, the child's community skills were found to be average, her domestic skills were found to be moderately low and her personal skills were low.  In the domain of socialization, interpersonal relationships, play and leisure and coping skills were rated as moderately low.  In the domain of motor function, both the child's gross and fine motor skills were found to be adequate (Dist. Ex. 13).

In February 2004, respondent's daughter was evaluated by a private pediatrician and a school psychologist at a center for developmental pediatrics.  The resultant report (Parent Ex. A) noted that the child required much more 1:1 support to complete tasks than would be expected for a child her age.  Eye contact was reported to be variable and the child had difficulty sustaining direct interaction.  The report noted that the child's attention was variable as she required frequent repetition of questions and was easily distracted.  The child needed support and refocusing and required many short breaks.  When the child demonstrated some frustration, her reaction was intense and extreme.  She was noted to have difficulty regulating the volume of her voice.

The center psychologist also administered the WPPSI-III, and testing again yielded a full scale IQ score of 102 (Parent Ex. A).  The center psychologist also repeated the WRAT–3, and the child's skills were found to be above grade level in reading and spelling skills and within her grade level for mathematics skills.

The center psychologist also assessed the child's adaptive functioning using the Vineland Adaptive Behavior Scales (Parent Ex. A).  A parental based interview rated the child's adaptive behavior in the moderately low range.  Communication skills and motor skills were rated as adequate while socialization skills were rated as moderately low and daily living skills were rated in the low range. 

Respondent's daughter was also assessed using the Childhood Autism Rating Scale (CARS) (Parent Ex. A).  The child's overall score on this assessment was 30, placing her within the range of an Autistic Spectrum Disorder and indicating that the sum total of her behaviors met the criteria in the mild range.

A triennial psychoeducational evaluation was administered by petitioner's school psychologist on February 25, 2004 (Dist. Ex. 4).  The child was once again administered the Vineland Adaptive Behavior Scales.  According to the results, respondent's daughter was rated to be functioning within the adequate level in the communication domain.  On both the daily living skills and socialization domains, she was rated in the moderately low level of functioning. The evaluator noted a significant level of concern in both the daily living skills and socialization areas of functioning.

The evaluator also used the CARS to evaluate the child's behavior related to her diagnosis of autism (Dist. Ex. 4).  Her overall composite score was again a 30, indicating that her behaviors could be categorized as within the autistic range.  Petitioner's school psychologist noted that the child's score indicated that she exhibited fewer autistic behaviors when examined across a continuum of typical autistic behaviors.  The report stated that some items such as the ability to relate with people, emotional responses and the ability to adapt to change were rated as greatly atypical.  Other items such as visual and listening responses, activity level and reactions to mild pain were rated as mildly atypical.

A behavioral intervention plan (BIP) dated April 12, 2004, described the child as making "great" progress over the year, but having difficulty with impaired social interactions, impaired or inappropriate use of language, restrictive and repetitive patterns of behavior and sensory difficulties (Dist. Ex. 12 at p. 2).  Cuing, redirection and counseling were reported as effective intervention strategies.  The child was also described as responding best with routines and in structured situations.  A functional behavioral assessment (FBA) identified attending skills, tantrum behavior and social skills as areas to be addressed.  The child's difficulty with attending often was the result of unstructured time and large group academic instruction.  The resultant behavior included loss of eye contact and focus.  The BIP defined goals as:  increase the child's on task behavior, increase eye contact through routine, break down tasks into small steps, clarify instructions, visual aids, verbal prompts and cuing.

On March 7, April 1, May 7, and June 2, 2004, petitioner's CSE convened to develop the student's IEP for the summer 2004 and the 2004-05 school year (2004-05 IEP) (Dist. Ex. 2).  The 2004-05 IEP again described the child as having delays in spontaneous language skills, social skills, attentional skills and sensory integration skills, which inhibit participation in age appropriate activities (Dist. Ex. 1).   For the summer 2004, petitioner's CSE recommended the related services of individual OT twice per week for 45 minutes each, and individual speech-language therapy three times per week for 30 minutes each.  For the 2004-05 school year, petitioner's CSE recommended an integrated 12:1 special education classroom, a 1:1 aide and the related services of group counseling once per week for 30 minutes, individual OT twice per week for 30 minutes, group OT once per week for 30 minutes, group speech-language therapy three times per week for 30 minutes, a counseling consult and parent training each once per month for 30 minutes each (Dist. Ex. 1; see also 8 NYCRR 200.13[a][4], 200.13[a][6], 200.13[d]). 

On June 2, 2004, petitioner's CSE reconvened at the parent's request to reconsider the summer services and "clarify" the summer providers (Dist. Ex. 1).  The parent planned to send the child to a private day camp and requested that the CSE provide speech-language therapy, OT and 25 hours of SEIT services at that site.  The CSE continued to only recommend speech-language therapy and OT and offered the parent "the continuity of the monitor," if the parent voluntarily chose to send the child to petitioner's summer school.  If the parent chose to send the child to the private day camp the CSE would only provide the related services of speech-language therapy and OT. 

The parent objected to the summer 2004 and 2004-05 IEP and requested an impartial hearing on June 15, 2004 (Application of a Child with a Disability, Appeal No. 04-064). ²  In the hearing request the parent sought 25 hours per week of SEIT services to be provided by the district at a private day camp that the student attended at the parent's expense for the summer of 2004 (id.).  The parent listed nine objections to the recommended program for the 2004-05 school year and also sought five hours per week of home-based SEIT services to be provided during the 2004-05 school year, which had not been recommended by the CSE (id.). 

The hearing began on August 16, 2004.  Testimony was heard for seven days and the hearing concluded on October 27, 2004.  At the hearing, respondent indicated that he had no objection to his daughter's goals and objectives as set forth in the 2004-05 IEP (Tr. p. 88).  The parties agreed that petitioner would list the report of the center for developmental pediatrics and certain test scores on the child's 2004-05 IEP and that petitioner would pay for the attendance of the SEIT provider at two 45-minute meetings (Tr. pp. 98-100).  Respondent alleged his procedural rights had been violated because petitioner's CSE chairperson had prevented the parent from discussing SEIT services at the CSE meetings at which the child's 2004-05 IEP had been developed.  The parent also requested an ESY program that included SEIT services to be provided at the private day camp and sought SEIT services to be provided in the home during the 2004-05 school year.

By decision dated December 1, 2004, the impartial hearing officer determined that the 2004-05 IEP was both procedurally and substantively flawed.  The impartial hearing officer found that petitioner had violated respondent's rights when its CSE chairperson prevented discussion of SEIT services at the child's annual review (IHO Decision, p. 28).  The impartial hearing officer also found that the parent had shown that his daughter required five hours of after school SEIT services in order to benefit from her educational program (IHO Decision, p. 22).³  The impartial hearing officer ordered petitioner to provide five hours per week of after school SEIT services and denied respondent's request for ESY services at a private day camp (IHO Decision, pp. 28-29).

In this appeal, petitioner asserts that the impartial hearing officer erred in awarding after school SEIT services (Am. Pet. ¶ 14), requests the annulment of that portion of the impartial hearing officer's decision (Am. Pet. p. 5) and seeks a stay of the order that the SEIT services be provided, pending a determination of this appeal (Am. Pet.  ¶ 15).  Respondent cross-appeals, asserting that their daughter is entitled to receive ESY services (Ans. ¶ 49).⁴  Respondent also requests reimbursement for privately obtained SEIT services during the summer 2004 (Ans. ¶¶ 52, 53).  Respondent did not seek reimbursement at the hearing below (IHO Decision, p. 28), as such, his request is not properly before the State Review Officer (Application of a Child with a Disability, Appeal No. 04-019; Application of a Child with a Disability, Appeal No. 01-024).

The IDEA ensures that each child with a disability is provided a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; 34 C.F.R. § 300.121[a]).  A FAPE consists of special education and related services provided in accordance with an IEP (20 U.S.C. § 1401[8]; 34 C.F.R. § 300.13).  To meet its burden of showing that it provided a FAPE to an individual child, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]).  The student's right to a FAPE has been affected when the procedural violation results in the loss of the student's educational opportunity or seriously infringes upon the parents' opportunity to participate in the development of the student's IEP (see Evans v. Bd. of Educ., 930 F. Supp. 83, 93-94 [S.D.N.Y. 1996]; W.A v. Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]; Application of a Child with a Disability, Appeal No. 02-015). The student's recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).  An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (20 U.S.C. § 1414[d]; Application of a Child with a Disability, Appeal No. 04-008; Application of a Child with a Disability, Appeal No. 01-105).  An IEP must include measurable annual goals, including benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a][2]; 8 NYCRR 200.4[d][2]).  In addition, an IEP must describe how the student's progress towards the annual goals will be measured and how the student's parents will be regularly informed of such progress (34 C.F.R. § 300.347[a][7]; 8 NYCRR 200.4[d][2][iii], 200.4[d][2][xi]).

An IEP must also include a statement of the special education and related services and supplementary aids and services to be provided to or on behalf of the student, as well as a statement of the program modifications or supports for school personnel that will be provided to the student (34 C.F.R. § 300.347[a][3]; 8 NYCRR 200.4[d][2][iv]).  Such education, services and aids must be sufficient to allow the student to advance appropriately toward attaining his or her annual goals (34 C.F.R. § 300.347[a][3][i]; 8 NYCRR 200.4[d][2][iv][a]).

The record supports the impartial hearing officer's determination that the parent's opportunity to participate in the development of the child's 2004-05 IEP was seriously infringed upon when petitioner's CSE chairperson refused to allow any discussion of the child's SEIT services at the child's annual review (Tr. pp. 183-184, 190-195).  The record reveals that the child was receiving SEIT services pursuant to an agreement between the parties at the time of her annual review.  The record further reflects that the child was making progress in a program that included SEIT services. In the situation presented here, the child's parent was prevented at the CSE meeting from discussing and reviewing the appropriateness of SEIT services provided to the child during the 2003-04 school year, the effectiveness of which was pertinent to the fashioning of the 2004-05 IEP.  Moreover, the parent was prevented from discussing the need for SEIT services for the 2004-05 school year and from discussing the development of a revised educational program that did not envision supplemental SEIT services. The appendix to the federal regulations of the IDEA states that "[t]he parents of a child with a disability are expected to be equal participants along with school personnel, in developing, reviewing, and revising the IEP for their child" (see 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 5). The record reflects that petitioner seriously infringed upon respondent's right to participate in the formulation of the 2004-05 IEP. Moreover, I note that the child has been receiving SEIT services since transitioning from preschool, and based upon a review of the record, petitioner did not demonstrate that the 2004-05 IEP was reasonably calculated to provide educational benefit without the provision of the SEIT services.

I have considered both petitioner's and respondent's remaining contentions, including the child's eligibility for ESY services, and I find them to be without merit.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.