Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Newburgh Enlarged City School District
Marsh & Gaughran, LLP, attorney for petitioner, Laura A. Dempsey, Esq., of counsel
Shaw and Perelson, LLP, attorney for respondent, Marc E. Sharff, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which determined that the Orange-Ulster Board of Cooperative Educational Services (O-U BOCES) 12:1+4 program that respondent's Committee on Special Education (CSE) recommended for her son for the 2004-05 school year was appropriate. Respondent cross-appeals from that portion of the impartial hearing officer's determination which found that the student's transition plan lacked the specificity required by state law. The appeal must be sustained in part. The cross-appeal must be dismissed.
The student was 17 years old when the impartial hearing began in November 2004 (Joint Ex. 31 at p. 2). He had not received any educational instruction from respondent since September 2004 (Tr. p. 14), despite a May 2004 settlement agreement providing for "home instruction" at his mother's place of business (Tr. pp. 81-82; Joint Ex. 23 at pp. 2-3). The student had reportedly been diagnosed with cerebral palsy (Joint Ex. 42 at p. 1) and had multiple shunts as a result of hydrocephalus (Joint Ex. 19 at p. 1). As measured by the Wechsler Abbreviated Scales of Intelligence (WASI), the student’s intellectual potential was estimated to be in the “Extremely Low” range (Joint Ex. 42 at p. 3) and he performed academically at a kindergarten to second grade reading level (Parent Ex. A at p. 30; Joint Ex. 34 at p. 2). Within the school environment the student used a wheelchair for mobility (Joint Ex. 19 at p. 1). He had fine motor delays (Joint Ex. 39) and was unable to complete written assignments (Parent Ex. A at p. 25). The student used a computer for academic needs (Parent Ex. A at p. 25). The student had visual impairments (Joint Ex. 19 at p. 2, Joint Ex. 43 at p. 1; Tr. pp. 558) and was diagnosed as legally blind (Parent Ex. A at p. 5). He demonstrated behavior problems that interfered with learning, including aggressive outbursts and inattentiveness (Parent Ex. A at p. 20). The student’s strengths were his verbal abilities and social nature (Tr. pp. 374-75, 407). During the December 8, 2004 impartial hearing proceeding, petitioner's counsel reported that the student had begun receiving home instruction (Tr. p. 323). The student's eligibility for special education and his classification as a student with multiple disabilities are not in dispute in this appeal (see 8 NYCRR 200.1[zz]).
At the end of the 2002-03 school year the student was transferred from the district’s North Junior High School to a more restrictive program (Tr. p. 564) in the district’s Heritage Junior High School due to an escalating pattern of aggressive behaviors (Joint Ex. 34 at p. 1; Parent Ex. A at pp. 13, 29). The parent and CSE Chairperson agreed that the school district’s high school would be inappropriate for the student (Tr. p. 618) and further agreed that they would spend the 2003-04 school year looking for an out of district placement for the 2004-05 school year (Tr. pp. 141-42, 618-19). During the fall of 2003 the CSE Chairperson scheduled site visitations of programs that were potentially appropriate for the student and invited the parent to attend these visitations (Dist. Ex. 2).
The student began the 2003-04 school year at Heritage Junior High School, where he attended a 12:1+11 self-contained classroom (Tr. pp. 609-10; Joint Ex. 33) for approximately 18 days between September and December 2003 (Tr. pp. 564-65). Petitioner testified that her son's absence from school was due to medical reasons and incidences of disruptive behavior where she was called by the principal to pick up her son (Tr. pp. 565-66). On December 10, 2003, an incident occurred which resulted in the student being suspended from school (Tr. pp. 567-69, 750). A superintendent's hearing was held on December 18, 2003 (Tr. pp. 568-69), pursuant to Education Law § 3214 (Joint Ex. 23 at p. 1). In addition, a manifestation determination review was conducted in which it was determined that the incident was not related to the student’s disability (Tr. pp. 617, 750). Petitioner testified that as a result of the superintendent’s hearing, the student was suspended for 45 days (Tr. p. 568). Both parties requested a due process hearing related to this incident (Joint Ex. 23 at pp. 1-2).
A settlement was reached between the parties during May 2004 (Joint Ex. 23). The terms of the agreement provided, inter alia, that respondent would search for an appropriate out-of-district day program for the student (Joint Ex. 23 at p. 2). The parent and student visited two potential placements for the student, O-U BOCES in May 2004 (Tr. pp. 661-63) and REHAB Programs, Inc. in June 2004 (Tr. p. 669).
Respondent's CSE met on June 22, 2004 and August 11, 2004 (Joint Ex. 12 at pp. 5-6). The June 22, 2004 CSE meeting did not result in the formulation of a formal individualized education program (IEP) and did not generate a formal placement recommendation for the 2004-05 school year; rather, the meeting resulted in the development of a draft IEP (Parent Ex. A at p. 3). The June 22, 2004 minutes discussed, inter alia, two placements that had accepted the student: REHAB Programs, Inc. at the Poughkeepsie or Red Hook sites and O-U BOCES at the Goshen site (Parent Ex. A at p. 7; Joint Ex. 12 at p. 5). Petitioner testified that the Red Hook placement would be too far for the student to travel in a bus (Tr. pp. 685-88) and that the CSE respected her concerns by eliminating that placement from consideration (Tr. p. 693). With the exception of the parent, the CSE determined that the O-U BOCES High School 12:1+1 program would be an appropriate placement for the student (Tr. p. 217; Parent Ex. A at p. 7). The parent “abstained from this consensus” until she could observe the recommended program (Tr. p. 182; Parent Ex. A at p. 7). She reportedly agreed to do so and to inform the CSE of her decision by June 24, 2004 (Parent Ex. A at p. 7). The meeting was tabled (Tr. p. 217).
Following the CSE meeting the parent attempted to schedule an observation of the O-U BOCES 12:1+1 class (Tr. p. 576). She was told that the 12:1+1 class was no longer available and that the class had been changed to a 12:1+4 class (Tr. pp. 576, 707). On June 23, 2004, the CSE Chairperson learned that the 12:1+1 program at BOCES had been disbanded, with the exception of one group of students who were going to age out when the school year terminated; the other students had become part of the 12:1+4 program (Tr. pp. 185-86).
On or around July 17, 2004 the parent visited the O-U BOCES program along with the CSE Chairperson (Tr. pp. 188-89). The parent asked questions regarding work opportunities for her son (Tr. p. 299) and expressed concern regarding the abilities and needs of the other students slated for the class (Tr. p. 470), as well as the size of the proposed classroom (Tr. p. 477). The parent was unable to observe the proposed class (Tr. pp. 475-76) or classroom (Tr. p. 189).
The CSE reconvened on July 21, 2004. Because the committee was lacking information to complete the student’s IEP, the meeting was turned into a work session (Tr. pp. 184-85, 583, 726). The school district’s transition coordinator was present and the session was used to develop the student’s transition plan (Tr. pp. 583, 726).
The CSE met again on August 11, 2004 to propose a placement for the student for the 2004-05 school year. According to meeting minutes “the CSE reconfirmed its recommendation for a BOCES placement for the student's 2004-05 school year" (Joint Ex. 12 at p. 6). Specifically, the committee recommended the student for a 12:1+4 special class at the O-U BOCES Goshen site (Joint Ex. 12 at p. 1). Related services included group speech therapy twice weekly, monthly occupational therapy and vision therapy consultation services, and indirect vision consultation services (Joint Ex. 12 at pp. 1-2). The committee also recommended adaptive physical education three times weekly (Joint Ex 12 at p. 2). Testing accommodations included extended time (x1.5), special location if needed, answers recorded, directions explained and questions read (Joint Ex. 12 at p. 2). Alternative assessment was recommended (Joint Ex. 12 at p. 1). The student’s IEP listed numerous assistive technology devices required by the student (Joint Ex. 12 at pp. 2-3). Support for school personnel included a behavioral intervention plan (BIP) and monthly team meetings (Joint Ex. 12 at p. 3). The IEP indicated that the student needed an environment that allowed for peer relations and interactions and noted the student’s program should allow for changing classes when appropriate (Joint Ex. 12 at p. 3). A representative from the O-U BOCES program was not present for and did not otherwise participate in the August 11, 2004 CSE meeting.
The CSE discussed the student's proposed transition plan, voicing confidence that the plan was appropriate for the student to begin the 2004-05 school year in a BOCES placement, even though there were areas of the plan that needed additional details (Joint Ex. 12 at p. 6). The August 11, 2004 CSE minutes indicate that the parent was not in total agreement with that assessment of the plan but agreed to consider the additional details at the next scheduled CSE meeting and that a BOCES representative who would be able to provide the necessary information would be invited to attend that meeting (id.). During the impartial hearing, petitioner testified that she did not agree to the O-U BOCES placement at the August 11, 2004 CSE meeting and voiced her concerns at that meeting (Tr. p. 591).
By letter dated September 23, 2004, petitioner requested a due process hearing (Joint Ex. 1). The impartial hearing request was based on an alleged inappropriate placement decision made prior to the finalization of the student's IEP and the completion of the student's updated comprehensive psychological evaluation, updated speech-language evaluation, and BIP (Joint Ex. 1 at p. 1). Petitioner claimed that the IEP failed to address the student's behavior management because it included two divergent BIPs, which in turn, resulted in a denial of a free appropriate public education (FAPE) (Joint Ex. 1 at p. 3). Petitioner asserted that respondent’s failure to send completed IEPs to special classes in regular education buildings for consideration constituted a denial of a FAPE and violated least restrictive environment (LRE) requirements (id.). She further asserted that the program selected by respondent could not implement the provisions of the student's IEP (Joint Ex. 1 at p. 4). Petitioner stated that the student's IEP did not provide for a specific transition services plan (id.). She further stated that the student's IEP failed to fully evaluate the student and provide goals and objectives in the area of social skills (Joint Ex. 1 at p. 5), and failed to specify modifications or accommodations in Social Studies or Science (Joint Ex. 1 at pp. 5-6). Finally, petitioner contended that respondent violated the terms of the settlement agreement by failing to provide the student with 75 hours of academic instruction for the period commencing April 26, 2004 and terminating June 13, 2004 (Joint Ex. 1 at p. 6).
As part of the hearing request petitioner asked that respondent provide: appropriate public or private placement of the student in the LRE, complete evaluations in the areas of social skills and long-term memory, deletion of the June 1, 2004 BIP from the IEP, inclusion of a modified Social Studies and Science curriculum in the IEP, transportation expenses to and from an interim or new program, compensatory relief, and attorney fees (Joint Ex. 1 at p. 6). Petitioner concluded by invoking the student's stay-put provisions and requesting that the district maintain the student in his current educational placement of home instruction.
A pre-hearing conference took place on October 27, 2004 (Tr. p. 41). An impartial hearing convened on November 18, 2004 and concluded after four days of hearings. The impartial hearing officer (IHO) rendered her decision on March 7, 2005, finding that the IEP developed at the August 11, 2004 CSE meeting was appropriate because the recommended program was reasonably calculated to confer educational benefits upon the student in the LRE (IHO Decision, p. 13). She found that respondent's CSE had sufficient information upon which to base a placement decision at the August 11, 2004 CSE meeting (IHO Decision, pp. 9, 13) and that the student required a more intensive placement than one with a 12:1+1 program (IHO Decision, p. 8). She further found that the student would be suitably grouped with regard to age, classification, IQ, reading, and math achievement levels, and related services (IHO Decision, p. 10).
The IHO offered no determination as to the adequacy of the IEP implementation regarding the classroom size and its capacity to house the student's computer equipment, class size, and wheelchair transitioning and toileting. Nor did she offer a determination regarding the consistency of prior and current memory tests and their relationship with the goals and objectives developed with petitioner and adopted by the CSE. Rather, the IHO cited testimony upon which determinations could potentially have been made (IHO Decision, pp. 10, 11, 12), without expressly declaring her findings in those areas. Regarding the goals and objectives for a modified Social Studies and Science curriculum, the IHO found that the challenged IEP indicated that BOCES would provide a modified curriculum (IHO Decision at p. 12). She acknowledged that both parties were in agreement regarding the completion of a social skills assessment when the student was at school with his peers (id.).
The IHO recommended the student's gradual transition into the O-U BOCES program, if creation of such a schedule were acceptable to O-U BOCES (IHO Decision, p. 13). She determined that the transition plan lacked specificity, but stated that she would not decide that the student failed to receive a FAPE (IHO Decision at p. 12). She directed respondent to prepare a more precise transition plan, and noted that O-U BOCES staff would generate a transition plan for the student once they became familiar with him at their school (IHO Decision, p. 13).
On appeal, petitioner alleges that respondent's CSE violated the procedural provisions of state and federal law when it drafted the student's transition plan without inviting the attendance of a member of the agency that would be providing the transition services (Pet. ¶ 9). Petitioner contends that the IHO erred when she failed to consider respondent’s failure to draft a transition plan that accurately reflected the student's needs, abilities, preferences, or interests (Pet. ¶ 29). Petitioner further contends that the IHO erred when she failed to find that the student's transition plan procedurally and substantively violated state and federal law (Pet. ¶¶ 21, 30) and that the substantive violations of the Individuals with Disabilities Education Act (IDEA), based on transition plan deficiencies, precluded the student from deriving educational benefit from the plan and resulted in a denial of a FAPE (Pet. ¶ 31). She argues that the IHO failed to specifically indicate whether Social Studies and Science goals were required on the student's IEP (Pet. ¶ 36). Petitioner additionally argues that the IHO failed to consider respondent’s FBAs (Pet. ¶ 53) and the testimony from petitioner and the special education teacher regarding their O-U BOCES visit (Pet. ¶¶ 56-57; Tr. p. 820), while incorrectly relying on testimony from the O-U BOCES principal (Pet. ¶ 55; Tr. p. 453). Petitioner asserts that the IHO cannot delegate the CSE's duty to determine the student's program from respondent's CSE to the staff of the student's placement (Pet. ¶ 58). She further asserts that the IHO failed to show why the student should not be integrated with nondisabled peers in a less restrictive program (Pet. ¶ 65).
Petitioner requests that the State Review Officer: 1) find that the IHO erred when she failed to find procedural and substantive violations of state and federal law (Pet. ¶¶ 9, 21, 31, 50) and reverse these findings; 2) find that the IDEA requires appropriate social studies and science goals and order the CSE to draft such goals for the student (Pet. ¶ 40); 3) find that respondent committed a procedural violation of the IDEA when it failed to consider the student's program needs prior to placing him in a program (Pet. ¶ 50); 4) find that the student was denied a FAPE because of transition plan deficiencies (Pet. ¶ 31), petitioner's preclusion from meaningful participation in the CSE process (Pet. ¶ 50), and respondent’s failure to make specific LRE findings for the student (Pet. ¶ 65); 5) direct the CSE reconvene to determine the student's LRE (Pet. ¶ 65); 6) place the student in a setting with less noise, crowding, and congestion than the BOCES 12:1+4 program (Pet. ¶ 58); 7) award 150 hours of compensatory transitional services to make up for respondent’s alleged failure to provide certain transitional services (Pet. ¶ 74); and 8) order the IHO to maintain an open record in order to monitor respondent’s compliance with the relief requested (Pet. ¶ 75).
In its answer and cross-appeal, respondent appeals from that portion of the IHO's decision which determined that the transition plan lacked the specificity required by 8 NYCRR 200.4(d)(2)(viii) and (ix) (Answer ¶ 77), and asserts that the transition plan contained in the August 11, 2004 IEP complies with state and federal law (Answer ¶ 78). Respondent seeks dismissal of petitioner's appeal and requests that its cross-appeal be granted in its entirety.
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][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[D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]). 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 ; 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 ). 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 F.3d 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 LRE (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]).
An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 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 regulations require 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]; see also 8 NYCRR 200.4[d][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).
If a recommended placement is to be in a school other than the school district in which the student would normally attend if the student did not have a disability, the school district must ensure that a representative of that school attend the CSE meeting in which the IEP containing such recommendation is developed (8 NYCRR 200.4[d][i][a]; see 34 C.F.R. § 300.349[a]; Application of the Bd. of Educ., Appeal No. 05-023; Application of a Child with a Disability, Appeal No. 04-044; Application of a Child with a Disability, Appeal No. 04-043; Application of a Child with a Disability, Appeal No. 03-091; Application of a Child with a Disability, Appeal No. 03-046; Application of a Child with a Disability, Appeal No. 03-088; Application of the Bd. of Educ., Appeal No. 03-062). If a representative of the school cannot attend, the school district must use other methods to ensure participation by the school including individual or conference telephone calls (id.).
The record indicates that respondent's August 11, 2004 CSE met without the presence of an O-U BOCES or REHAB Programs, Inc. representative (Tr. pp. 280-81, 297, 529-30; Joint Ex. 12 at p. 5). The CSE Chairperson testified that a REHAB Programs, Inc. representative did not attend the CSE meeting because it was the BOCES placement that had been recommended at the June CSE meeting (Tr. p. 281). Although the CSE Chairperson testified that she made an effort to have O-U BOCES representation (Tr. p. 297), she stated that the BOCES representative was not available the day of the CSE meeting (Tr. p. 280). Petitioner stated that in addition to the lack of an O-U BOCES representative, no one from any of the proposed placements that had openings attended the CSE meeting (Tr. p. 584; Joint Ex. 12 at p. 5). No documentation in evidence was offered describing respondent’s efforts to secure a BOCES representative in person or by other means (Tr. p. 297). I find the absence from the CSE meeting of a representative from the CSE recommended placement in violation of state regulations (8 NYCRR 200.4[d][i][a]).
Had a representative of O-U BOCES been in attendance at the August 11, 2004 CSE meeting to explain the 12:1+4 program, petitioner would have had an opportunity for discussion with a knowledgeable representative of that school and the CSE regarding her concerns with respect to O-U BOCES and her questions as to whether it would be able to meet her son's individual needs (see Application of the Bd. of Educ., Appeal No.04-058; Application of a Child with a Disability, Appeal No. 03-091). The presence of a representative from O-U BOCES was particularly important here, because the 12:1+1 program originally deemed appropriate at the June 2004 CSE meeting (Tr. p. 213; Joint Ex. 12 at p. 5) was no longer offered (Tr. p. 218) and was replaced by a 12:1+4 program recommendation by the August 22, 2004 CSE (Tr. p. 218; Joint Ex. 12 at p. 1). As explained by the O-U BOCES principal, the 12:1+4 program was the most restrictive program offered at the O-U BOCES facility (Tr. p. 465).
Petitioner testified that when she visited the O-U BOCES program during the summer with the CSE Chairperson and the O-U BOCES principal, and asked to see the students in the classroom, she was told that the summer program was different (Tr. pp. 475-76, 588-89) and that the classrooms were scattered throughout the building (Tr. pp. 588-89). She further testified that when she asked the O-U BOCES principal if he could describe a typical day there, he replied that he was unable to, stating that everybody's day was different (id.). She stated that he was pressed to leave for personal reasons (Tr. p. 590). During testimony, the O-U BOCES principal stated that he answered the mother's questions, although maybe not to her satisfaction (Tr. pp. 547-48).
Petitioner subsequently visited O-U BOCES in September (Tr. p. 591) and had reservations regarding placement there (Tr. pp. 592-93). She testified that she was told her son’s computer could not be repositioned in the classroom and she was concerned about unexpected movements in her son’s peripheral field of vision triggering behaviors (Tr. pp. 599-600) because he often felt threatened when people come within his close periphery (Tr. p. 602). She explained at the hearing that this was a concern because her son needed space around him, although she indicated she thought his space needs could be accommodated by that placement (Tr. pp. 602, 677-78). She also stated concerns regarding levels of reading activity which were below his level (Tr. pp. 604-05) and lack of stimulation or challenge (Tr. p. 605), as well as concerns with the O-U BOCES’ estimate that it could take the whole school year to develop an appropriate transition plan (Tr. pp. 605-07).
Regardless of the placement facility, petitioner believes a 12:1+4 placement is not appropriate and is too restrictive for her son (Tr. pp. 708-09). Had the O-U BOCES representative participated in the August 11 meeting, the CSE and the parent would have been able to make a more informed decision as to the appropriateness of the recommended 12:1+4 placement at O-U BOCES.
Failing to comply with this procedural requirement effectively denied petitioner her right to meaningfully participate in the formulation of her son's IEP, resulting in a denial of a FAPE (Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y 2005]; Application of the Bd. of Educ., Appeal No. 05-031; Application of the Bd. of Educ., Appeal No. 04-058; Application of a Child with a Disability, Appeal No. 03-088; Application of the Bd. of Educ., Appeal No. 03-062).
Under the IDEA, to the extent appropriate for each individual student, an IEP must focus on providing instruction and experiences that enable the student to prepare for later post-school activities, including higher education, if appropriate, employment, and independent living (20 U.S.C. § 1401; see 34 C.F.R. § 300.29; N.Y. Educ. Law § 4401; 8 NYCRR 200.1[fff]; see 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 11).
Accordingly, beginning at the age of 15 (or younger if appropriate) under state regulations, the student's IEP must not only include a statement of the student's post-school transition needs, taking into account the student's preferences and interests (8 NYCRR 200.4[d][i][c]; see 34 C.F.R. § 300.347[b]), but must also include a statement of needed transition services being provided (8 NYCRR 200.4[d][ix]; see 20 U.S.C. § 1414[d][A][vii][II]; 34 C.F.R. § 300.347[b]; see also 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 11). Under state regulations, needed transition services and activities must be provided in instruction, related services, community experiences, development of employment and other post-school adult living objectives (8 NYCRR 200.4[d][ix], citing 8 NYCRR 200.1[fff]). State regulations also require at age 15 that the student's IEP include a statement of projected post-school outcomes, based on the student's needs, preferences and interests, in the areas of employment, post-secondary education, and community living (8 NYCRR 200.4[d][ix]; see Application of the Bd. of Educ., Appeal No. 05-015; Application of a Child with a Disability, Appeal No. 04-112).
During testimony, the school psychologist concluded that teaching the student vocational skills was the most critical part of his education plan (Tr. p. 403). Nevertheless, contrary to state regulations, the 2004-05 IEP fails to contain an adequate statement of the student's individualized post-transition needs, taking into consideration his preferences and interests (Joint Ex. 12). The 2004-05 IEP does not identify specific transition service needs, or provide for a specific coordinated set of transition activities in instruction, related services, community experiences, development of employment and other post-school adult living objectives (id.).
The CSE Chairperson testified that at the August CSE meeting there was complete agreement that the transition plan needed more work (Tr. pp. 279-80). The school psychologist stated that the transition plan was a bare bones type of plan (Tr. p. 413) that did not reflect the student's specific strengths (Tr. p. 415). The CSE Chairperson testified that the autumn CSE would more clearly define the plan based on evaluations and assessments made by the O-U BOCES; the O-U BOCES principal or representative would be able to explain in greater detail what O-U BOCES could provide (Tr. p. 193).
I find that the proposed transition plan does not reflect the student's individual needs, specifically his physical limitations (Joint Ex. 19 at p. 1), his sensitivity to his environment (Tr. p. 602) and his limited ability to attend (Parent Ex. A at p. 20). Nor does it reflect the student's strengths, such as his social nature (Tr. pp. 374, 407; Joint Ex. 19 at p. 2) or ability to learn through modeling (Tr. pp. 375-76). A more thorough discussion of these factors, coupled with a greater knowledge of available services at O-U BOCES would have enabled the August CSE to recommend more specific transition activities related to developing vocational skills. I agree with the IHO regarding the transition plan's lack of specificity. I find that the transition plan fails to comport with state regulations (8 NYCRR 200.4 [d]).
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. 03-009; Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 94-21). "[S]pecial education and related services must be provided in the least restrictive setting consistent with a [student's] needs" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]).
Petitioner asserts that the IHO cannot delegate the CSE's duty to determine the student's program from respondent's CSE to the student's placement staff (Pet. ¶ 58). She further asserts that the IHO failed to show why the student should not be integrated with non-disabled peers in a less restrictive program and seeks a determination as to the LRE for her son (Pet. ¶ 65).
As discussed above and noted in the August 11, 2004 IEP minutes, with the abstention of petitioner (Tr. p. 181; Parent Ex. A at p. 7), the June 22, 2004 CSE determined that the O-U BOCES High School 12:1+1 program would be an appropriate placement for the student (Tr. pp. 187, 213, 217, 572; Parent Ex. A at p. 7). The draft IEP resulting from the June 22, 2004 CSE meeting stated that, "The student needs an environment that allows for peer relations and interactions. Program shall allow for changing classes where appropriate" (Parent Ex. A at p. 4). The student’s recommended extended school year services for July/August 2004, as indicated on the draft IEP, consisted of placement in a 12:1+1 class with the support of a 1:1 aide (Parent Ex. A at p. 4).
Petitioner testified that there was no discussion at the June 22, 2004 CSE meeting regarding the proposed program ratio (Tr. pp. 572-73). Following the June 22, 2004 CSE meeting, petitioner attempted to schedule an observation of the O-U BOCES 12:1+1 class (Tr. p. 576). She stated that she was told by the O-U BOCES principal (Tr. p. 453) that there was not a 12:1+1 class, but rather that it was a 12:1+4 class (Tr. pp. 576, 707). Petitioner further testified that she notified her attorney (Tr. p. 576) and possibly the CSE Chairperson of this change (Tr. p. 576). The day following the CSE meeting, the CSE Chairperson was notified by the BOCES principal that the 12:1+1 program was no longer available (Tr. pp. 187, 213).
Petitioner testified that she was informed at the August 11, 2004 CSE meeting that the 12:1+1 program at the O-U BOCES was no longer available and that her son would be in the 12:1+4 program (Tr. pp. 584-85; see Joint Ex. 12 at p. 1). The CSE Chairperson testified that the August 11, 2004 CSE reconsidered the program that the BOCES principal described to her and the CSE agreed that the student's needs could be met in that particular program (Tr. pp. 218-19). Although the O-U BOCES principal testified that the CSE Chairperson had requested an 8:1:1 placement for the student and that O-U BOCES did not deem it to be the most beneficial program for him (Tr. pp. 466-67), petitioner testified that this was not discussed at the August 11, 2004 CSE meeting (Tr. p. 585). Petitioner further testified that there was no discussion regarding the basis for an appropriate student-teacher ratio for her son (Tr. p. 585). The CSE Chairperson testified that the proposed class ratio had changed because the site that had accepted the student no longer had the program and that the CSE determined the student’s needs could be met in that program (Tr. pp. 218-19).
While I do not determine whether the 12:1+4 class may have been able to appropriately address the student's needs, I am concerned about a program determination based on lack of program availability at a particular site, without the benefit of LRE discussion with the presence of a representative of the proposed placement site at the CSE meeting. Without the opportunity to discuss LRE parameters and programming with the O-U BOCES representative and/or other potential placement representative(s) at the August 22, 2004 CSE meeting, I find that the CSE made an inappropriate program determination.
I have considered respondent's contention that the transition plan included in the August 11, 2004 IEP complies with state and federal law (Answer ¶ 78) and find it to be without merit.
Accordingly, I find that petitioner's son was not offered a FAPE.
I have considered petitioner's and respondent’s remaining contentions, including their procedural arguments, and I find them to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
THE CROSS-APPEAL IS DISMISSED.
IT IS ORDERED that the decision of the IHO is annulled to the extent it found respondent had offered to provide an appropriate educational program to petitioner's son during the 2004-05 school year.
1 For the sake of internal consistency and ease of understanding, 12:1+1, 12:1:1, and 1:12:1 program configurations cited within the record will be uniformly referenced within this decision as the 12:1+1 program. Likewise, 12:1+4, 12:1:4, and 1:12:4 program configurations cited within the record will be uniformly referenced within this decision as the 12:1+4 program.
1 For the sake of internal consistency and ease of understanding, 12:1+1, 12:1:1, and 1:12:1 program configurations cited within the record will be uniformly referenced within this decision as the 12:1+1 program. Likewise, 12:1+4, 12:1:4, and 1:12:4 program configurations cited within the record will be uniformly referenced within this decision as the 12:1+4 program.