05-061

             Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their son's tuition at Oakwood Friends School (Oakwood) and related costs for the 2002-03 school year.  The appeal must be dismissed.

            This appeal was initially before me as Application of a Child with a Disability, Appeal No. 03-092, and on November 6, 2003 I dismissed the petition for review on procedural grounds. Petitioners appealed Application of a Child with a Disability, Appeal No. 03-092, to the United States District Court for the Southern District of New York and the matter is now before me for a second time having been remanded with direction to issue a decision on the merits (Gagliardo v. Arlington Cent. Sch. Dist., 373 F. Supp. 2d 460 (S.D.N.Y. 2005).  Pursuant to the court’s decision, petitioners were provided an opportunity to supplement their petition on remand with all relevant information relating to their claim of hearing officer bias.  Petitioners submitted a supplement to their petition including exhibits to support their allegations of hearing officer bias on July 15, 2005.  Respondents submitted an answer on July 22, 2005.

            The student was 17 years old and in the 12th grade at Oakwood when the impartial hearing began in September 2002.  Oakwood is a coeducational, college preparatory, private school serving 120 day students in grades 6 through 12, dedicated to educating students intellectually, physically and spiritually in a culturally diverse community (Parent Ex. 96).  It is not a special education school and provides a "rigorous" education program (id.).  Oakwood has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities.  The student's eligibility for special education programs and services, and his classification as a student with an emotional disturbance (8 NYCRR 200.1[zz][[4]) are not in dispute.

            The student has a longstanding history of being teased and bullied, and afraid to go to school (Dist. Ex. 7; Tr. pp. 438, 449).  He reportedly first exhibited symptoms of depression in the fifth grade (Dist. Ex. 10; Tr. p. 455), and began seeing a therapist on a weekly basis in 1996 when he was in the sixth grade (Tr. p. 885).  Also in sixth grade, the student began putting on a lot of weight (Tr. p. 457).  In April 1998, a psychiatrist began treating the student for depression, and in December 2001 for social anxiety (Tr. pp. 845, 855).  His treatment for depression included various trials of antidepressants (Dist. Ex. 10).

            The student began attending Arlington High School for ninth grade during the 1999-2000 school year (Parent Ex. 111).  After being threatened by another student in October 1999, the student's anxiety about attending school increased (Tr. p. 664).  He felt overwhelmed, he skipped classes and missed school, and his grades declined (Tr. pp. 664-65).  The student earned final averages of 81 for English, 81 for Global History, 87 for Math, 81 for Introduction to Physical Science and 66 in Italian II (Parent Ex. 111).

            The student attended Arlington High School for tenth grade during the 2000-01 school year where he continued to feel anxious about school (Tr. pp. 682-83, 696).  By the end of February 2001, the student refused to attend school (Tr. p. 710).  Petitioners then arranged for his admission to the Adolescent Intensive Outpatient Program (AIOP) at Saint Francis Hospital (Saint Francis) to commence on February 26, 2001 (Tr. p. 694).  Saint Francis does not provide academic instruction (Tr. p. 699).  In a registration and screening form dated February 26, 2001, a Saint Francis social worker noted the student's depression and anxiety, and reported that the student had not been receiving medication for approximately three years (Parent Ex. 79).  The registration and screening form includes a mental status examination and a problem appraisal (id.).

            In a March 2001 Saint Francis social work summary, the social worker noted that the student was receiving care at Saint Francis for various conditions including recurrent severe depression for which he was taking medication (Dist. Ex. 6).  He indicated that while at Saint Francis, the student participated in group, family and individual counseling to address problems including difficulties in school (id.).  The social worker further indicated that the overall goal for the student was to return to school, and opined that the student would need a structured, educational setting before making the transition back into school (Dist. Ex. 6).  The social worker recommended extended home tutoring (id.), which respondent began providing to the student on March 7, 2001 (Tr. p. 702).  The student attended the AIOP at Saint Francis and received home instruction for approximately one month (Tr. p. 704).  On March 23, 2001, the student's guidance counselor referred the student to Dutchess Intensive Day Treatment (IDT), as a transition from the hospital setting to the public school (Parent Ex. 78; Tr. pp. 322, 703).  He was scheduled to attend the IDT program for 30 days (Dist. Ex. 7).

            Petitioners referred their son to respondent's Committee on Special Education (CSE) by letter dated March 16, 2001, which was received by respondent on March 27, 2001 (Dist. Ex. 13).  In early April 2001, petitioners consented to an evaluation of their son (Dist. Ex. 16) and completed a social history (Dist. Ex. 8).  The social history indicated that the student had been teased and bullied by other children, had a history of depression, attended Saint Francis, and did not want to attend school due to depression (id.).

            In April and May 2001, one of respondent's school psychologists conducted an evaluation of the student (Dist. Ex. 7).  Administration of the Wechsler Adult Intelligence Scale - Third (WIAS – III) yielded a verbal IQ score of 118, a performance IQ score of 113 and a full scale IQ score of 117 indicating overall intellectual functioning in the high average range.  On the Wechsler Individual Achievement Test (WIAT), the student's reading and writing composite scores were rated to be within the average range and his math composite score was within the superior range.  Social/emotional testing suggested that the student may feel a pervasive discomfort with school and revealed results associated with anxiety, internalization and repression of feelings.  The school psychologist also conducted a behavioral observation of the student at IDT while the student was involved in a structured social time facilitated by the class teacher and a social worker.  The school psychologist reported that the student sat quietly slumped in his seat, and made less eye contact after it was his turn to participate.

            Respondent's CSE met on June 11, 2001 for an initial review (Dist. Ex. 3).  After reviewing various evaluations including information from Saint Francis,¹ the CSE classified the student as having an emotional disturbance and recommended that he receive resource room services one period per day, individual counseling once per month and various testing modifications.  It also developed an individualized education program (IEP) for the student for the remainder of the 2000-01 school year (Dist. Ex. 3) and one for the 2001-02 school year when he would be in the 11th grade (Dist. Ex. 4).  The IEPs are essentially the same and contain goals and objectives to address organization and study skills and to improve socially acceptable behaviors.

            The student returned to Arlington High School for approximately the remaining two weeks of tenth grade (Tr. pp. 717-18, 726-27).  He earned final averages of 65 in English, 73 in Global History, 36 in Math and 81 in Biology.  He did not pass the Math Regents exam and repeated the course during the summer of 2001 (Parent Ex. 94; Tr. p. 719).

            In September 2001, the student returned to Arlington High School for 11th grade (Tr. p. 730).  Shortly thereafter, he began exhibiting symptoms of depression and anxiety (id.), and, on September 20, 2001, the student refused to attend school (Tr. p. 733).  On October 16, 2001, the student's treating psychiatrist met with the student and completed a "Homebound Instruction Report of Examination" indicating that the student could not attend school due to severe anxiety and depression (Dist. Ex. 12).  Respondent began providing home instruction to the student on October 22, 2001 (Tr. p. 743).  In November 2001, petitioners arranged for a psychiatric evaluation of their son at New York University's Child Study Center (CSC) (Dist. Ex. 10).

            On November 13, 2001, petitioners advised respondent's CSE that they were withdrawing their consent for their son's special education services because his needs had changed since the IEP was initially developed in June 2001 (Dist. Ex. 23).  The following day petitioners requested a CSE meeting and an extension of their son's home instruction (Dist. Ex. 24).  The CSE Chairperson scheduled a CSE meeting for the end of November (Dist. Ex. 25), which was rescheduled at petitioners' request because they had not yet received the evaluation report from the CSC (Dist. Ex. 26).

            In a letter dated December 5, 2001, the director of clinical services at the CSC confirmed that the CSC had evaluated the student  (Dist. Ex. 28).  He noted the student's history of depression.  He further noted that the student appeared extremely anxious at the prospect of returning to public school.  The director of clinical services opined that the student would benefit from an alternative placement in light of the student's continued symptoms of anxiety disorder coupled with his history of depression.  He recommended a setting with a smaller student to teacher ratio and a more supportive or therapeutic environment to allow the student to reintegrate into a school setting.  He noted the importance of an academic curriculum at an appropriate level given the student's abilities.  The director of clinical services cautioned that home instruction "merely reinforces the relief felt when an anxious student avoids attending school" and "makes it even more difficult for a struggling student to return to an academic environment."

            In a letter dated December 7, 2001, the student's treating psychiatrist indicated that the student was under his psychiatric medical care for depression and anxiety (Dist. Ex. 29).  He recommended that the student attend a school with a smaller student to teacher ratio and a strong academic curriculum to challenge the student.

            The CSE met on December 12, 2001 (Dist. Ex. 73).  Petitioners indicated that in October 2001 their son became more depressed and more anxious.  They requested continued home instruction while they explored their son's condition further.  The CSE reviewed the December 5, 2001 letter from the director of clinical services at the CSC which petitioners requested serve as primary current information.  The CSE described different types of alternative high school programming including The Karafin School (Karafin) (Tr. p. 155), a small, special day school in Mount Kisco, New York (Dist. Ex. 77; Tr. pp. 369-70, 374), approved by the Commissioner of Education.  The CSE agreed to reconvene to review further information or to request additional information to determine the degree of emotional support and treatment the student would require if an alternate high school program were recommended.

            In a letter dated December 13, 2001, the student's treating psychiatrist notified respondent that the student required further home instruction until an appropriate setting was located for him to continue his studies (Dist. Ex. 32).  Respondent continued to provide home instruction to the student (Dist. Ex. 33).

            In January 2002, at petitioners' request, respondent's director of special education arranged for petitioners to visit Karafin "purely on an exploratory basis" (Dist. Ex. 36).  She explained to petitioners that the CSE had not made a placement recommendation at the December 2001 CSE meeting because their son's current levels of need for emotional support and counseling were still being determined and were significant factors in determining programming.

            Respondent received the CSC psychiatric evaluation report on February 7, 2002 (Dist. Exs. 10, 40).  In his evaluation report, the director of clinical services at CSC indicated that the student's recurrent symptoms of depression and anxiety interfered with his ability to function well in school.  He further indicated that the persistent pattern of symptoms with occasional exacerbations is consistent with a diagnosis of Dysthymia with intermittent Major Depressive Episodes.  The director of clinical services at CSC opined that the student's school refusal, coupled with numerous concerns about running into peers in the school and social withdrawal was suggestive of social anxiety, most likely consistent with Social Phobia.  He indicated that the student's impairment was of sufficient severity that he would not easily adapt to the public high school setting.  The director of clinical services at CSC indicated that the student required a smaller, structured yet therapeutic or more supportive setting in which his educational and emotional needs could be met.  He noted the importance of an academic curriculum of a sufficient level to enable the student to learn.

            The CSE convened on February 11, 2002 to review the student's program (Dist. Ex. 74).  The director of clinical services at the CSC participated by telephone.  He noted that the student was responding to treatment for Dysthymia, but indicated that the student continued to be at risk and should not be overwhelmed.  The director of clinical services at the CSC opined that the student's anxiety was a bigger concern and that social anxiety was preventing the student from returning to school (Parent Ex. 116 at p. 3).  He indicated that the student needed a small setting that would work with him when he was anxious and help him with anxiety management, negotiating situations as they arise (Parent Ex. 116 at p. 4).  He further indicated that someone within the school setting should know how to help a student with anxiety specifically (id.).  When asked about whether the student required weekly counseling, the director of clinical services at the CSC suggested a "point person" for the student to "check in with" on a daily basis.  He recommended that the point person should know how to manage anxiety, have the flexibility to address situations as they arise and meet with the student's teachers to help them negotiate situations (Parent Ex. 116 at p. 5).  The director of clinical services at the CSC clarified his recommendation for group intervention, explaining the need for, as well as the difficulty in finding the right mix of students, ages and issues (Parent Ex. 116 at p. 8).  He indicated that to some extent, many concerns would be addressed during the school day.  He recommended more formal intervention outside of school (Parent Ex. 116 at p. 9).  The director also noted the importance of having an academic component at an appropriate level to meet the student's needs (Parent Ex. 116 at pp. 4-5).

            Petitioners signed authorizations for release of information to Karafin and the other schools discussed at the meeting (Dist. Exs. 41, 71), and on February 14, 2002 respondent's director of special education submitted material "giving a rounded picture of the student" including the November 2001 CSC evaluation to those schools for consideration (Dist. Ex. 42; Tr. p. 172).

            On March 1, 2002 petitioners and their son visited Karafin and met with Karafin's associate director (Tr. pp. 370, 777).  Later that month, petitioners contacted Family Advocates, Inc. for a recommendation for an evaluator to conduct a neuropsychological evaluation (Tr. pp. 947, 1010).  Petitioners contacted the recommended neuropsychologist on March 15, 2002 (Dist. Ex. 103).

            On April 29, 2002, petitioners requested a CSE meeting (Dist. Ex. 49), sent a letter to respondent's director of special education indicating that they visited the private schools discussed at the February 2002 CSE meeting and explaining the reasons the schools were not appropriate for their son (Dist. Ex. 50), completed an application for admission to Oakwood (Parent Ex. 97), and authorized and requested that their son's transcript and testing information be released to Oakwood (Dist. Ex. 76).

            In a letter dated May 16, 2002, petitioners advised respondent's director of special education that "your evaluations of my son are not correct in diagnosing his disability, therefore not correct in educating or treating him" (Dist. Ex. 51).  They requested an independent evaluation to be conducted by the neuropsychologist to whom they had been referred in March 2002.

            The CSE met on June 7, 2002 for the student's annual review (Dist. Ex. 75).  The CSE reviewed petitioners' letter explaining their dissatisfaction with the programs they visited.  They were asked for suggestions, but provided none (Dist. Ex. 75; Tr. p. 186).  Petitioners also were asked to provide consent for academic skill testing using the WIAT.  By letter dated June 10, 2002 to respondent's director of special education, the student's father explained that he did not sign the consent form because the same test was being administered by the neuropsychologist (Dist. Ex. 53).  He suggested that another test be administered (id.).

            Progress reports were sent to petitioners during the 2001-02 school year in November 2001, and in January and April 2002 noting that progress in IEP goals could not be achieved due to poor attendance (Parent Ex. 80), or that the student was receiving home instruction the entire marking period (Parent Exs. 81, 82).  At the end of 11th grade, the student earned final averages of 77 in English, 79 in U.S. History, 73 in Math and 80 in Physics.  He did not pass the English and Physics Regents exams (Dist. Exs. 11, 95).  On July 1, 2002 the student's father requested English and Physics tutoring for his son so he could take the Regents exams again in August (Dist. Ex. 55).  Respondent arranged for test preparation for the student and he passed both exams (Dist. Exs. 56, 57; Tr. p. 193).

            On July 8, 2002, the student was accepted at Oakwood (Parent Ex. 98).  On July 11, 2002, the CSE met to finalize the student's program for the 2002-03 school year (Dist. Ex. 5).  It recommended that the student be placed at Karafin with various program modifications and testing accommodations, and that he receive individual counseling once per week.  The IEP developed as a result of that meeting notes the student's depression and anxiety, and provides that the student requires special instruction in an environment with a smaller student to teacher ratio and minimal distractions in order to progress in achieving learning standards.  It includes goals and objectives to address social skills, social/emotional/behavioral functioning, and career and vocational activities.

            On July 16, 2002, petitioners provided consent for the administration of the Woodcock-Johnson III (WJ-III) test (Dist. Ex. 59).  By letter dated July 18, 2002 to respondent's special education office, the student's father “demanded” that an IEP based upon the June 2002 CSE meeting be developed and sent to him “immediately” (Dist. Ex. 63).  On July 23 2002, the student's father sent a similar letter to respondent's director of special education requesting that an IEP based upon the July 2002 CSE meeting be developed immediately and indicated that he would pick it up on July 29, 2002 (Parent Ex. 83).  On July 31, 2002, respondent's CSE sent its recommendation for continuation of services to petitioners enclosing the student's IEP (Dist. Ex. 64).  Also on July 31, 2002, the WJ-III was administered to the student (Dist. Ex. 65), and the results were sent to petitioners and to the private neuropsychologist on August 9, 2002 (Dist. Exs. 65, 66).

            On August 15, 2002, petitioners requested an impartial hearing asserting that respondent was unable to recommend a small, supportive, appropriate setting with a strong academic component for their son in a timely manner (Dist. Ex. 70).  They indicated that they would be placing their son at Oakwood for the 2002-03 school year.

            The private neuropsychologist completed an evaluation of the student on August 31, 2002 (Parent Ex. 102) and shared her report with petitioners in October 2002 (Tr. pp. 544-45).  She found that the student demonstrated general intellectual ability in the very superior range.  She also found evidence of social anxiety, inflexibility, poor social perception and depressed mood.  The neuropsychologist noted a "striking decline in [the student's] effort motivation and academic performance beginning in the seventh grade and worsening, culminating in the need for psychiatric treatment and home tutoring in tenth and eleventh grade."  She indicated that history and findings were consistent with temperament issues, specifically emotional sensitivity and intensity, sensory sensitivity, anxiety, inflexibility, impaired social perception and social anxiety, "consistent with Asperger's syndrome, a mild autistic spectrum disorder, in the context of very superior intellectual capacity."  She recommended an alternative academic placement, with small classes and an individualized approach, instruction at a high level of conceptual complexity and protection from bullying and ostracizing by peers.  She further recommended that the student should be with children with a similar level of intellectual capacity where discussion-based learning was common and group participation encouraged.  In addition, she recommended extended time for classroom and standardized tests, preferential seating, help with planning and organization of research assignments and individual instruction as needed to fill gaps in the student's knowledge base and skills resulting form his mood problems and absences.  Supportive and insight oriented psychotherapy and group therapy for social skills development also were recommended.

            The student began attending Oakwood in September 2002 (Tr. p. 595).  The impartial hearing began on September 17, 2002 and continued on September 25, 2002.

            In an October 5, 2002 letter to petitioners' attorney, the therapist who had been treating the student since 1996 described the student's history including his perception that the public school environment was hostile and violent (Parent Ex. 117).  She indicated that after the student's visit to Karafin in March 2002, he told her that he did not want to go there.  The therapist explained that the student felt threatened by the environment at Karafin.  The therapist also indicated that after visiting Oakwood, the student expressed an interest in attending.  She opined that Oakwood was an excellent setting for the student and that his initial adjustment was quite positive.  She noted that "the fact that [he] was able to function in this academic setting, despite his phobic and depressive symptoms, which at times reached an almost vegetative state is quite remarkable."  She indicated that the fact that the student perceived the environment at Oakwood as nonthreatening was vitally important to his success.  The therapist explained that the student displays inflexibility in his thought process and that it was unlikely that anyone could change his mind once he had formed an opinion about something.  She opined that the student would function best in a traditional academic setting where he feels safe in coordination with the therapy he is currently receiving. 

            The impartial hearing resumed on October 22 and 25, 2002.  In a letter dated November 10, 2002, the student's treating psychiatrist indicated that he had been treating the student professionally since March 1998 for depression and more recently for social anxiety (Parent Ex. 118).  He opined that Karafin only met the criterion of the low student to teacher ratio and would not meet the student's academic and emotional needs.  He indicated that the student was fearful of the population at Karafin which was "detrimental to his social anxiety fear and for hopes of reintegrating him into a 'regular' school setting as opposed to home-schooling which only reinforces his 'escape' out of school."  He further indicated that Oakwood promotes a nonviolent, acceptance of individuality and differences concept which ultimately makes the student feel "safe."  He noted that "feeling safe allows [the student] to be enthused about attending his classes and accomplishing school work."

            At the end of the fall term at Oakwood, the student received final grades of B in Chemistry, B in Writing for College, C in Pre-Calculus, B in Political Philosophy, B+ in English, B in Ethics and C- in Spanish (Parent Ex. 109).

            The impartial hearing continued on November 12, 2002 and concluded on March 25, 2003 after a total of nine days of hearings.  In a decision dated June 19, 2003, but not received by the parties until August 26, 2003, the impartial hearing officer found that the CSE was properly constituted, and that the July 2002 IEP was appropriate and calculated to enable the student to receive educational benefit.  Notwithstanding his finding that the recommended program was appropriate, the impartial hearing officer nevertheless found that petitioners did not meet their burden of demonstrating that Oakwood met their son's special education needs.  He also determined that equities did not support petitioners' claim.  Accordingly, the impartial hearing officer denied petitioners' request for tuition reimbursement, related and other expenses for the 2002-03 school year.

            Petitioners appeal from the impartial hearing officer's decision.  They contend that the July 2002 IEP is inappropriate for several reasons including that the CSE was improperly composed, that the statement of current functioning describing the student's social anxiety, his primary deficit, is inadequate and that the goals and objectives are inadequate, inappropriate and not related to the student's stated needs.  They further contend that Karafin is not an appropriate program for their son.  Petitioners also contend that Oakwood is appropriate and that basic fairness warrants tuition reimbursement.  In addition, petitioners claim that the hearing officer was biased against them and that his decision was not based upon the evidence presented. 

            I will first address petitioners' claim of hearing officer bias.  Petitioners assert that the hearing officer was biased against them because they filed a compliant against him with the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities (VESID) for failing to render a decision within the required time frame and that he did not issue his decision until after the complaint was filed.  The parties did not receive the impartial hearing officer's decision until August 26, 2003.  The record shows that petitioners filed their complaint on July 9, 2003 indicating that they had not yet received the impartial hearing officer's decision (Att'y Affirmation Ex. 2).  After investigating petitioners' complaint, VESID found that the impartial hearing officer mailed his decision to the parties on June 19, 2003 (Att'y Affirmation Ex. 9).  Given VESID's finding, it follows that the impartial hearing officer mailed his decision before petitioners filed their complaint.  Accordingly, the record does not support petitioners' bias claim.  Even if the record supported petitioners' assertion that the hearing officer rendered his decision after they filed their complaint against him, I find no evidence of bias in his findings of fact and conclusions of law.  I have reviewed the text of the hearing officer's decision and am unable to find that his findings are not supported by the record.  Although petitioners disagree with the conclusions reached by the hearing officer, that disagreement does not provide a basis for a finding of bias (Application of a Child Suspected of Having a Disability, Appeal No. 04-059; Application of a Child with a Disability, Appeal No. 96-3; Application of a Child with a Disability, Appeal No. 95-75).

            As noted above, petitioners are seeking tuition reimbursement as a remedy for alleged violations of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487).  The purpose behind the IDEA is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]).²  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]).  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 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]).

             Petitioners claim that the 2002-03 IEP is not appropriate because none of the student's current teachers participated at the CSE meetings during which the 2002-03 IEP was formulated.  They argue that the student had been receiving home instruction with two teachers, neither of whom participated in the CSE meetings.  However, petitioners do not allege a loss of educational opportunity or an infringement of their right to participate in the formulation of the IEP as a result of the home instruction teachers not being present at the CSE meetings.

             The IDEA and its implementing regulations require that the CSE include "at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment)" (20 U.S.C. § 1414[d][1][B][ii]; see 34 C.F.R. § 300.344[a][2]; 8 NYCRR 200.3[a][1][ii]).  The regular education teacher member "shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate behavioral interventions and strategies and the determination of supplementary aids and services, program modifications, and support for school personnel" (20 U.S.C. § 1414[d][3][C]; see 34 C.F.R. § 300.346[d]; 8 NYCRR 200.3[d]).  The regular education teacher must also "participate in discussions and decisions about how to modify the general curriculum in the regular classroom to ensure the child's involvement and progress in the general curriculum and participation in the regular education environment" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 24), and participate in any review and revision of the IEP (20 U.S.C. § 1414[d][4][B]; 34 C.F.R. § 300.346[d]; 8 NYCRR 200.3[d]).  In its official interpretation of the regulations, the U.S. Department of Education explains that the regular education teacher member "should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 26).

             The record shows that the CSE met in June 2002 to begin to formulate the student's 2002-03 IEP (Dist. Ex. 71 at p. 3; Dist. Ex. 75 at p. 2; Parent Ex. 94).  The student's regular education math teacher attended the meeting (Dist. Exs. 71, 75).  The CSE discussed the student's progress in school and his upcoming final exams (Dist. Ex. 71).  The CSE also noted petitioners dissatisfaction with the schools they had visited, agreed to a brief further review of other possible programs and agreed to reconvene to finalize the student's program (Dist. Ex. 75). 

             The CSE, which included a regular education teacher member, reconvened in July 2002 to complete the student's annual review and finalize his program for the 2002-03 school year (Dist. Ex. 5 at p. 3).  The IEP developed as a result of the June and July 2002 CSE meetings contains a statement identifying how the student's disability affects his progress in the general education curriculum by highlighting his depression and organizational skill deficits as impediments (Dist. Ex. 5 at p. 1).  In addition, the IEP identifies his anxiety as impeding the learning process (Dist. Ex. 5 at p. 2).  The IEP also reflects that a regular classroom setting with a variety of supplemental supports was considered, but that the CSE determined more intensive services were required (id.).  The CSE indicated that it was considering Karafin, a special day school, as a recommended placement because it met the key criteria for the student's special education needs.  A regular education teacher of the student was a member of the CSE in June 2002 when it first met to develop the student's IEP for the 2002-03 school year.  After considering placement in the regular education environment, when the IEP was finalized in July 2002, the CSE determined that the student required placement is a special day school.  Under the circumstances presented here, I find that a regular education teacher of the student was a member of the CSE that formulated the student's 2002-03 IEP (see 34 C.F.R. § 300.344[a][2]; 8 NYCRR 200.3[a][1][ii]; see IEP Team, 64 Fed. Reg. 12582 at 12583 [March 12, 1999]).

            Federal and state regulations also require that the CSE include at least one special education teacher of the child (34 C.F.R. § 300.344[a][3]; 8 NYCRR 200.3[a][1][iii]).  The special education teacher who is a member of the IEP team should be the person who is, or will be, responsible for implementing the IEP (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 26).  The record shows that for 11th grade, the student was assigned to a resource room, and that resource room teacher served as the special education teacher member of the July 2002 CSE (Dist. Exs. 5, 11).  The record further shows that the resource room teacher taught the student at the beginning of the school year, and that when was he was receiving home instruction, the resource room teacher provided his work, checked his work and graded his work (Tr. p. 311).  Under the circumstances, I find that a special education teacher of the student participated at the July 2002 CSE meeting.

            Petitioners further claim that the July 2002 CSE was improperly composed because no one from Karafin participated in the meeting.  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][4][i][a]; see 34 C.F.R. § 300.349[a][2]).  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 (8 NYCRR 200.4[d][4][i][a]).

            No representative from Karafin attended the July 2002 CSE meeting.  However, based upon the information before me, I am unable to find that petitioners were not provided with an opportunity to explore Karafin with one of its representatives (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y 2005].  The record shows that petitioners and their son visited Karafin on March 1, 2002 (Tr. p. 777).  While at Karafin, they visited some classes, met with the associate director of the school and discussed the subjects that Karafin offered and how instruction was provided and had the opportunity to ask questions (Tr. pp. 370, 779-80).  In addition, respondent's director of special education, who also served as CSE Chairperson at the July 2002 CSE meeting, testified about her familiarity with Karafin  (Tr. pp. 197-99).  She indicated that students from the district have been placed there and that she has visited Karafin several times over the years.  She stated that Karafin works with the district to provide its students with the types of programs and academic subjects they need.  She described the program at Karafin, including the number of students enrolled in Chemistry (id.).  Moreover, the record shows that Karafin was first discussed at the December 2001 CSE meeting and that the CSE met with petitioners in attendance in February, June and July 2002 to discuss possible programs for their son.  Under the circumstances, I am unable to find that the failure to have a representative from Karafin at the July CSE meeting infringed upon petitioners' participation in the creation or formulation of their son's IEP.  I note that based upon information they learned about Karafin during their visit, petitioners determined that Karafin was not appropriate for their son (Dist. Ex. 50).  I also note that at the July meeting, the CSE indicated that Karafin would be the recommended program, that it would explore the Science options at Karafin, and indicated that it would reconvene after educational testing was completed (Dist. Ex. 5).  However, on July 23 2002, before the educational testing had been conducted, the student's father sent a letter to respondent's director of special education requesting that an IEP based upon the July CSE meeting be developed immediately and indicating that he would be pick it up on July 29, 2002 (Parent Ex. 83).

            As noted above, petitioners raise several challenges to the July 2002 IEP.  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). 

            Petitioners argue that the "statement of current functioning in the area of primary deficit, social anxiety, is inadequate."  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 also8 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).

            In developing the student's IEP for the 2002-03 school year, the CSE based its recommendations on a number of evaluations including the CSC evaluation obtained by petitioners and information from the student's treating psychiatrist, all of which were consistent in describing the student's social anxiety.  The CSC evaluation report, which included a mental status examination, indicated that the student's school refusal coupled with his numerous concerns about running into peers in the school and social withdrawal is suggestive of social anxiety (Dist. Ex. 10).  The student's treating psychiatrist indicated that the student has social anxiety, required further home instruction until an appropriate setting was located to continue his studies and recommended a low student to teacher ratio with a strong academic curriculum (Dist. Exs. 29, 32).  The July 2002 IEP makes numerous references to the student's anxiety (Dist. Ex. 5).  For example, under educational achievement, the IEP provides that anxiety and severe depression have impacted the student's ability to attend school and complete his work.  Under social development, the IEP indicates that reports regarding the student's social and emotional levels indicated anxiety and depression which affects the student's ability to attend school and to socialize comfortably with others.  Under physical development, there is a reference to the student's anxiety, and under management needs, the IEP includes a reference to the student's significant emotional needs requiring a low student to teacher ratio, counseling and emotional support from his teachers.  In addition, the rationale section of the IEP indicates that there is consensus that the student reported being overwhelmed in a large high school setting.  Given the nature of the student's disability, the CSE used appropriate assessment techniques to determine the student's present levels of performance.  Based upon the information before me, I am unable to find that the July 2002 IEP is deficient in its description of the student's social anxiety.

            Petitioner also claims that the goals and objectives are inadequate, inappropriate and "not related to stated needs."  Specifically, petitioners claim that none of the goals on the student's IEP are directed at social anxiety, group participation and social skills.  Contrary to petitioners' assertions, the July 2002 IEP does include goals and objectives to address the student's social anxiety.  The IEP provides that the student's social anxiety impacted his ability to attend school and complete his work.  It includes goals to address the student's social/emotional/behavioral needs.  A supporting objective addresses the student's need to identify feelings or fears that interfere with the ability to attend school.  Another supporting objective addresses the student's need to seek out appropriate people and ask for help when under stress.  I note that this objective is consistent with the recommendation in the CSC evaluation for a "point person."  To address the impact of the student's social anxiety on his ability to complete work, the IEP includes a goal for study skills with corresponding objectives to assist the student to manage time effectively in order to complete assignments. 

            With respect to petitioners' claim that the IEP does not include goals directed at group participation and social skills development, I note that group participation and social skills development were recommendations included in the private neuropsychological report which was not before the CSE when it met in July 2002 as the evaluation was not completed until August 2002, and the report was not shared with petitioners until October 2002 (Tr. pp. 544-45).  While the CSC evaluation included a recommendation for consideration of a group intervention working on social anxiety to aid the student with social functioning, the director of clinical services at the CSC elaborated on that recommendation at the February 2002 CSE meeting indicating that to some extent concerns surrounding group interactions would be negotiated during the school day.  He indicated that he would like to see the student participate in a more formal group outside of school and cautioned that if the group did not have the right mix of "kids, ages and issues," the intervention would not be effective.

            Petitioners further claim that "[s]tudy skills goals are not supported by stated needs on the IEP."  Again, contrary to petitioners' claims, the July 2002 IEP notes that the student struggles with depression and becomes overwhelmed with academic work, and that deficits in the area of organizational skills affect his progress in the regular education curriculum.  Further, as noted above, the IEP provides that the student's social anxiety impacted his ability to complete his work.  The IEP also notes that the student failed the English and Physics Regents exams, and needed assistance in preparing to retake the Physics exam.

            Petitioners also claim that Karafin is not appropriate because it does not address their son's need for discussion-based learning and group participation, and for instruction at a high level of conceptual complexity in a nurturing environment that is vigilant in protecting its students from ostracizing and bullying.  The impartial hearing officer found that Karafin was an appropriate placement.  I agree.

            The record shows that the student needs a small, supportive setting with classes that have a low student to teacher ratio offering a good academic curriculum.  The director of Karafin testified that Karafin is a small school with an enrollment of approximately 80 students and a staff of 40, including 17 full-time teachers (Tr. pp. 370-71).  Karafin also has on staff a full-time social worker and psychologist (Tr. pp. 370, 385).  The school serves students ages 12 through 21 in grades 8 through 12 who have learning and emotional disabilities, and who have above average cognitive abilities, with IQ scores ranging from 110 to 160 (Dist. Ex. 77; Tr. pp. 371, 374, 409). Students are grouped by ability, and classes conform to state mandates for grouping students within a three-year range of Reading and Math abilities (Tr. pp. 375).   The director of Karafin further testified that the students in grades 9 through 12 always aim toward a Regents diploma and that 90 percent of the students attend college after they graduate from Karafin (Tr. p. 374).  He indicated that individualized instruction based upon each student’s IEP is provided in classes with a student to staff ratio of 6:1+1 (Tr.  p. 383).  He further indicated that management needs are addressed on an individual basis (Tr. p. 385).  He explained that the individual teacher, social worker and psychologist work out a management plan for the student within the classroom because different behaviors may emerge depending on the student's skill, ability and experience level (id.). 

            The director of Karafin testified that Karafin meets the description of what the student needs in that it is a small, therapeutic, supportive program with a good academic program (Tr. p. 387).  The director of Karafin noted that the student was "at a crucial stage in his academic development" and that Karafin staff would consult with the guidance department of the student's home school district to ensure that graduation requirements for that district would be met (Tr. p. 389).    He explained how the student's IEP would be implemented at Karafin, including that counseling with either a psychologist, a social worker, or a combination of both psychologist and social worker would be part of the student's weekly program (Tr. p. 390) He opined that Karafin would have been an appropriate program for the student (Tr. p. 394).

            Karafin offers individualized instruction in a small, supportive setting and would ease the student into the structure of school without overwhelming him.  Based upon the information before me, I find that the program recommended by respondent's CSE for the student for the 2002-03 school year offered special education and related services designed to meet the student's unique needs.  Accordingly, I find that respondent met its burden of demonstrating that the recommended program, at the time it was formulated, was reasonably calculated to confer educational benefits and likely to produce progress  (see Antonaccio v. Bd. of Educ., 281 F. Supp. 2d 710, 724-25 [S.D.N.Y. 2003]).

            I note that petitioners rely on the neuropsychological evaluation that was completed in August 2002 to identify their son's need for discussion-based learning and group participation, and to support their claim that Karafin is not appropriate.  However, that information was not available when the CSE met in July 2002 to develop the student's program for the 2002-03 school year.  I further note that while petitioners do not specifically claim that Karafin was inappropriate because their son felt threatened by the environment at Karafin, the experts who testified on petitioners' behalf relied on the student's concerns about Karafin to support their recommendation that Karafin was not appropriate.  Despite the fact that the student visited Karafin in March 2002, his concerns about Karafin were not shared with the CSE when it met in July 2002.  In fact, the student's therapist's letter explaining why Karafin was not an appropriate placement is dated October 5, 2002 (Parent Ex. 117) and his psychiatrist's letter is dated November 10, 2002 (Parent Ex. 118).

            Having determined that respondent has met its burden of proving that it offered to provide a FAPE to the student during the 2002-03 school year, the necessary inquiry is at an end and there is no need to reach the issue of whether Karafin was an appropriate placement (M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134; Application of a Child with a Disability, Appeal No. 03-058).

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

THE APPEAL IS DISMISSED.