05-093

            Petitioner appeals from the decision of an impartial hearing officer which determined that the educational program recommended by respondent’s Committee on Special Education (CSE) for his son for the 2004-05 school year was appropriate.  The appeal must be dismissed.

           At the time of the impartial hearing, which began on May 16, 2005, petitioner’s son was 13 years old and attending the Melmark School (Melmark) (Tr. pp. 13-14).  Melmark is a private residential school in Pennsylvania, which has 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 as a student with autism is not in dispute in this appeal  (see 8 NYCRR 200.1[zz][1]). 

            The student was diagnosed with autism as a young child and since that time has exhibited intensive management needs (Tr. p. 182; Dist. Ex. 2 at p. 1).  His early educational services were provided in the form of home based applied behavioral analysis (ABA) (Dist. Ex. 2 at p. 1).  At the beginning of the 2002-03 school year the student attended the Board of Cooperative Educational Services (BOCES) BEARS program, a 12:1+4 specialized classroom for students with autism where it was recommended he receive the services of a 1:1 aide, occupational therapy, speech-language therapy, speech consultation, assistive technology services and a bus monitor (Tr. pp. 140-41; Dist. Ex. 13 at pp. 1, 2).  In October 2002 respondent was asked by BOCES BEARS to reconsider the student’s placement due to episodes of aggression directed at staff and other students (Tr. pp. 98-99, 140-42). 

           After the student was removed from the BOCES BEARS program, respondent's CSE met and placed the student on what was to be an interim plan of home instruction with the goal of returning him to the BOCES BEARS program (Tr. p. 142).  In November 2002 an in-home assessment of the student was conducted by a special education teacher and consultant from the Wildwood Institute (Wildwood) (Tr. pp. 84-85; Dist. Ex. 43). Subsequently, respondent contracted with Wildwood to provide primarily behavior management and "living skills" training to the student's family and staff who worked with him (Tr. pp. 87-90; Dist. Exs. 32, 38, 43). The student also received four hours of service daily through the Association for Retarded Citizens (ARC), provided by staff supervised by Wildwood (Tr. pp. 91-92, 167).

            The CSE convened in January 2003 and changed the student's program to home instruction when it became apparent that he would not return to the BOCES BEARS program (Tr. p. 143). Home-based services provided at this time focused on improving the student's behavior in order to return him to a school environment (Tr. pp. 87, 90). Wildwood's service provision to the student included introduction of academic activities and occasional visits to a classroom in respondent's school (Tr. pp. 87-88, 146).  At a May 2003 meeting the CSE recommended that in fall 2003, the student be placed in a 12:1:1+3 BOCES classroom with a 1:1 aide and be provided with a bus monitor, as well as continued behavioral consultation support provided by Wildwood staff (Dist. Ex. 52 at p. 6).  In addition, the individualized education program (IEP) recommended related service evaluations of the student to be conducted once he became comfortable in his new classroom (Tr. p. 157; Dist. Ex. 52 at p. 6).  During summer 2003, Wildwood staff practiced transporting the student to the proposed school placement, and they accompanied him to the new school on his first day (Tr. pp. 95-96, 99).  Due to episodes of aggression, the student was not able to transition successfully to the recommended BOCES program and after four days was asked by BOCES to stay home (Tr. pp. 99, 246; Dist. Ex. 58).

            On September 9, 2003, the CSE convened, recommended that the student be placed in a residential program and that he receive home instruction until an appropriate residential facility could be found (Tr. p. 149; Dist. Exs. 57, 61 at pp. 1, 6).  The one annual goal in the September 9, 2003 IEP related to parent counseling and training to be provided in the home, but no annual goals or objectives were established for the student (Dist. Ex. 61 at p. 10).  During the 2003-04 school year the student's home instruction was provided by noncertified staff hired by respondent.  Wildwood continued to assist with the student's behavioral program, and to develop academic instruction as well as provide training to staff and to the student's father (Tr. pp. 124-26).  Services consisted of four hours per day Monday through Thursday, with an additional four hours of service provided daily by ARC (Tr. pp. 34, 167-68, 238). Wildwood staff consulted with respondent's service providers on an "as-needed basis" during this time (Tr. p. 106).  During fall 2003 and winter 2004 respondent contacted numerous in state and out of state residential facilities in an attempt to secure a residential placement for the student (Tr. pp. 161-62; Dist. Ex. 65).

            By letter dated May 14, 2004 the student was accepted to Melmark, a private residential school in Pennsylvania (Dist. Ex. 78). The CSE convened on June 14, 2004 and recommended a change from home instruction to residential placement (Tr. pp. 184-85).   However, an IEP was not developed at that meeting (Tr. pp. 184-86).  The student began attending Melmark on June 28, 2004, and during the summer Melmark conducted academic and residential evaluations (Tr. p. 165; Dist. Exs. 89, 90).  The student's IEP team reconvened on August 12, 2004, and developed an IEP that offered full-time placement in an autistic support classroom with a 1:1 aide during school hours (Dist. Ex. 91 at pp. 7, 8).  Program modifications and specially designed instruction included use of a visual schedule, teacher created materials, flash cards, adaptive scissors and a word communication book (id.).  Related services included speech therapy consultation on an as-needed basis in the classroom, 24 hour per day/seven day per week nursing service availability and physician services on an as-needed basis (Dist. Ex. 91 at p. 7).  The IEP included goals and objectives in the areas of self-care, fine and gross motor skills, language, basic learning, pre-vocational skills, and community, domestic, leisure/recreation, social, behavior and academic skills (Dist. Ex. 91 at pp. 3-6). 

            A progress report from Melmark dated October 2004 indicated that the student's team had implemented the IEP goals and objectives at a "slow and steady pace" in order to minimize the probability of the student exhibiting maladaptive behaviors (Dist. Ex. 93 at p. 2).  The team reported that it was introducing an average of three to five goals per week, and that the student was "progressing nicely" (id.).  By progress report dated January 2005, the team indicated that the student had demonstrated progress in all goals and objectives that had been introduced, with a "significant decrease" in incidents of property damage and aggression since the first quarter of the school year (Dist. Ex. 94).

            By letter dated March 7, 2005, petitioner requested an impartial hearing (Dist. Ex. 1) to address issues regarding the program, placement and evaluation of the student for the school years from 2001 through 2005.  Petitioner contended that the student had not been provided a free appropriate public education (FAPE) in the least restrictive environment (LRE). 

            In an interim decision dated May 13, 2005, the impartial hearing officer determined that petitioner’s claims for the 2001-02, 2002-03 and 2003-04 school years except for claims for compensatory services that arose after March 7, 2004 were barred by a one year statute of limitations time period (Dist. Ex. 107 at pp. 29-33; IHO Decision, pp. 11).  On June 17, petitioner moved to reopen the hearing to receive testimony regarding an affidavit the student’s mother had submitted in support of respondent’s motion to dismiss, which petitioner contended contained false statements (IHO Ex. 2).   On June 28, 2005, the impartial hearing officer denied petitioner’s motion to reopen the hearing, finding that petitioner failed to make a prima facie case, and that the motion was untimely and not relevant (IHO Ex. 4). 

             The impartial hearing was held on May 16 and May 17, 2005.  In a decision dated August 1, 2005, the impartial hearing officer determined that:  the IEP developed on September 9, 2003 did not offer appropriate instruction between March and June 2004; respondent did not conduct a triennial evaluation of the student; a functional behavioral assessment (FBA) was not conducted; an IEP had not been developed to address the student’s needs at the June 14, 2004 CSE meeting which recommended placing the student in a residential school; an interim IEP was not developed by respondent when the student entered Melmark; and the program provided pursuant to the August 12, 2004 IEP, was not appropriate (IHO Decision, pp. 17-26).

            The impartial hearing officer ordered respondent’s CSE to arrange for an appropriate triennial evaluation, including evaluations in speech therapy, physical therapy and occupational therapy, and ordered that an FBA be completed within 45 days of the impartial hearing officer’s decision.  He further ordered the CSE to develop an appropriate IEP for the student; that the CSE consider whether the student needed additional services to make up those he did not receive between March 7, 2004 to June 28, 2005 and that if the CSE found the student did need such services, that it recommend additional services as may be meaningful and compatible with his current placement (IHO Decision, pp. 26-27).

              Petitioner asserts he is aggrieved by the impartial hearing officer’s decision which determined, inter alia, the following:  that there is a one year statute of limitations regarding petitioner’s claims and that he did not find that the student was denied appropriate special education services during the 2001-02, 2002-03, and 2003-04 school years; failed to determine the student had been denied a FAPE during the entire period of time addressed by the hearing; failed to find that the goals and objectives in the 2004-05 IEP were inappropriate; failed to order respondent to develop a plan and timeframe for the student’s return to the district from the residential setting; and failed to find that respondent had not met its burden of proving the 2004-05 program was appropriate.  Petitioner further asserts that the impartial hearing officer erred in relying on petitioner’s comments regarding the student’s progress at Melmark in concluding that the student was progressing appropriately, and erred in concluding that procedural violations did not contribute to the denial of a FAPE.  Petitioner requests that the orders of the impartial hearing officer be upheld and, inter alia, that the decision of the impartial hearing officer be annulled to the extent that it did not determine that the student had been denied a FAPE from March 7, 2004 to July 1, 2005. 

               The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]).¹  A FAPE includes 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]).²  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]; Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D. K., 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002]).  As for the program itself, the Second Circuit has observed that '"for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]; see Walczak, 142 F.3d at 130).  This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

                An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]).  School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).                                        

               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]; see 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]; see 8 NYCRR 200.4[d][2][iv][a]).                         

              An IEP must also 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]; see 8 NYCRR 200.4[d][2][iii]).  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][x]).

              Based upon my review of the entire hearing record, I find that the hearing was conducted in a manner consistent with the requirements of due process and that there is no need to modify the determinations of the hearing officer (34 C.F.R. § 300.510[b][2]; N.Y. Educ. Law § 4404[2]).  The decision below is thorough and well reasoned, and I adopt the findings of fact and determinations of the impartial hearing officer.

            The impartial hearing officer found that the IEP dated September 9, 2003 which was implemented during the relevant time frame of March 7, 2004 to June 28, 2004 fell "woefully short" of an appropriate program.  He further found that the IEP did not reflect the results of evaluations to identify the student’s needs, establish annual goals and objectives, and provide for the use of appropriate special education services.   I concur with his finding that the student was not offered and did not receive appropriate special education services during that timeframe.  The impartial hearing officer ordered the CSE to consider whether the student needs additional services to make up for the services he did not receive between March 7, 2004 and June 28, 2004.  In his decision the impartial hearing officer also determined that respondent did not conduct a triennial evaluation of the student in accordance with 8 NYCRR 200.4(b)(4), or an FBA, though these evaluations were necessary in order to develop an appropriate IEP.  The impartial hearing officer ordered the CSE to conduct speech-language, occupational and physical therapy evaluations, and an FBA of the student.  I concur with the impartial hearing officer's direction to the CSE to conduct a triennial evaluation, and speech-language, occupational and physical therapy evaluations, as well as an FBA (IHO Decision, pp. 26-27).

          For the 2004-05 school year, the impartial hearing officer further determined that respondent's CSE committed a number of violations including:  failing to formulate an IEP following the June 14, 2004 CSE meeting which changed the student's placement from home instruction to a residential placement, and formulating an August 12, 2004 IEP that lacked specificity regarding the frequency, location and duration of related services and that lacked recommended services for students with autism pursuant to 8 NYCRR 200.13.  However, he did find that the objectives contained on the August 12, 2004 IEP were specific enough to give guidance to the student's teachers and further found that the student's program at Melmark was not inappropriate (IHO Decision, p. 26).  The impartial hearing officer directed the CSE to develop an appropriate IEP "correcting the deficiencies" that he identified.  Petitioner does not seek specific relief regarding his claim of denial of a FAPE for the June 28, 2004 through July 1, 2005 timeframe, nor does petitioner dispute the impartial hearing officer's order that the CSE correct deficiencies identified and develop an appropriate IEP.  Although the impartial hearing officer did not explicitly find that the student was denied a FAPE, I find no reason to disturb the findings of the impartial hearing officer and I find that petitioner was not aggrieved by the impartial hearing officer’s decision.

          "[T]he administrative appeal process is available only to a party which is 'aggrieved' by an IHO's determination" (Cosgrove v. Bd. of Educ., 175 F. Supp.2d 375, 385 [N.D.N.Y. 2001]).  Only a party aggrieved by a hearing officer's decision may appeal to a State Review Officer (34 C.F.R. § 300.510[b][1]; 8 NYCRR 200.5[j]; Application of a Child with a Disability, Appeal No. 02-007; Application of a Child with a Disability, 99-029).  Further, the State Review Officer is not required to determine issues which are no longer in controversy or to review matters which would have no actual effect on the parties (Application of a Child with a Disability, Appeal No. 02-011; Application of a Child with a Disability, Appeal No. 98-73; Application of a Child Suspected of Having a Disability, Appeal No. 95-60).  

         Petitioner does not, on appeal, seek modification of the order that the CSE consider additional educational services for his son, or dispute the order for triennial evaluations, speech-language, occupational and physical therapy evaluations, an FBA and development of an appropriate IEP. These orders are not adverse to his son's interests. I decline to address these matters further after having found that petitioner is not aggrieved by the impartial hearing officer's determinations on these issues  (Application of a Child with a Disability, Appeal No. 02-086).

          I also agree with the impartial hearing officer’s determination that petitioner’s claims relative to the 2001-02 and 2002-03 school year claims relating to the 2003-04 school year, prior to March 7, 2004 are time-barred by application of a one year statute of limitation time period for requesting an impartial hearing (see Application of a Child with a Disability, Appeal No. 02-119).

            I have considered petitioner’s remaining contentions and I find them to be without merit.

THE APPEAL IS DISMISSED.