Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Michelle Kule-Korgood, Esq., attorney for petitioners
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Duncan Peterson, Esq., of counsel
Petitioners appeal from the portion of a decision of an impartial hearing officer which determined that the educational services respondent's Committee on Special Education (CSE) had recommended for their daughter for March 2005 through March 2006 were appropriate. The appeal must be dismissed.
At the time of the hearing, the child was seven and one-half years old, attended a general education, second grade class at Yeshiva of Flatbush (Flatbush) at the parents' expense and was classified as a child with autism (Tr. p. 25; Dist. Ex. 1 at p. 1). The child's classification is not in dispute. Class placement is also not in dispute, as the parents are not seeking tuition reimbursement for their child's tuition at Flatbush (Tr. p. 236), a private religious school in the child's community that the child began attending in September 2003 (Tr. p. 834).
The record indicates that the child has made significant academic and social progress over the past few years in school (Dist. Ex. 4 at p. 10; Tr. pp. 25-26, 415, 423) and functions intellectually within the high average range (Dist. Ex. 4 at p. 9). The neuropsychological evaluation report indicates that the child demonstrates a relative area of weakness, in the average range, on tasks that assessed her visual organization and perception (Dist. Ex. 4 at p. 3). Delays are noted in visuospatial constructional skills and in short- and long-term visual memory skills (Dist. Ex. 4 at p. 10).
Academically, results of achievement testing reveal that the child functions at or above grade level in all academic areas, including reading comprehension, spelling, numerical operations, math reasoning, perceptual memory, and processing skills (Dist. Ex. 4 at p. 8). She is described by the CSE representative as an avid reader (Tr. p. 26), and, as indicated in the neuropsychological evaluation report, if given a choice, the child will choose reading over any other activity (Dist. Ex. 4 at p.10). Primary difficulties for the child include her need to become more socially appropriate when interacting with peers, as well as her ability to engage in social reciprocity, communication pragmatics, executive functions, and attention (Dist. Ex. 4 at p. 10). The record consistently indicates that the child requires and is responsive to redirection and refocusing in the academic and social arenas, as well as for continued progress with her pragmatic language skills and motor skills (Tr. p. 26).
Results of speech and language testing indicate that the child is highly verbal, with receptive and expressive language skills in the average range (Dist. Ex. 3). She has some articulation and intelligibility problems, as well as a tendency to speak either softly or loudly (Dist. Ex. 3 at p. 3). The child is described in reports as not fully toilet trained (Dist. Ex. 10 at p. 1; Parent Ex. J at p. 2). The child has kidney reflux (Dist. Ex. 9) and a history of mild seizures at night (Dist. Ex. 10 at p. 2; Tr. p. 742). She receives no medication (Dist. Ex. 10 at p. 2, Parent Ex. Q at p. 4). She wears glasses to correct a "lazy eye" (Dist. Ex. 3 at p. 2). Behaviorally, the record indicates that the child may still display tantrums, that she licks inappropriate items such as the carpet or metal, that she plays with things inappropriately (Dist. Ex. 10 at p. 2; Tr. pp. 388, 393, 798), and that she needs to be brought back to the task at hand, as she gets lost in her own thoughts and in finger play (Tr. p. 405).
The child was diagnosed with Pervasive Developmental Disorder (PDD) by a pediatric neurologist in January 2000 (Dist. Ex. 23) when she was two years old. At the time of the diagnosis, the neurologist recommended applied behavioral analysis (ABA) (Dist. Ex. 23; Tr. p. 744), which the child initially received for ten hours per week at home (Tr. p. 745), and which was subsequently increased to at least 30 hours per week (Tr. pp. 747-48). The child also received ABA speech therapy, occupational therapy and physical therapy (Tr. pp. 746, 748).
During the 2000-01 school year, when the child was three years old, the Committee on Preschool Special Education (CPSE) recommended 25-27 hours per week of special education itinerant teacher (SEIT) services, five hours per week of speech therapy, as well as occupational therapy and physical therapy (Tr. p. 750). After six months, petitioners enrolled the child in a half-day private parochial preschool program (Dist. Ex. 27 at p. 1), where she was accompanied by a SEIT (Tr. p. 751). The CPSE increased the SEIT services to 32 hours per week and continued all other related services on a 12-month basis due to petitioners' description of the child's history of regression, specifically in not remembering her own name (Tr. pp. 751-52).
In preparation for the child's transition from CPSE to the CSE for kindergarten for the 2002-03 school year, the CSE classified her as a child with an emotional disturbance (ED), and recommended that she be placed in a collaborative team teaching class at a location not specified in the record (Tr. pp. 757-60). It was also recommended that speech and language therapy be decreased and that the program change from a 12-month program to a 10-month program (Tr. pp. 758-60). Petitioners requested an impartial hearing to challenge the recommendations; resulting in the child continuing to receive the services she had received in preschool during 2001-02, for the 2002-03 school year when she was in kindergarten (Tr. pp. 759-60).
For the 2003-04 school year, when the child was in first grade, the CSE recommended that the child's classification be changed to a child with autism, but continued to recommend that she be placed in a collaborative team teaching class, that speech and language therapy be decreased, and that services be provided 10 months a year (Tr. p. 762). Petitioners requested another impartial hearing, which resulted in a stipulated settlement with respondent (Dist. Ex. 14; Parent Ex. B) that allowed the child to continue to receive the services that had been provided to her since preschool, for the 2003-04 school year (Tr. p. 763).
On May 13, 2004, the CSE met to review and make recommendations for the 2004-05 school year when the child would be in second grade (Dist. Ex. 2). In August 2004, the CSE again recommended placement in a collaborative team teaching class (Dist. Ex. 2 at p. 1; Parent Ex. I; Tr. p. 769) at one of respondent's elementary schools (Parent Ex. K at p. 1). Petitioners requested another impartial hearing in September 2004 (Tr. p. 770; Parent Ex. A at p. 1). On September 7, 2004, respondent issued a memorandum that authorized the child to continue to receive services pursuant to the preschool individualized education program (IEP) dated October 2001 for the 2004-05 school year (Parent Ex. B). After the child began second grade at Flatbush in September 2004, the CSE contacted petitioner mother, advising her that evaluations needed to be performed (Parent Ex. O at p. 1; Tr. pp. 770-71, 793). An impartial hearing occurred on November 18, 2004 as a result of the September 2004 hearing request, concluding in an agreement that the child would continue to receive preschool services per the IEP developed on October 24, 2001, and also an agreement concerning the conduct of the evaluations (Parent Ex. B; Dist. Ex. 14 at p. 2; Dist. Ex. 15 at pp. 4-5; Tr. pp. 782-792).
The CSE conducted a social history update (Dist. Ex. 10) and a classroom observation (Dist. Ex. 5) on November 30, 2004, as well as a speech and language evaluation on December 2, 2004 (Dist. Ex. 3), and a neuropsychological evaluation on December 5, 2004 and December 19, 2004 (Dist. Ex. 4).
The social history update conducted by the social worker on November 30, 2004 with the parent as the informant, indicates that the child engages in ritualistic behaviors, including repeated movements, figure-eight walking, and if things are changed, crying to the point of being unable to stop (Dist. Ex. 10 at p. 2). At times she licks inappropriate things such as carpets, clothing, and metal (id.). The parent reported that if the child is not constantly engaged, she is apt to stare at the ceiling for hours at a time (id.). The child requires some help in her activities for daily living skills (ADL skills) (id.).
The one hour and 40 minute classroom observation was also conducted by the social worker on November 30, 2004 (Dist. Ex. 5). The observation report indicates that the SEIT provided the child with refocusing, redirection, and encouragement to develop social skills, but did not provide her with academic instruction during the observation (Dist. Ex. 5 at p. 2). Testimony by the SEIT provider indicates that she provides the child with refocusing and redirection because "a lot of it is just behavioral" (Tr. pp. 586-87). The progress report written by the SEIT in November 2004 indicates that academically, the child is able to complete grade level tasks with assistance only to keep her focused (Parent Ex. J at p. 2). The child was described as being completely capable of learning the material, but this depends on her attention (id.).
Results of formal administration of the Clinical Evaluation of Language Fundamentals 4 (CELF-4) as part of the speech and language evaluation conducted on December 2, 2004 indicated that the child demonstrates average receptive and expressive language skills (Dist. Ex. 3 at p. 3).
Administration of the Wechsler Intelligence Scale for Children–IV (WISC-IV), as part of the December 2004 neuropsychological evaluation, yielded a Full Scale IQ score of 118, which is in the 88th percentile and indicates cognitive ability in the high average range (Dist. Ex. 4 at p. 3). Subtests indicate that the child's word knowledge and abstract reasoning was within the upper limits of the average and high average ranges respectively (id.). Scores indicated functioning to be within the average range for her understanding of social norms and conventions, and for her ability to generate alternative concepts (id.). The child received a composite score of 100 at the 50th percentile on the Verbal Comprehension Index, a series of subtests that measure verbal abilities (id.). The child yielded a composite score of 133 at the 99th percentile, in the very superior range of functioning, on the Perceptual Reasoning Index, a series of subtests on the WISC-IV that measure perceptual reasoning and organization (id.). Very superior functioning was seen on tasks that assessed the child's fluid intelligence and abstract reasoning (id.). A relative weakness in comparison to the child's other skills was noted in tasks that assessed her visual organization and perception, where her performance indicated functioning at the 50th percentile or average range (id.). On the Working Memory Index, the child yielded a composite score of 110 at the 78th percentile, in the high average range, for tasks requiring her to maintain information in conscious awareness, perform some operation with it and produce a result (id.). On the Processing Speed Index, the child yielded a composite score of 106 at the 66th percentile, in the average range (id.). On the task that assessed her visual selective attention and vigilance, the child functioned in the low-average range (id.).
Administration of the Wechsler Individual Achievement Test-II (WIAT-II) revealed the child's performance on the Reading Composite to be at the 86th percentile, the Reading Comprehension Composite to be at the 96th percentile, and the Mathematics Composite to be at the 90th percentile (Dist. Ex. 4 at p. 8). Results on the Spelling subtest revealed the child's performance to be at the 96th percentile, and her performance on the Listening Comprehension subtest to be at the 58th percentile (id.).
The CSE reconvened on February 18, 2005, with petitioner mother, the district representative/psychologist, neuropsychologist, social worker, speech-language pathologist, and CSE-assigned special education teacher in attendance, as well as the child's SEIT and general education teacher from the private school participating over the telephone for the entire meeting (Dist. Ex. 1 at p. 2; Tr. pp. 35, 601, 900). Petitioner mother's testimony reflects that she waited 30 minutes before being called in to meet with the CSE, and that when she did enter the CSE meeting room, it appeared that respondent's psychologist, social worker, and speech and language evaluator were already meeting with the district representative and the educational evaluator in what petitioners call a "pre-conference" (Parent Ex. N, p. 1; Pet. p. 4 ¶ 17; Tr. p. 830). Testimony by petitioner mother reflects that when the CSE meeting was in progress, she was under the impression that the CSE was going to recommend either SEIT services or special education teacher support services (SETSS), and was surprised towards the end of the meeting that the recommendation was for a paraprofessional rather than for a SEIT or SETSS (Tr. pp. 822-24). She testified that "we all felt in agreement" and that she was in agreement with the CSE up until the recommendation was made, with the minor exception that she disagreed with a statement that her daughter loved to write (Tr. pp. 822, 849). Petitioner mother testified that she "was surprised because from everything that everybody was saying it seemed like they really understood her issues . . ." (Tr. p. 823). Petitioner mother's testimony does not indicate that she attempted to raise any issues or initiate any discussion at the CSE meeting after the recommendation was made (Tr. pp. 823-24).
The February 18, 2005 IEP reflects the CSE's recommendation that the child continue to be classified as a child with autism, that she be placed in a general education class with the related services of individual occupational therapy, three times per week for 30 minutes; individual physical therapy two times per week for 30 minutes; speech and language therapy two times per week for 30 minutes on an individual basis, and one time per week for 30 minutes in a group of three-to-one; and counseling one time per week for 30 minutes in a group of three-to-one (Dist. Ex. 1 at p. 17). Although page one of the IEP indicates a recommendation for a one-to-one behavior management paraprofessional for 100 minutes, five times per week, and on another page the recommendation is for a full time one-to-one behavior management paraprofessional (Dist. Ex. 1 at pp. 1, 15), testimony by respondent at the hearing clarified that the CSE was recommending a full-time behavior management paraprofessional for the child, to provide her with redirection and refocusing throughout the school day (Tr. p. 38). Modifications and accommodations include testing to occur in a separate location and for extended time (double) (Dist. Ex. 1 at p. 17). The February 18, 2005 IEP is the IEP at issue in this proceeding and its projected date of initiation was March 14, 2005 so that it would have commenced in the child's second grade year and continued into her third grade year (Dist. Ex. 1 at p. 2).
Petitioners requested an impartial hearing on March 10, 2005 relating to the February 18, 2005 IEP (Parent Ex. A). The impartial hearing commenced on May 16, 2005 and concluded on August 22, 2005 after six days of testimony. At the hearing, petitioners asserted that the February 18, 2005 IEP failed to offer their daughter a free appropriate public education (FAPE). Specifically, petitioners raised concerns regarding predetermination of the IEP, the lack of a functional behavior assessment (FBA) or behavioral intervention plan (BIP), the lack of parent training, the provision on the IEP for a paraprofessional instead of a SEIT, reduced speech therapy, the lack of extended school year (ESY) services and that the IEP did not contain goals relating to toileting, organizational skills, increasing focus or addressing tantruming. Respondent asserted that the IEP developed on February 18, 2005 offered petitioners' daughter a FAPE.
The impartial hearing officer issued a detailed 35-page decision dated September 19, 2005 concluding that respondent offered the child appropriate services (IHO Decision, p. 26), with the exception of the recommendation for speech and language therapy individually two times per week for 30 minutes, and one time per week in a group of three-to-one (IHO Decision, p. 30). The impartial hearing officer concluded that the recommendation for speech and language did not conform to the requirement that "[i]nstructional services shall be provided to meet the individual language needs of a student with autism for a minimum of 30 minutes daily in groups not to exceed two, or 60 minutes daily in groups not to exceed six" (8 NYCRR 200.13[a]). The impartial hearing officer ordered that the speech and language therapy recommendation be remanded to the CSE to amend the IEP in accordance with the above (IHO Decision, p. 31). Neither party is contesting the portion of the decision concerning speech and language therapy.
Petitioners appeal and assert that the impartial hearing officer erred in determining that the child's IEP dated February 18, 2005 was appropriate. They assert that the recommendations made by the CSE were impermissibly predetermined before the CSE meeting occurred, that they inappropriately did not include an FBA or BIP, and inappropriately did not include transition support and parent training. In addition, petitioners claim that the IEP was insufficient because it offered paraprofessional services only, eliminating SEIT services entirely and without transitional services. Further, petitioners claim that the IEP was insufficient for failing to address the child's toilet training, organizational skills, tantruming and attention needs and that the child required extended year services (ESY) due to a history of regression. Petitioners do not seek tuition reimbursement for their unilateral placement of their child at Flatbush, but do seek to continue school-based and home-based SEIT services for the child, with a gradual reduction in SEIT services and a gradual increase in paraprofessional services to be provided via a carefully designed transition plan.
A purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487)1 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]; Schaffer v. Weast, 126 S. Ct. 528 ). 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; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).2
A FAPE is offered to a student when (a) the board of education complied with the procedural requirements set forth in the IDEA, and (b) 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 ). While school districts are required to comply with all IDEA procedures, 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]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, or seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; 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 compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, 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. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998][citation and internal quotation omitted]). To do this, the record must be examined for "any objective evidence indicating whether the child is likely to make progress or regress under the proposed plan" (Grim, 346 F.3d at 383 [citation and internal quotation omitted]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d at 379; Walczak, 142 F.3d at 132; Antonaccio v. Bd. of Educ., 281 F. Supp. 2d 710, 726 [S.D.N.Y. 2003]).
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]; 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, Notice of Interpretation, Question 1). Pursuant to the version of the IDEA in effect at all relevant times herein,1 an IEP was required to 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]; see 8 NYCRR 200.4[d][iii]).
One of petitioners' contentions is that respondent impermissibly held a "preconference" and had predetermined their daughter's services as set forth on the February 18, 2005 IEP. Specifically, petitioners allege that certain CSE members met for half an hour just prior to the February 18, 2005 CSE meeting, and then entered the CSE meeting with a preconceived plan for the child's IEP.
I agree with the impartial hearing officer's finding that the record fails to support petitioners' claims as they relate to predetermination. Conversations about possible recommendations for a child, prior to a CSE meeting, are not prohibited as long as the discussions take place with the understanding that changes may occur at the CSE meeting (see, e.g., Application of a Child with a Disability, Appeal No. 05-076). The impartial hearing officer found that all the members of the CSE that are mandated by law participated in the CSE review of the child. There was adequate opportunity for all participants to express their opinions as to what would be appropriate goals and supports for the child to be successful. Petitioner mother testified that at the CSE meeting that "… it seemed the Board of Ed. was very well organized and they seemed to know a lot of my daughter's issues . . . It (sic) wasn't anything that we disagreed on. The surprise came at the end when they made the recommendation" (Tr. p. 822). Petitioner mother testified that the "surprise" for her at the end of the meeting was that "from everything that everybody was saying it seemed like they really understood her issues, that they were going to offer either a SEIT or SETSS teacher and instead she was offered a para…" and training for the paraprofessional was not separately indicated on the IEP (Tr. p. 823).
The record indicates that some members of the CSE met immediately before the scheduled CSE meeting (Tr. pp. 180-81). However, and as the impartial hearing officer states in her decision, nothing in the record suggests that any aspect of this "preconference" prevented the entire CSE from considering all of the information provided by the parent, classroom teacher, or SEIT at the actual meeting (Tr. pp. 180-82, 198-99, 222-23, 411-12, 493). The record further reflects that although recommendations were discussed in the preconference, all participants concur that it was merely a discussion, not a final recommendation and that any discussed recommendations were subject to change (id.). The record reflects that a full discussion of the child's needs occurred at the CSE meeting, which lasted over an hour and a half (Parent Ex. N), that petitioner mother was in fact happy with respondent's CSE's familiarity and discussion of her daughter's needs and that the services recommendation and goals and objectives reflected those needs and offered petitioners' daughter a FAPE, as set forth in more detail herein. The record establishes that any limited involvement of petitioner mother was a result of her own decision to not answer questions or offer information, by responding that she needed to speak with her attorney and by failing to indicate whether she agreed or disagreed with the recommendations (IHO Decision, p. 26; Tr. pp. 221-22). I concur with the impartial hearing officer that predetermination of the child's services did not occur.
Petitioners also contend that an FBA or BIP should have been prepared for their child. An FBA is warranted for students whose behavior impedes their learning or that of others (20 U.S.C. § 1414[d][B][i]; 8 NYCRR 200.4[b][v]; 8 NYCRR 200.4 [d]). An FBA is
…the process of determining why a student engages in behaviors that impede learning and how the student's behavior relates to the environment. The functional behavioral assessment includes, but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it.
(8 NYCRR 200.1[r]).
In annual IEP reviews, the IDEA as well as state and federal regulations mandate that the CSE "shall…in the case of a child whose behavior impedes his or her learning or that of others, consider, when appropriate, strategies, including positive behavioral interventions, and supports to address that behavior" (20 U.S.C. 1414[d][B][i]; 34 C.F.R. § 300.346[a][i]; see 8 NYCRR 200.4[d][i]). The official commentary to the federal regulations specifies that "a failure to, if appropriate, consider and address these behaviors in developing and implementing the child's IEP would constitute a denial of FAPE to the child" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 38).
The record reflects that the child responds to refocusing and redirection by either the SEIT or the classroom teacher (Tr. pp. 78-81). Respondent's representatives who were familiar with this child each testified that under the circumstances presented with this case, an FBA was not needed (Tr. pp. 66, 88, 141, 279, 300-301, 380, 413-14, 416, 470, 479-80). In addition, when the SEIT left for an earlier than expected maternity leave, prior to having an opportunity to prepare the child for a change in staff, the child responded to the refocusing and redirection provided by other staff who took the SEIT's place in the classroom (Tr. pp. 654-58). The record does not indicate any decline in the child's academic performance, which was at or above grade level. There is no indication that any of the child's ritualistic behaviors that may occur in school are not responsive to refocusing or redirection, or that with refocusing and redirection, the ritualistic behaviors interfere in any way with the performance of either the child herself, or any other child in the class or school. Under the circumstances presented herein, I concur with the IHO and find that neither an FBA nor a BIP was required and the IEP accurately identified the child's special education needs.
Petitioners assert that a provision for parent counseling was improperly lacking. Respondent's answer states that "[p]etitioner's request for parental counseling services is moot as DOE has agreed to provide this service" (Answer, ¶ 123). Petitioner has not submitted a reply (8 NYCRR 279.6). This element of petitioner's appeal is not addressed herein in light of the parties' settlement of this issue.
Petitioners allege that SEIT services should continue to be provided or that a transition plan to transition the child from a SEIT to the recommended behavior management paraprofessional was lacking and is needed. The record indicates that a behavior management paraprofessional is generally assigned to a student on an individual full time basis in order to assist the child with tasks during the day and to refocus the student. In contrast, a SEIT provider is a special education teacher, whose purpose is to provide educational instruction (Tr. pp. 217-18, 345-48). The CSE did not offer the child SEIT services for the school year in question because the CSE considered the fact that the child is a very high functioning autistic child who functions academically at or above grade level in a general education class at Yeshiva of Flatbush, and who has made significant progress (Dist. Ex. 4 at p. 10) in what the CSE representative described as an academically rigorous school (Tr. p. 37). The SEIT was not observed to provide any academic instruction (Tr. pp. 79-80) and the SEIT's own notes reflect that the child only needs refocusing and not academic assistance (Parent Ex. G at p. 1). "Academically, [the child] is able to complete grade level tasks with the aid of someone maintaining her focus" (id.). Notes taken during the CSE meeting reflect that academically, the child absorbs all the material and that there are no academic issues (Dist. Ex. 24 at p. 1).
The CSE recommended a general education class (Dist. Ex. 1 at p. 1). It continued to recommend speech and language therapy for the child in recognition of her pragmatic language difficulties (Dist. Ex. 1 at pp. 4, 17). It continued to recommend physical therapy and occupational therapy in recognition of the child's motor needs (Dist. Ex. 1 at pp. 6, 17). The CSE continued to recommend counseling for the child, in recognition of her need for enhanced socialization and in recognition of the fact that she does need this redirection and refocusing in class when she is involved in an unstructured task (Dist. Ex. 1 at pp. 5, 17). The CSE was prepared to provide and recommended for her a full-time behavior management paraprofessional to provide redirection and refocusing within the classroom (Dist. Ex. 1 at pp. 16-17). The special education itinerant teacher was not recommended, because she would not be there to enhance any of the academics (id.). She would be there to refocus and redirect the child (Dist. Ex. 1 at pp. 16-17; Tr. p. 38).
The record reflects that behavior management paraprofessionals receive appropriate training to address the child's needs for refocusing and redirection (Tr. pp. 343-46). The record indicates that the CSE considered that a paraprofessional could appropriately address the child's organization skills (Tr. pp. 51-52). The record reflects that behavior management paraprofessionals receive group training, in addition to any particularized training they require, and that they also meet with their supervisor and the child's classroom teacher as a team (Tr. pp. 344-45). I agree with the impartial hearing officer's determination that a full-time behavior management paraprofessional would meet the child's needs.
The impartial hearing officer's decision regarding transition should be affirmed. "In those instances where a student has been placed in programs containing students with other disabilities, or in a regular class placement, a special education teacher with a background in teaching students with autism shall provide transitional support services in order to assure that the student's special education needs are being met" (8 NYCRR 200.13[a]). The SEIT had been working with the child for five years (Tr. p. 541) in school and at home (Tr. pp. 541-42). Therefore, she made the transition with the child from preschool to kindergarten, and has been with the child for first grade and second grade at Flatbush (Tr. p. 55). In essence, the child has had a transition component as part of her recommendations for the past three years (see IHO Decision, p. 28 and Dist. Ex. 28 at p. 2 for information regarding the child's improved grades during the marking period following the SEIT's absence). Although the SEIT recommended a transition plan at the impartial hearing, notably she acknowledged never having made this recommendation previously (Tr. pp. 699-700). The child's SEIT has been performing the same services that a behavior management paraprofessional could provide (Tr. p. 92) and, therefore, the transfer from a SEIT to a paraprofessional does not involve a reduction in the type of services being provided. Under the circumstances presented herein, I concur with the impartial hearing officer that the lack of a transition plan on the IEP did not deny the child a FAPE.
Petitioners assert that the child was improperly denied ESY services in light of her regression. The CSE did not recommend special education services for the summer of 2005 because there was no evidence of the likelihood of substantial regression during the summer months (Tr. pp. 171, 249, 283, 417-18). Students shall be considered for ESY services in accordance with their need to prevent substantial regression (8 NYCRR 200.6[j]; Application of the Bd. of Educ., Appeal No. 04-102). Substantial regression is the inability of a student to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year (8 NYCRR 200.1[aaa]). The SEIT testified that it takes "about a few weeks" for the child "to get back into the structure of it" in September, that she regresses academically but more so behaviorally and that September is "rough" because of the number of holidays (Tr. pp. 616-18). She concluded that she would recommend a 12-month program because otherwise it "could be detrimental" to the child (Tr. pp. 624-26). The evidence in the record does not establish that the child would experience substantial regression during the summer, and, therefore, I concur with the impartial hearing officer that ESY services were not required (IHO Decision, p. 30).
Petitioners assert that the IEP at issue failed to accurately identify the child's needs and to establish appropriate goals and objectives, specifically regarding the lack of goals and objectives for toilet training, organizational skills, improving focus and attention and reducing tantrums. I have reviewed the February 18, 2005 IEP developed for this child (Dist. Ex. 1), and I find that in preparing the portion of the IEP describing the child's present levels of performance, the CSE relied upon the results of updated or timely evaluative and progress note information, and accurately reflects the child's group and social language pragmatic skills, feeding skills, intelligibility of articulation, appropriate use of vocal intensity, language processing (Dist. Ex. 3), and fine motor and gross motor skills needs (Dist. Ex. 1 at p. 6). Behavioral and measurable goals and objectives address the child's needs.
Regarding toileting, the IEP indicates that the child has kidney reflux (Dist. Ex. 1 at p. 7; Dist. Ex. 9). Respondent's social worker spoke to petitioner mother about this condition and petitioner mother indicated that the child has toileting accidents, but that these are infrequent and not every day (Tr. pp. 133-35, 149). The record does mention that the child has had toileting accidents in school (Parent Ex. J at p. 2; Tr. p. 626), but it also indicates that the condition has improved greatly in this area and that the child may use the bathroom as an escape behavior to leave the classroom (Parent Ex. J at p. 2). The record is devoid of any evidence that Flatbush representatives communicated that toileting was an issue for the child within the general classroom environment. The record does not elaborate on the toileting issue. I agree with the impartial hearing officer that neither the classroom teacher nor the SEIT provided any testimony regarding the toilet training issue or if the issue was specifically addressed in the classroom at any time (IHO Decision, pp. 28-29). Under the circumstances presented herein, the record indicates that the behavior management paraprofessional can handle toileting in the form of reminders to use the bathroom at specific times of the day and therefore the absence of toileting goals is not fatal to the IEP.
Regarding organizational skills, these needs would be addressed by the behavior management paraprofessional, as confirmed at the impartial hearing (Tr. pp. 51-52). This is appropriate and organizational skills were not required to be separately listed on the IEP.
Regarding improving focus, one of the goals included in the IEP indicates that by February 2006, the child will be able to maintain her focus and attention without prompts (Dist. Ex. 1 at p. 11). The corresponding short-term objective that states that the adult will give a prompt and redirection when the child loses her focus, four out of five times. The goal clearly indicates what is ultimately required of the child and so, although it should not have indicated what an adult rather than the child will do, this objective is not fatal to the IEP. In comparing the goal with the short-term objective, it appears that prior to the achievement of the goal, the child will not need more than four to five prompts to maintain her focus. The IEP provides for the thorough use of appropriate related services, modifications and supports (Dist. Ex. at p. 17), and establishes appropriate goals and objectives, specific to the aforementioned needs. The record reflects that special education services are not necessary to address the child's academic or attention needs (Dist. Ex. 5 at p. 2; Tr. pp. 217-18), as the child has no academic needs (Dist. Ex. 24 at p. 1) demonstrates grade level or above grade level academic skills (Dist. Ex. 4 at p. 9), and that attention issues that might arise could be addressed by a trained behavior management paraprofessional (Tr. p. 604). Having reviewed these reports as well as the IEP, I find that the latter accurately reflected the student's needs and current levels of performance.
Regarding tantrums, although testimony by the SEIT describes the child as occasionally displaying tantrums for a variety of reasons (Tr. p. 543), the record does not mention the occurrence of any tantrum behaviors occurring in school during the time when staff changes occurred that interfered with the child's performance in school. Progress reports (Parent Ex. J at p. 3; Dist. Ex. 25 at pp. 1-4; Dist. Ex. 26 at p. 2) reflect that the child was making progress, even as changes in staffing occurred (Tr. pp. 654-58). Based on the information before the CSE, they were not required to address tantrums on the IEP.
In light of the aforementioned analysis, I concur with the impartial hearing officer that the February 18, 2005 IEP offered the child a FAPE as set forth above.
I have considered petitioners' remaining contentions and I find them to be without merit.
THE APPEAL IS DISMISSED.
1 On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEA 2004], Pub. L. No. 108-446, 118 Stat. 2647). Citations contained in this decision are to the statute as it existed prior to the 2004 amendments. The relevant events in the instant appeal took place prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEA 2004 do not apply.
2 The term "free appropriate public education" means special education and related services that--
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and,
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.
20 U.S.C. § 1401; see also 34 C.F.R. § 300.13; 20 U.S.C. § 1414[d].