05-121

            Petitioners appeal from the decision of an impartial hearing officer which denied, inter alia, their request to be reimbursed for their daughter's tuition costs at the Enfield Community Christian School (ECCS) for the 2004-05 school year.  The Board of Education cross-appeals from the impartial hearing officer's determination that it failed to demonstrate that it had offered an appropriate educational program to the student for that year.  The appeal must be dismissed.  The cross-appeal must be dismissed.

          At the outset, a procedural issue must be addressed.  Petitioners attached to their petition for review five exhibits that were not made part of the impartial hearing record and are now offered for consideration on review.  In its answer, respondent objects to petitioner's submission of additional documentary evidence. 

            Generally, documentary evidence not presented at an impartial hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary to enable the State Review Officer to render a decision (Application of a Child with a Disability, Appeal No. 05-020; Application of a Child with a Disability, Appeal No. 04-092; Application of the Bd. of Educ., Appeal No. 04-068).  While it is not clear whether the documents were available at the time of the impartial hearing, they are not necessary for my review and, therefore, I will not accept them (Application of a Child with a Disability, Appeal No. 04-083).

            At the time of the impartial hearing, which began on April 29, 2005, petitioners' daughter was 11 years old and attending ECCS.  ECCS has not been approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.7).  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 began receiving special education and therapy services when she was approximately 18 months old (Tr. pp. 627-28; Parent Ex. 48 at p. 2).  At age 2 1/2 she was reportedly diagnosed with autism (Tr. p. 625).  In 1997, at age three, the student began receiving applied behavioral analysis (ABA) at home through a private agency hired by her parents (Tr. p. 630; Dist. Ex. 35).  Beginning in 1998, respondent contracted with the private agency to provide ABA services to the student (Tr. pp. 632-33).  The student slowly transitioned to a school-based program, attending kindergarten half time while continuing to receive ABA instruction at home four hours per day (Dist. Ex. 35 at p. 1).  The student was classified by the Committee on Special Education (CSE) as a student with autism (Parent Ex. 50 at p. 1).  Over the next three school years (2000-01, 2001-02, 2002-03), the student attended school for a shortened day (Tr. p. 147) and received 10 hours per week of 1:1 special education instruction, alternately described as resource room or special class on her individualized education program (IEP), and participated in the general education classroom with a 1:1 aide (Parent Ex. 50 at p. 3, Parent Ex. 43 at p. 3, Parent Ex. B at p. 2).

            The student's IEP for the 2003-04 school year (third grade) indicated that she would attend a 1:1 special class for ten hours per week and regular education classes for Math, Science, Social Studies, Art, Music, and Physical Education (Dist. Ex. 10 at p. 2).  The student's special education consisted of 90 minutes per day of 1:1 instruction in English/Language Arts and Reading (Dist. Ex. 10 at pp. 2, 5) and 30 minutes of consultant teacher services per day delivered during Math (Dist. Ex. 10 at p. 2). In addition, the IEP provided for both speech-language therapy and occupational therapy (OT) twice weekly; a once a week friendship group; and a 1:1 aide when the student was not receiving direct special education or related services (Dist. Ex. 10 at p. 2).  The length of the student's school day was reduced by 1 1/2 hours (id.).  The 2003-04 IEP called for weekly team meetings of the teacher, parent, and 1:1 aide when needed, monthly team meetings of the whole team, and two half day planning sessions to be held in the fall (id.).  The IEP included testing modifications (Dist. Ex. 10 at p. 5) and program supports (Dist. Ex. 10 at pp. 3, 4).  During the school year, respondent's staff expressed concern regarding the student's behavior (Parent Ex. 28; Parent Ex. 29 at p. 2; Dist. Ex. 5; Dist. Ex. 6 at p. 2; Dist. Ex. 37 at pp. 2-4).  Between October 2003 and May 2004, the student received 13 disciplinary referrals related to eight incidents of disruptive and aggressive behavior (Dist. Ex. 17; Parent Ex. 35).  On numerous occasions, petitioners were called to remove the student from school (Dist. Ex. 17 at pp. 1, 2; Parent Ex. 35 at pp. 1, 2; Tr. pp. 359-60, 637-38).

              On May 27, 2004, the CSE met for the student's annual review (Parent Ex. 2).  While the student's special education teacher indicated that the student had made progress in reading (Parent Ex. 2 at p. 6), petitioners questioned the student's progress in math (Parent Ex. 2 at pp. 10, 11). The teacher opined that the student worked better with peers and that individual instruction was not appropriate (Parent Ex. 2 at p. 27). The school psychologist and elementary school principal expressed concern over the student's aggressive behavior (Parent Ex. 2 at pp. 13-14, 20, 29) and whether it could be managed in the public school (Parent Ex. 2 at pp. 22, 26, 29). Petitioners expressed concern over the consistency with which the student's special education services (Parent Ex. 2 at pp. 5, 23, 25-26) and behavior plan (Parent Ex. 2 at p. 13) were implemented.  The student's mother indicated that she would not consent to a placement other than the public school (Parent Ex. 2 at p. 26).  The meeting was tabled with the understanding that the CSE would reconvene to review goals and objectives and to discuss placements for summer and the following school year (Parent Ex. 2 at pp. 29, 31).  In a letter to the director of special education dated May 29, 2004, petitioners registered their formal disagreement with statements and recommendations made during the May 27, 2004 CSE meeting (Parent Ex. 21). 

               On two days in June 2004, the student's mother accompanied the student to her classes (Parent Ex. 20; Dist. Ex. 23).  On the second day, the school principal reportedly told the mother that she was disruptive and asked her to leave the school (Parent Ex. 20 at p. 2).  The parent complied, taking the student with her (Parent Ex. 20 at p. 2; Dist.  Ex. 23 at p. 11).  The student did not return to school  (Dist. Ex. 18; Dist Ex. 38 at p. 1; Parent Ex. 3 at p. 12; Parent Ex. 4 at p. 1), as her mother concluded that the student was not safe there (Tr. pp. 140, 168, 747). 

                When the CSE reconvened on June 17, 2004, much of the committee's discussion focused on the student's summer program (Parent Ex. 3).  For summer 2004, the CSE chairperson recommended that the student attend an 8:1+1 class at respondent's South Hill Elementary School (South Hill), accompanied by a 1:1 aide (Parent Ex. 3 at pp. 1, 3-4, 10-11).  Initially, the student would receive 1:1 instruction in the special class and then, as appropriate, move toward group instruction (Parent Ex. 3 at pp. 5, 11, 12, 23, 24).  The school psychologist opined that the student was "somewhat overdue in terms of transitioning" (Parent Ex. 3 at p. 3) while the CSE chairperson stated that it was "time to have [the student] grouped with other children" (Parent Ex. 3 at p. 14). Petitioners questioned the student's ability to adapt to such a significant program change/transition (Parent Ex. 3 at pp. 1, 9, 19, 21).  As a compromise, the student's mother suggested that the student receive 1:1 instruction in a quiet, neutral location (Parent Ex. 3 at pp. 1-2) and that she visit the 8:1+1 program (Parent Ex. 3 at pp. 9, 13).  The meeting concluded with petitioners agreeing to visit the South Hill 8:1+1 classroom and the CSE deferring a decision until after the visitation occurred (Parent Ex. 3 at pp. 22-23, 25-26).  Petitioners attempted, but were unable to schedule a visit to South Hill (Parent Ex. 4 at pp. 1, 2). 

                 Subsequent to the CSE meeting, petitioners submitted a document to respondent outlining what they believed to be their daughter's needs for summer 2004 and the 2004-05 school year (Parent Ex. 19; Parent Ex. 4 at pp. 1-2; Tr. pp. 35, 680).  Petitioners opined that for the summer the student would need a 1:1 itinerant special education teacher two hours daily at a mutually agreed upon quiet location, if not at her home (Parent Ex. 19 p. 1). They suggested that the itinerant special education teacher would be responsible for teaching the student Language Arts, Math, and computer skills (Parent Ex. 19 at pp. 1, 2), while the student's residential habilitation and day habilitation providers would spend 12 hours per week addressing her needs related to peer play, social skills training, and community integration (id.). Petitioners indicated that for the 2004-05 school year the student would require an independent board certified behavior analyst (BCBA) to provide her with a comprehensive evaluation, to develop an academic program and behavior plan that addressed her educational needs, and to provide training to both staff and parents (id.).  Additionally, the student would require a specialized 1:1 ABA-based academic program in a two hour block provided in a quiet location by an itinerant or subcontracted special education teacher; an experienced 1:1 paraprofessional who received weekly training to assist in mainstreaming the student; continuation of a modified school day; and direct related services replaced by monthly consultations (id.).

                The CSE reconvened on June 24, 2004 (Dist. Ex. 3).  The CSE chairperson reiterated her previous recommendation, that for the summer, the student attend an 8:1+1 class at South Hill Elementary School (Parent Ex. 4 at pp. 2, 10).  Petitioners disagreed with this recommendation (Parent Ex. 4 at pp. 2-3, 26).  The CSE further recommended that the student begin the 2004-05 school year receiving 1:1 instruction, with the goal of transitioning her to group instruction as the year progressed (Parent Ex. 4 at pp. 2, 9, 14, 19).  The IEP developed by the committee contained the following recommendations for summer 2004: the student would attend an 8:1+1 special class at South Hill for four hours daily, accompanied by a 1:1 aide; receive 1:1 non-integrated special class two hours daily; and receive once monthly physical and speech-language therapy consultations (Dist Ex. 3 at pp. 1, 2). 

                For the 2004-05 school year, the committee recommended that the student receive a program that included: a 1:1 non-integrated special class two hours daily; a 1:1 integrated aide 3 1/2 hours daily; monthly OT and speech-language therapy consultations; weekly team meetings with the teacher, parent and 1:1 aide held as needed; and monthly team meetings including the student's teachers, related service providers, and family (Dist. Ex. 3 at p. 1).  The IEP noted that the goal was to move the student from 1:1 special education to small group instruction when appropriate, and indicated that this would be discussed at a CSE meeting (Dist. Ex. 3 at p. 1; Parent Ex. 4 at p. 24). Program modifications/accommodations/supplementary aides and services included a behavior plan to be used throughout the school day and a daily home/school report for communication (Dist. Ex. 3 at p. 2).  The IEP indicated that the CSE would explore the possibility of an outside consultant at the request of petitioners (id.).

               By letter dated June 30, 2004, petitioners requested "due process proceedings" (Dist. Ex. 38).  Petitioners indicated they disagreed with the special education provisions, goals, recommendations and summer placement made by the CSE at the meetings held on May 27, June 17, and June 24, 2004 (id.).  Petitioners opined that their daughter would not be able to adjust to the recommended placement change for summer program; that she would not benefit from special education services provided in a small group setting; that the provision of special education instruction and aide services during the previous school year had been inconsistent; that a behavior plan had neither been finalized nor appropriately implemented for her; and that a comprehensive evaluation requested by petitioners had never been completed (Dist. Ex. 38 at pp. 1, 2).  As a result of petitioners' impartial hearing request, the student's 2003-04 IEP was implemented as the student's pendency placement and the student received 1:1 special education instruction at home during the summer (Tr. pp. 373-74).

               In July 2004, petitioners applied to ECCS (Tr. p. 559; Parent Ex. 44 at p. 1).  In a letter to the CSE chairperson dated August 2, 2004, petitioners asserted that their daughter was denied an appropriate education at respondent's public school and indicated that they had found a school that had agreed to accept the student beginning in September (Parent Ex. 6).  Petitioners acknowledged that they needed to discuss this matter and that a CSE meeting might be necessary (id.).  Petitioners also indicated that they would be seeking reimbursement for an independent evaluation (id.) conducted by a behavior analyst, which took place in July 2004 (Dist. Ex. 57).  In a document dated August 30, 2004, entitled, "Addendum to [the Student's] Needs for 2004-2005 School Year," petitioners revised their request for services for the 2004-05 school year and asked that services be provided to the student at the private school (Parent Ex. 19 at p. 3).  Specifically, they requested 1:1 special education instruction ten hours per week at ECCS; discontinuation of the student's 1:1 aide; and reimbursement for the independent evaluation and the student's tuition at ECCS (id.).  In an undated letter to respondent's attorney, the student's mother indicated that she had discussed with respondent the need to hold a CSE meeting and develop an IEP to reflect the student's enrollment in a private school (Parent Ex. 18).  The student's mother indicated that she wanted two hours of 1:1 special education services delivered by a special education itinerant teacher (SEIT) in the student's new school or in a mutually acceptable quiet location, but that respondent was unwilling to consider this (id.). 

             By letter to the impartial hearing officer dated September 23, 2004, petitioners' attorney requested a 30-day adjournment of the impartial hearing, due in part to the withdrawal of petitioners' original attorney due to illness (Dist. Ex. 42 at p. 1; Dist. Ex. 51 at pp. 1, 2). The new attorney indicated that petitioners had requested a CSE meeting for the purposes of developing an IEP that reflected the student's private school enrollment, but that respondent had failed to schedule a meeting (Dist. Ex. 42 at p. 1).  She suggested that the "area of disagreement" with respondent was small and opined that the case could possibly be resolved through further negotiations and that an impartial hearing might be unnecessary (id.).

            The CSE reconvened on October 15, 2004 (Parent Ex. 5 at p. 1; Parent Ex. 12). The CSE chairperson recommended that the student receive two hours of special education instruction daily in a special class at the public school (Parent Ex. 5 at pp. 8, 13; Parent Ex. 12 at p. 2).  Petitioners contended that no other students at private school had been asked to return to the public school to receive their services (Parent Ex. 5 at pp. 9-10; Parent Ex. 11 at p. 1).  The CSE chairperson noted that one student had returned and the remaining students required less intensive services than petitioners' daughter (Parent Ex. 5 at pp. 9-10).  Petitioners requested that the student's special education services be delivered at the private school (Tr. pp. 55-56). Respondent's attorney indicated that the location of services for a student enrolled in a private school by her parents was an administrative decision and not a CSE decision (Parent Ex. 5 at p. 10).  The CSE meeting was tabled when petitioners' advocate had to leave early (Parent Ex. 5 at p. 19; Tr. p. 373).  The CSE chairperson agreed to develop draft IEP goals and objectives using the student's 2004-05 IEP along with goals and objectives drafted by petitioners and private school staff, based on the private school curriculum (Parent Ex. 5 at pp. 6-7; Parent Ex. 12 at pp. 5-9; Dist. Ex. 52 at p. 1). 

             Respondent scheduled a follow up CSE meeting for November 4, 2004 (Dist. Ex. 47 at p. 12).  Petitioners reportedly received a draft IEP on November 3, 2004 (Dist. Exs. 44, 45; Tr. pp. 353, 686-87), and then contacted respondent and asked that the CSE meeting be postponed (Tr. pp. 353-55, 687).  Respondent alleges that it initiated contact with petitioners on November 4, 2004 and, at that time; petitioners indicated that they would not be attending the CSE meeting, and they did not ask that it be postponed (Tr. pp. 190-91, 301, 306-09).  The meeting was held without petitioners or representatives from the private school present (Dist. Ex. 47 at p. 5; Tr. pp. 693-94).  The CSE recommended that the student receive two hours daily of special education in a non-integrated 6:1+1 class provided on site at Enfield Elementary School (Dist. Ex. 47 at p. 1).  The IEP provided that a behavior plan that addressed target behaviors of aggression and threats (Dist. Ex. 47 at p. 3) would be in effect in the public school setting (Dist. Ex. 47 at pp. 1-2).  Minutes from the CSE meeting indicated that social/emotional goals were not added to the IEP because petitioners had requested at previous meetings that counseling, speech, and OT be discontinued (Dist. Ex. 47 at p. 14).

             On November 13, 2004, petitioners' June 30, 2004 request for an impartial hearing (Dist. Ex. 38) was dismissed without prejudice by the impartial hearing officer after he was unable to schedule a hearing date due to a lack of response from petitioners or their attorney  (Dist. Ex. 51 at pp. 3, 4; Tr. pp. 690-93).  He ordered the impartial hearing request to be dismissed without prejudice on the final date permissible for him to render a decision because no further extensions of time were requested by either party which would permit a hearing to be scheduled (Dist. Ex. 51 at p. 4). 

            On November 23, 2004, petitioners reportedly received a copy of the student's November 4, 2004 IEP by mail (Dist. Ex. 52 at p. 1).  In a letter to respondent dated December 3, 2004, petitioners rejected the November 4, 2004 IEP and requested another CSE meeting (Dist. Ex. 52 at p. 3; Tr. p. 694).

              By letter dated January 12, 2005, petitioners requested the following services in the regular classroom at ECCS: pragmatic speech therapy; a 1:1 paraprofessional; push-in special education services; observation and consultation by an occupational therapist; a behavior plan appropriate to the student's current educational setting; monthly team meetings; and a modified (shortened) school day (Parent Ex. 9 at p. 2).  Petitioners noted that the student required individualized goals that were based on her current curriculum and rate of progress, as well as revised testing modifications.

              The CSE reconvened on January 18, 2005 (Dist. Ex. 53).  The committee chairperson indicated that he would go through the November 4, 2004 IEP to identify the areas of disagreement (Tr. p. 531).  Petitioners objected to the November 4, 2004 IEP being used as the basis for discussion as they felt it was not a legal document (Dist. Ex. 53; Tr. pp. 379, 531-32).  The student's mother indicated that she wanted to postpone the meeting until her attorney and a representative from the student's private school could be present (Dist. Ex. 53; Parent Ex. 10).  Respondent made several attempts to reschedule the meeting, but could not contact the parents who were away on vacation (Tr. p. 380; Dist. Exs. 54, 55; Parent Ex. 10).  When petitioners returned, they opted to request an impartial hearing rather than schedule a CSE meeting (Tr. p. 380).

                By letter dated March 7, 2005, petitioners requested a second impartial hearing to address the alleged failure of respondent to provide their daughter with a free appropriate public education (FAPE) while she was enrolled at respondent's school (Dist. Ex. 56).  Petitioners alleged that the student was denied special education instruction and consistent 1:1 aide services; that the student's teachers were not properly trained to work with autistic students; that the student's behavior plan was never finalized or implemented; and that respondent failed to complete a functional behavioral assessment (FBA) for use in developing the student's June, October or November IEPs (Dist. Ex. 56 at p. 1).  Additionally, relative to the student's placement in the private school, petitioners contended that respondent failed to provide any related services, supports or modifications (Dist Ex. 56 at p. 2).  Petitioners rejected both the June 24, 2004 and November 4, 2004 IEPs and requested that ECCS remain the student's pendency and future educational placement (id.). They also requested that respondent be required to provide the following services to the student at ECCS: a 1:1 aide; a speech therapist and paraprofessional capable of supporting a program of pragmatic speech therapy; OT; special education instruction; appropriate testing modifications; and an appropriate summer education program, including two hours of direct 1:1 special education instruction using the ECCS curriculum in a mutually agreeable location (Dist. Ex. 56 at pp. 2, 3).  Petitioners also requested that respondent develop and support the implementation and monitoring of an appropriate behavior management plan for the entire school day; that the student's IEP include appropriate and measurable goals and benchmarks based on her current curriculum; that respondent reimburse petitioners for the student's tuition costs at ECCS and agree to pay for her future tuition at ECCS; and that respondent reimburse petitioners for their time spent working as 1:1 aides for the student (Dist. Ex. 56 at p. 3).

              On March 29, 2005, respondent moved to dismiss the March 7, 2005 impartial hearing request asserting that the claims involving the 2003-04 school year and the June 2004 IEP were moot (IHO Ex. 2 at pp. 4, 5).  Respondent further asserted that no hearing was required with respect to petitioners' request for special education services to be provided at ECCS during the 2004-05 school year because petitioners did not make a proper request for services under Section 3602-c of the Education Law and because there was no legal requirement that the special education services requested by petitioners be delivered at the private school (id.).  Respondent also asserted that an impartial hearing was not required regarding the November 4, 2004 CSE meeting because the issues raised related to petitioners' request for special education services to be delivered at the private school in the 2004-05 school year (id.).  Petitioners argued that their claims were not moot (IHO Ex. 3 at pp. 5, 6) and that respondent was required to provide services at ECCS (IHO Ex. 3 at pp. 7, 8).

                In an interim decision dated April 20, 2005, the impartial hearing officer dismissed petitioners' claims regarding the 2003-04 school year as moot and stated that they could pursue their other claims (Parent Ex. 1 at p. 6). 

               The impartial hearing took place over the course of four days, beginning on April 29 and ending on June 8, 2005.  In a 34-page decision dated October 18, 2005, the impartial hearing officer determined that respondent did not offer the student a FAPE.  He concluded that the IEP developed on June 24, 2004 did not reflect appropriate positive behavior interventions or strategies or contain adequate behavioral goals and objectives "given the seriousness of [the student's] behavior problems in the months preceding the development of the IEP" (IHO Decision, pp. 22, 24).  The impartial hearing officer also concluded that ECCS was not an appropriate program for the student because it did not offer a program individualized to meet the student's special education needs (IHO Decision, p. 25). He concluded that respondent was not responsible for the student's tuition at ECCS for the 2004-05 school year without reaching the question of equities (id.).  The impartial hearing officer further determined that petitioners were not entitled to reimbursement for the 1:1 aide, because both the student's need for the 1:1 aide and the nature of the services provided had not been established (IHO Decision, p. 30). Lastly, he further found that petitioners failed to establish that the student's special education instruction must be provided at ECCS and that the record was insufficient to make a determination about the student's needs in the area of speech therapy (IHO Decision, pp. 33-34).

               On appeal, petitioners assert that the impartial hearing officer erred in finding that: ECCS did not offer an appropriate program; petitioners did not need a 1:1 aide or reimbursement for an aide; it was not necessary for respondent to provide special education instruction and related services to the student at ECCS; respondent is not required to provide services under Education Law § 3602-c; the record contains no evidence that student needed speech services; the record contains no evidence that an ABA approach was needed for the student's behavior plan; and that the impartial hearing officer erred in not reaching the equities issue in his analysis.  Respondent cross-appeals and disagrees with the finding of the impartial hearing officer that the June 24, 2004 IEP failed to provide a FAPE to the student.  Respondent further disagrees with the finding of the impartial hearing officer that the IEP developed on November 24, 2004 be annulled.

               A 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]; Schaffer v. Weast, 126 S. Ct. 528 [2005])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]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).² A board of education may be required to reimburse parents for their expenditures for private 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]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192  [2d Cir. 2005]).  In Burlington, the court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (id.).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).  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 (Carter, 510 U.S. at 14).

               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 [1982]).  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]).  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][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, Notice of Interpretation, Question 1).  An IEP must include measurable annual goals, including benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a][2]; see 8 NYCRR 200.4[d][2][iii]).

              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]).

              The impartial hearing officer determined the relevant IEP was the IEP which was developed on June 24, 2004.  I concur.  The relevant IEP for purposes of an award of tuition reimbursement is the IEP which the parents had at the time when they enrolled (or re-enrolled) their child in the private school (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 01-010; Application of the Bd. of Educ., Appeal No. 00-053).  The record reflects that respondent developed multiple IEPs for the student during the 2004-05 school year (Dist. Ex. 3 [June 24, 2004]; Dist. Ex. 47 [November 4, 2004]).  The relevant IEP for purposes of an award of tuition reimbursement is the IEP petitioners had in September 2004, the time of the student's enrollment at ECCS (Dist. Ex. 3).

              The impartial hearing officer determined that the June 24, 2004 IEP was deficient and failed to offer the student a FAPE (IHO Decision, pp. 21, 24) because the IEP did not reflect positive behavior interventions or strategies, or contain goals and objectives related to improving the student's behavior (IHO Decision, p. 22).  I agree.

              State regulations require that an FBA be performed as part of an initial evaluation of a child suspected of having a disability if the student's behavior impedes his or her learning or that of others (8 NYCRR 200.4[b][1][v]).  In addition, in all subsequent 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 behavioral interventions, and supports to address that behavior" (20 U.S.C. 1414[d][3][B][i]; 34 C.F.R. § 300.346[a][2][i]; see 8 NYCRR 200.4[d][3][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).

              Where behavior impedes a student from learning, the CSE must properly assess that behavior as an initial step in developing an appropriate IEP (Application of a Child with a Disability, Appeal No. 03-057; Application of a Child with a Disability, Appeal No. 02-032; Application of a Child with a Disability, Appeal No. 01-094; Application of the Bd. of Educ., Appeal No. 01-060).

              At the time of the May 27, 2004 CSE meeting, the school psychologist indicated that the student's behavioral issues were "obviously paramount" (Parent Ex. 2 at p. 20) and opined "we are right at the edge of what we can handle in a public school" (Parent Ex. 2 at p. 22).  The psychologist later testified that the student's " behavior was without a doubt the worst it had been in the several years" (Tr. p. 268). The social worker that conducted the student's friendship group stated that it was "becoming increasingly difficult to mange [the student] physically in school when she has a meltdown since she is growing and is very strong" (Dist. Ex. 5 at p. 2).  The social worker expressed concern about the number of times the student had injured other people and about the student's difficulty "de-escalating" after tantrums (Dist Ex. 5 at p. 2; Parent Ex. 2 at p. 12).  The school principal indicated that parents of other students had expressed concerns regarding the student's biting, kicking, and vile language (Parent Ex. 2 at p. 29). The student's classroom teacher reported that some of the children in her class were afraid of the student because they had seen her attack another student (Parent Ex. 2 at p. 29).  Between October 2003 and May 2004, the student received 13 disciplinary referrals related to eight incidents of disruptive and aggressive behavior (Dist. Ex. 17 at pp. 1, 2; Parent Ex. 35 at pp. 1, 2).  The student did not attend school for the month of June (Dist. Ex. 18; Dist Ex. 38 at p. 1; Parent Ex. 3 at p. 12).  On numerous occasions the student's parents were called to remove the student from school (Dist. Ex. 17 at pp. 1, 2; Parent Ex. 35 at pp. 1, 2; Tr. pp. 359-60, 637-38; see also Tr. p. 319). 

            The record indicates that a behavior plan was developed during the 2003-04 school year (Tr. pp. 232, 235, 636; Dist. Ex. 16 at pp. 3, 6; Parent Ex. 23 at pp. 3, 4) and respondent's staff testified to incorporating behavior management strategies into the student's program (Tr. pp. 121, 125-26, 184, 440-41, 448-49).  However, the record reflects that the plan was not implemented consistently, as the student's inappropriate behavior was not met with uniform consequences (Tr. pp. 71, 78; Parent Ex. 2 at p. 22) and the plan was not finalized (Tr. pp. 234-35, 272-73).  The CSE chairperson acknowledged that the student's behavior plan needed to be "revisited" (Parent Ex. 3 at p. 21).

              Although the impartial hearing officer found that respondent offered no evidence that it reviewed and analyzed the student's disciplinary referrals, the school principal testified that following incidents involving the student she attempted to ascertain whether the student's behavior plan had been followed (Tr. p. 248) and, additionally, she brought the incidents to the attention of the CSE chairperson (Tr. p. 517).  She further indicated that staff "talked about the student in team meetings if something wasn't working" (id.).  However, the school psychologist acknowledged that the team had not engaged in extensive data-keeping (Parent Ex. 2 at p. 25).  The student's 2004-05 IEP recommended a placement that was in many ways similar to that of the previous year and would most likely expose her to many of the same environmental conditions.  Yet, despite the student's worsening behavior, there is no indication that an FBA was conducted during the 2003-04 school year and the student's 2004-05 IEP did not contain any goals or objectives related to decreasing her inappropriate behavior (Dist. Ex. 3).

                Respondent contends that the behavior plan drafted by the school psychologist based on her observations of the student and meetings with the team constituted an FBA (Dist. Ex. 16).  An FBA

…means 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])

               I concur with the impartial hearing officer that, "while the plan does identify the problem behavior as aggression and threatened aggression, it does not identify contextual factors specific to [the student]" (IHO Decision, p. 22).  Additionally, as the impartial hearing officer noted, respondent did not identify specific behavioral concerns on the student's IEP, and did not develop adequate goals or objectives related to improving the student's behavior (IHO Decision, pp. 23-24).  Respondent argues that the behavior plan contains a hypothesis about what leads to the student's aggressive behavior as it states, "academic tasks based on language such as reading and writing can be extremely frustrating."  However, this description conflicts with the school psychologist's comments that the student's behavioral incidents appeared to occur during transitions and unstructured time and not when she was actually working on something (Parent Ex. 2 at p. 20).

                Accordingly, I find that the evidence demonstrates that the June 24, 2004 IEP was inadequate when formulated and petitioners' daughter was not offered a FAPE for the 2004-05 school year.

                 I must now consider whether the placement petitioners selected for their daughter for the 2004-05 school year was appropriate (Burlington, 471 U.S. 359; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-080).  The private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 04-108; Application of a Child with a Disability, Appeal No. 01-010).  The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).  The test for a parental placement is that it is appropriate, not that it is perfect (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999]; see also M.S., 231 F.3d at 105).

                  I concur with the impartial hearing officer's determination that ECCS did not offer an appropriate program.  The impartial hearing officer found that ECCS did not offer a program individualized to the student's special education needs (IHO Decision, p. 25).  He noted that the student worked on workbooks from a programmed curriculum and did not receive direct instruction from teachers or other service providers.  Further, the impartial hearing officer determined that petitioners' request that respondent provide the student with special education services at ECCS undermined their contention that ECCS offered an appropriate program.

                  The student is 11 years old and in the third grade.  She is reportedly dyslexic (Tr. p. 123) and able to read at a second to third grade level (Parent Ex. 39 at pp. 4, 5; Parent Ex. 44 at p. 2; Dist. Ex. 57 at p. 1).  The student is able to read one or two sentences independently, but requires prompting to stay focused on longer passages (Parent Ex. 2 at p. 7).  The student's math skills are estimated to be at the mid-first grade level (Dist. 57 at p. 1).  She is able to count from 1 to 50 and from 50 to 100 and knows some basic addition facts (Parent Ex. 2 at p. 9).  She has difficulty with number reversals (Dist. Ex. 3 at p. 3; Parent Ex. 2 at p. 9) and has difficulty writing (Dist. Ex. 8 at p. 1) and, although she is able to write short responses (Dist. Ex. 6 at p. 1), writing is an arduous and painful process for her (Tr. p. 125).  In terms of content, the student's writing reflects some structure and logic; however, she has difficulty maintaining a topic (Parent Ex. 2 at p. 8).  The student enjoys working with peers (Tr. p. 114), but is unable to do the same work as her peers in the regular education classroom unless it is modified (Parent Ex. 2 at p. 1).  The student is distractible (Dist. Ex. 58 at p. 4) and has difficulty attending (Tr. p. 370).  She has been diagnosed with an attention deficit hyperactivity disorder (Tr. p. 284).  The student's language is "somewhat" atypical (Dist. Ex. 58 at p. 3) and she demonstrates pragmatic language deficits related to maintaining eye contact, maintaining a topic and respecting personal space (Parent Ex. 2 at p. 15).  She perseverates on topics of her interest (Dist. Ex. 58 at p. 3).  The student has aggressive outbursts or "tantrums" which include verbal and physical aggression (Dist. Ex. 5 at pp. 1, 2; Dist. Ex. 6 at p. 2; Dist. Ex. 17; Parent Ex. 35).  The student experiences anxiety (Parent Exs. 46, 47; Tr. p. 284) and transitions are problematic for her (Tr. pp. 172-73, 285-86, 288).

                  The record indicates that ECCS opened in September 2004 (Tr. p. 559).  ECCS employs an individualized curriculum called Accelerated Christian Education (ACE) that allows each student to be diagnosed at a certain level of development in each subject (Tr. p. 560; Parent Ex. 5 at pp. 1, 2) and placed according to the student's individual levels (Tr. p. 560).  The students work on units called PACES (Parent Ex. 5 at p. 2).  Each PACE can be completed in approximately three weeks (id.).  There are 12 PACES in a grade level (id.). Students do a year's worth of work in each subject, or approximately 12 PACES, at their level (Parent Ex. 5 at pp. 1, 2).

                   At ECCS, the student was attending a general education classroom with children ages 7 through 15 (Tr. p. 569).  The administrator confirmed that, as a rule, the teacher did not stand up in front of the classroom and teach, but in general, students sat at their carrels working through workbooks (Tr. p. 570).  The student attended ECCS four to five hours per day (Tr. p. 571). The student's school day was modified in that she left school and went home for a period of one to two hours in the middle of the day and later returned (Tr. pp. 571-73).  The student's program was individualized to the extent that she had someone scribe for her (Tr. p. 570).

                   Records from ECCS indicated that the student mastered PACES in each subject area, but did not indicate what skills were being targeted by each PACE (Parent Ex. 44 at p. 3).  Although petitioners state that the student did not have any behavior incidents since leaving Enfield (Tr. p. 705), the ECCS administrator recalled one tantrum that occurred at the school (Tr. pp. 562-63).

                   Although the student's academic skills were significantly delayed, petitioners did not provide proof that the student received any kind of academic instruction nor did they indicate what academic skills the student was working on.  In addition, petitioners did not indicate how the ECCS program addressed the student's pragmatic language deficits or motor weaknesses.  In January 2005, after the student had been attending ECCS for four months, petitioners wrote a letter to respondent requesting the following services at ECCS: daily pragmatic speech therapy; 1:1 special education instruction; a 1:1 aide; observation and consultation by an occupational therapist; a behavior plan appropriate to the student's current setting; a modified school day; and monthly team meetings (Parent Ex. 9 at p. 2).

               Petitioners also seek reimbursement for the services the student's mother provided as the student's 1:1 aide.  I concur with the impartial hearing officer's determination that reimbursement for services as a 1:1 aide be denied (IHO Decision, p. 34).  In reaching this determination, the impartial hearing officer based his analysis on the November 4, 2004 IEP (IHO Decision, p. 26).  He found that the IEP that was developed as result of the November 4, 2004 CSE meeting "must be annulled" because the absence of petitioners at that meeting infringed upon their opportunity to participate in the IEP formulation process (IHO Decision, p. 28).  He then found that petitioners did not establish that the aide services the student's mother provided were appropriate (IHO Decision, p. 29).

                  The impartial hearing officer determined that the student did not need a 1:1 aide because of the nature of the classroom at ECCS (IHO Decision, p. 29).  Respondent's school psychologist testified that the student did not need an aide because ECCS was "a small setting, a very orderly, controlled setting with a great deal of adult support" (Tr. p. 262).  Moreover, in a letter dated August 30, 2004, petitioners requested that the services of an aide be discontinued (Parent Ex. 19 at p. 3) after their daughter was enrolled at ECCS.  Although general testimony was offered that the student's mother volunteered as her daughter's aide, petitioners did not establish the nature of the services that the student's mother provided.  I agree with the impartial hearing officer's finding that neither the student's need for a 1:1 aide, nor the nature of the services provided, were established.

                  Petitioners also request that respondent provide their daughter with special education services at ECCS.  The IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools.  Although boards of education are required by the IDEA to provide some special education services to some children enrolled privately by their parents in nonpublic schools, no such children are individually entitled under the IDEA to any or all of the services they would receive if enrolled in a public school.  The IDEA also authorizes the delivery of whatever special education services are to be provided to such children "on the premises of private, including parochial, schools, to the extent consistent with law" (20 U.S.C. § 1412[a][10][A][i][II]).  Section 3602-c of the Education Law requires the provision of special education services to children with disabilities who are enrolled by their parents in nonpublic schools provided that a request for such services is filed with the board of education on or before the first day of June preceding the school year for which the request is made (N.Y. Educ. Law § 3602-c[2]).

                  In contrast to the IDEA, New York State law does confer an individual entitlement to special education services and programs to eligible students enrolled by their parents in nonpublic schools.  Education for students with disabilities means special education programs "designed to serve" students with disabilities (N.Y. Educ. Law § 3602-c[1][d]). Subdivision 2 of section 3602-c of the Education Law requires boards of education, upon timely request by parents, to furnish appropriate special education programs to students with disabilities privately placed by their parents in nonpublic schools.  These services can be provided to children with disabilities, in appropriate circumstances, according to their individual needs, either in the regular classes of the public schools or elsewhere, including at the nonpublic school the student attends (see Bay Shore Union Free Sch. Dist. v. T., 2005 WL 3489246 [E.D.N.Y. Dec. 21, 2005]; Application of the Bd. of Educ., Appeal No. 04-079).

                  The impartial hearing officer determined that petitioners did not file a request for services until August 30, 2004, well after the June 1, 2004 deadline.  There was neither a timely request for dual enrollment services, nor a waiver by respondent of such a requirement.  I concur with the impartial hearing officer that to the extent petitioners seek relief in the form of services for the 2004-05 school year, that claim is now moot (Application of a Child with a Disability, Appeal No. 03-046).

                   Petitioners also request pragmatic speech therapy at ECCS.  Petitioners' daughter received speech therapy at respondent's school, but at petitioners request, it was discontinued (Parent Ex. 19 at p. 1).  On August 30, 2004, petitioners' requested services at ECCS, but did not include speech therapy (Parent Ex. 19 at p. 3).  Furthermore, petitioners did not request speech therapy at the October 15, 2004 CSE meeting or in subsequent correspondence.  They requested speech therapy by letter in January 2005 (Parent Ex. 9).  The CSE did not discuss speech therapy and I concur with the impartial hearing officer's finding that the record is insufficient to determine the student's needs with respect to speech therapy.

                   Petitioners also request an ABA program.  I concur with the impartial hearing officer's determination that the evidence does not demonstrate that the student required ABA services in order to receive educational benefit (IHO Decision, p. 20). 

                   Lastly, petitioners request compensatory services for the 2004-05 school year.  I note that this issue was not raised at the hearing.  Consequently, I will not consider it in this appeal.  (Application of a Child with a Disability, Appeal No. 05-005; Application of a Child with a Disability, Appeal No. 01-004; Application with a Child with a Disability, Appeal No. 99-60).

                   I have considered petitioners' and respondent's remaining contentions and I find them to be without merit.  The impartial hearing officer's decision is thorough and well reasoned and the proceedings below were conducted consistent with the requirements of due process. Upon completion of my review, I find there is no need to modify his determinations.³

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.