05-123

            Petitioner, the Board of Education of the Chappaqua Central School District, appeals from the decision of an impartial hearing officer which found that it failed to offer an appropriate educational program to respondents' son and ordered it to reimburse respondents for their son's tuition costs at the Eagle Hill School (Eagle Hill) for the 2004-05 school year.  The appeal must be sustained in part.

            At the commencement of the impartial hearing in March 2005, respondents' son was 10 years old (Tr. p. 5), attending fifth grade at Eagle Hill where he had been unilaterally placed by respondents (Tr. pp. 6, 301), and classified as a student with multiple disabilities (Dist. Ex. 9 at p. 1; Tr. p. 5).  Eagle Hill is a private school located in Greenwich, Connecticut that has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (8 NYCRR 200.7) (Tr. p. 6).  Respondents' son displays features of an Autistic Disorder; however, he was characterized as "high-functioning" within that diagnostic category (Dist. Ex. 16 at p. 18).  The student exhibits motor, sensory and attention deficits, as well as academic weaknesses in the areas of math reasoning, numerical operations, reading comprehension and writing (Dist. Ex. 16 at pp. 16, 18).  He also exhibits deficits in expressive, receptive and pragmatic language skills (Dist. Ex. 13 at p. 3).  The student's eligibility for special education services and his classification (see 8 NYCRR 200.1[zz][8]) are not in dispute in this appeal (Tr. pp. 5, 26).

            The student received speech-language and occupational therapy (OT) services via the Early Intervention Program at the age of two (Dist. Ex. 16 at p. 2).  He attended an inclusion program for preschool where these related services continued and applied behavioral analysis (ABA) services at home and school was introduced (Dist. Ex. 17 at p. 1).  In July 1999, when the student was five years old, a developmental pediatrician who evaluated the student reported that the student exhibited an expressive, receptive and pragmatic language disorder; delay in fine motor/graphomotor skills; and decreased attentional skills (Dist. Ex. 17 at p. 4).  Although in her report the developmental pediatrician did not diagnose the student with a pervasive developmental disorder (PDD), she reported that he demonstrated many of the characteristics associated with this disorder, such as expressive and receptive language delay, poor social interaction skills and limited play skills (Dist. Ex. 17 at p. 4).  Administration of the Stanford-Binet Intelligence Test (Stanford-Binet) (Dist. Ex. 17 at p. 2) to the student at that time yielded a below age expectation test composite score of 73 (5th percentile) (Dist. Ex. 17 at p. 4).  The evaluator's recommendations included continued ABA and related services and implementation of an extended school year (ESY) program (id.).

            In May 2002, when the student was nine years old and in second grade, as part of his triennial review, a psychological evaluation of the student was conducted by petitioner (Dist. Ex. 15).  The evaluators reported that the student exhibited difficulty sustaining his attention in order to understand test directions and required frequent breaks (Dist. Ex. 15 at p. 2).  Administration of the Wechsler Intelligence Scale for Children-Third Edition (WISC-III) yielded a verbal IQ score of 60 (fourth percentile), a performance IQ score of 55 (first percentile) and a full-scale IQ score of 54 (first percentile) (Dist. Ex. 15 at p. 3).   They noted that the student's performance was negatively impacted by severe attention and executive function deficits as well as significant language processing difficulties (Dist. Ex. 15 at p. 3).  The evaluators indicated in their report that the Kaufman Brief Intelligence Test (K-BIT) was also administered to the student because it required  "cognitive flexibility" not required in performance on the WISC-III (Dist. Ex. 15 at p. 3).  The student 's performance on the K-BIT yielded a composite score of 80 (9th percentile), which the evaluators described as "more in concert" with the Stanford-Binet administration from 1999 (Dist. Ex. 15 at p. 3; see Dist. Ex. 17 at p. 4).  The student's performance was below average on tasks measuring his memory and attention skills (Dist. Ex. 15 at p. 7).  His performance on tasks measuring his visual scanning ability and processing speed was well below average (Dist. Ex. 15 at p. 7).  The supervising psychologist reported that the student's profile was suggestive of a child on the PDD spectrum; however, it was also noted that his "ability to charm others with his personality and his eagerness to please" made his educational prognosis good provided that attention be given to his functional skills within the classroom, and that his curriculum be modified (Dist. Ex. 15 at pp. 7-8).

            Petitioner's Committee on Special Education (CSE) convened in February 2003 and May 2003 for annual reviews of the student and to develop an individualized education program (IEP) for the student's fourth grade 2003-04 school year (Parent Ex. B; Dist. Ex. 4).  The comment section of the student's May 2003 IEP described the student as demonstrating delays in activities of daily living (ADL) skills, academic performance, language and communication and social development (Dist. Ex. 4 at p. 4).  According to the student's May 2003 IEP, the student required a carefully constructed learning environment with clearly established routines and time for practice and rehearsal (id.).  The student was reported to need "consistent reminders, cues and prompts" throughout the day, as well as OT consultation for environmental modifications in order to meet his sensory-motor needs (id.).

            The resultant May 2003 IEP recommended a 6:1 special education co-teaching support program for all academic classes with a full-time 5:1 program assistant and "daily, explicit reading instruction for at least 30 minutes," two of which were to be provided as individual sessions (Dist. Ex. 4 at p. 1; Tr. p. 49).  The reading instruction was included in the IEP at the request of the student's mother, who in March 2003 expressed concerns to the student's special education teacher that his progress in reading comprehension was "minimal" (Dist. Ex. 6).  The CSE also recommended that the student receive special education co-teacher instruction three times per week for a total of at least 30 minutes (Dist. Ex. 4 at p. 1; Tr. p. 49).  Related services recommended by the CSE included 30 minutes of individual OT consultation once a month, 30 minutes of OT twice a week in a group, 30 minutes of individual speech-language therapy once a week, and 30 minutes of speech-language therapy twice a week in a group (id.).  The CSE also recommended a variety of testing accommodations including extended time, administration in a location with minimal distractions, clarify/read directions, frequent breaks and provide examples (Dist. Ex. 4 at p. 2).  Recommended program supports included cues for attention, use of graphic organizers, additional time, modified curriculum, preferential seating, refocus/redirection, and re-teaching of materials (id.).  Many of the program supports contained in the IEP included a description of how that support was to be implemented, for example having the student work one-on-one with an adult or in a small group to revisit skills and concepts (id.).

            In February 2003, the student's mother submitted suggested goals and objectives for the student to the CSE (Dist. Ex. 5), many of which were incorporated into the 2003-04 IEP  (Tr. pp. 53-54; see Dist. Exs. 4 at pp. 5-7, 5).  The student's May 2003 IEP contained annual goals and short-term objectives in the areas of reading, writing, math, and speech-language (Dist. Ex. 4 at pp. 5-7).  Other annual goals and corresponding objectives related to improving the student's handwriting skills, following directions in the classroom, following classroom routines, communicating with peers, and using a computer for writing tasks (Dist. Ex. 4 at p. 7).

            During the 2003-04 school year, the student attended one of petitioner's co-teaching support programs, described in the record as full-day special education support within the general education environment, in which half the special education instruction time was provided directly by a special education teacher, with the remaining time provided by a special education teacher assistant  (Dist. Ex. 4 at p. 1; Tr. pp. 47-48).  The student also received full-time 1:1 program assistant services and related services of OT and speech-language therapy (Tr. pp. 48-49).  The student participated in a weekly in-class community-building program led by petitioner's school psychologist, which addressed peer relationships and conflict management (Tr. p. 410).  The student's parent reported that during that school year the student received private tutoring in writing, reading and math, as well as private OT (Tr. p. 1231).  The student also participated in a private social skills group (id.).

            In December 2003 and January 2004, a private neuropsychological evaluation of the student was conducted (Dist. Ex. 16). In addition, petitioner conducted a number of evaluations of the student in spring 2004 (Dist. Exs. 10, 13, 14), as well as a classroom observation (Dist. Ex. 11) and a social history update (Dist. Ex. 12).  The special education teacher who conducted the educational evaluation over a period of three weeks in March-April 2004 noted in her report that the student exhibited "significantly limited attention span, rapid mental fatigue, and rigidity when asked to engage in mental flexibility and simultaneous processing tasks," such that the testing sessions had to be extended over many days with one subtest presented per day (Dist. Ex. 10 at p. 1).  She also indicated in her report that the student's test scores were "deflated" and not a valid indication of his abilities (id.).  The special education teacher reported that excessive prompting, repetition of the test questions and re-explanation of the directions to the student deviated from the test administration procedures described in the test manual (id.).  She also noted that constant examiner prompting for the student to return to task, abbreviated testing sessions, frequent breaks and testing modifications were necessary to accommodate his significantly low testing threshold and attention span (id.).

            Administration of the Woodcock Johnson Tests of Achievement-III (WJ-III) revealed a broad reading standard score (SS) (percentile) of 83 (13) and a broad written language SS of 75 (5) (Dist. Ex. 10 at p. 2).  Although the report indicated the student's performance on the letter-word identification subtest was in the low average range, it also indicated that in a classroom setting the student demonstrated consistent ability to "read grade level and above words in isolation and in context" provided that the student received prompts from his teacher (id.).  Narratives contained in the special education teacher's report indicated that the student's performance on all subtests of the WJ-III were affected by his difficulty sustaining attention to complete the tasks (Dist. Ex. 10 at pp. 3-6).  Also noted in the report was the student's difficulty with timed subtests (Dist. Ex. 10 at p. 6) and that his performance in the classroom and in 1:1 situations often improved due to teacher prompts to recall strategies (Dist. Ex. 10 at p. 7).  The special education teacher provided numerous suggestions to assist the student's learning, including: avoiding long verbal directions, providing sensory input, repeating directions to check for understanding, and presenting information at a slower pace (Dist. Ex. 10 at p. 9).

            A speech-language evaluation of the student was conducted in May 2004 by the speech-language pathologist who had worked with the student during the 2003-04 school year (Dist. Ex. 13; Tr. p. 587).  The examiner reported increased performance in the student's ability to demonstrate understanding of vocabulary and to associate new vocabulary with existing knowledge (Dist. Ex. 13 at p. 1).  She noted that the student's attention was inconsistent, and his management needs included a firm, structured environment with clear expectations (id.).  Administration of the Clinical Evaluation of Language Fundamentals-Third Edition (CELF-3) revealed low average scores on one out of three receptive language subtests and two out of three expressive language subtests (Dist. Ex. 13 at pp. 1-2).  The student demonstrated "low performance" on two out of three receptive language subtests, one out of three expressive language subtests and both supplemental subtests administered (id.).  His overall receptive language SS (percentile) was 69 (2), overall expressive language SS was 78 (7) and his total language score was 72 (3) (Dist. Ex. 13 at p. 2).  Frequent fluctuations in the student's attention were observed and reported by the speech-language pathologist who commented that his performance on the CELF-3 was consistent with what she saw during therapy sessions (id.).  Administration of the Test of Problem Solving (TOPS)- Elementary resulted in a SS (percentile) of 55 (1) (id.).  The examiner noted that the student displayed difficulty in explaining questions verbally, providing verbal definitions of words, and expressing reasons for actions seen in pictures (id.).  The speech-language pathologist recommended that the student continue to receive speech-language therapy services to focus on improving receptive, expressive and pragmatic language skills (id.).

            Petitioner's CSE, including the student's mother, met in March, May, June and July 2004 in order to develop the student's 2004-05 IEP (Tr. pp. 172, 1320; Dist. Exs. 8, 9).  The director of special education and related services testified that the July 2004 meeting was held to review, consider, and possibly modify goals and objectives that had been generated at an earlier meeting (Tr. pp. 79-80).  District staff testified that the 2004-05 IEP goals and objectives were reviewed and discussed at each CSE meeting and that there were no objections to the goals and objectives raised by respondents (Tr. pp. 82-83, 436-38, 593, 712, 825-26, 1000-01).  The final 2004-05 IEP dated July 9, 2004 recommended a full-time 6:1 co-teaching support program in the general education environment with a full-time shared (5:1) program assistant, daily integrated individual math instruction and daily individual reading instruction in a separate location (Dist. Ex. 9 at p. 1; Tr. pp. 47-49, 84).  The CSE also recommended integrated communication skills (speech-language therapy) twice weekly in a group and once per week individually in a separate location, individual integrated OT twice weekly and one time per month integrated OT consultation, one time per week individual psychological services in a separate location and twice monthly integrated psychological consultation (Dist. Ex. 9 at p. 1; Tr. p. 84).  Other services recommended included weekly parent counseling, monthly psychiatric consultation, and monthly team meetings (Dist. Ex. 9 at p. 1).  Numerous testing accommodations, program modifications and assistive technology services were also recommended (Dist. Ex. 9 at pp. 2-3).  Although the student's mother stated that she appreciated all of petitioner's efforts, respondents requested that petitioner's CSE consider Eagle Hill as a placement for the student for the 2004-05 school year (Tr. p. 1320). No requests for a functional behavioral assessment (FBA)¹ of the student was made by the student's mother at the CSE meetings.

            Respondents did not accept the CSE's recommended educational program for the 2004-05 school year.  By letter dated August 25, 2004, respondents informed petitioner that their son would be enrolled in Eagle Hill and requested an impartial hearing for the purposes of obtaining tuition reimbursement and transportation for the 2004-05 school year and "compensatory and remedial relief" from the 2003-04 school year (Dist. Ex. 1 at p. 1).  I note the record also indicates that respondents withdrew their impartial hearing request without prejudice by letter dated October 18, 2004 (Dist. Ex. 2), but "re-filed" their impartial hearing request by letter dated January 10, 2005 (Dist. Ex. 3).

            The impartial hearing commenced on March 7, 2005 and concluded on July 20, 2005 after six days of testimony.  On October 31, 2005, the impartial hearing officer rendered his decision finding that petitioner failed to offer an appropriate educational program to respondents' son (IHO Decision, p. 37), Eagle Hill provided appropriate services to respondents' son (IHO Decision, pp. 37-38), and equitable considerations supported respondents' tuition reimbursement claim (IHO Decision, pp. 33, 38).  More specifically, the impartial hearing officer found that the CSE failed to give prior written notice of its reasons for rejecting an out-of-district placement (see 20 U.S.C. § 1415[b][3], [c][2]; 34 C.F.R. § 300.503[b][2]; 8 NYCRR 200.5[a][3][ii]), but found that this procedural error did not seriously infringe upon respondents' opportunity to participate in the IEP process or compromise the development of the student's IEP (IHO Decision, p. 35).  However, the impartial hearing officer found the CSE's failure to obtain an FBA of the student resulted in a denial of a free appropriate public education (FAPE) (IHO Decision, p. 37).  The impartial hearing officer found that the student's IEPs had repeatedly stated that his behavior significantly interfered with his instruction and determined that the student's poor attention, lack of focus, tangential speech and "fantasy episodes" significantly interfered with his instruction (IHO Decision, p. 36).  The impartial hearing officer further found that Eagle Hill was an appropriate placement for the student and that there were no equitable considerations to prohibit an award of tuition reimbursement (IHO Decision, pp. 37-38).  Thus, the impartial hearing officer ordered petitioner to reimburse respondents for their son's tuition costs at Eagle Hill for the 2004-05 school year.   The impartial hearing officer did not make a determination as to transportation as the record reflects that petitioner was providing transportation at the time of the hearing (Tr. p. 1253).  The impartial hearing officer also did not make a determination regarding respondents' request for "compensatory and remedial relief" for the 2003-04 school year.

            On appeal, petitioner contends that the impartial hearing officer erred in holding that the lack of an FBA resulted in a denial of FAPE (Pet. p. 6) and asserts that it offered the student an appropriate program for the 2004-05 school year (Pet. p. 12).  Petitioner further contends that the impartial hearing officer erred in determining that respondents are entitled to tuition reimbursement (Pet. p. 11).

            A purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487)² 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]).  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[8][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).³  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]).  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 the board of education (a) 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).

            An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals 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 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]).

            Petitioner contends that the impartial hearing officer erred in holding that the lack of an FBA resulted in a denial of FAPE for this student.   State regulations require that an FBA be performed as part of an initial evaluation of a child suspected of having a disability if the child'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 positive 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 child's learning, the CSE must properly assess that behavior as an initial step in developing an appropriate IEP (Application of the Bd. of Educ., Appeal No. 05-031; 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).  Respondents allege that petitioner should have conducted an FBA and developed a behavioral intervention plan (BIP)⁴ as the student's IEPs have repeatedly concluded that their son's behavior "seriously interfere[d] with instruction" (Answer ¶ 21).  The CSE did not conduct a formal FBA or develop a BIP for the 2003-04 or 2004-05 school years (Tr. p. 56), however, as discussed below, the CSE did consider the student's attention problems and formulated an appropriate educational plan to address this need.     Respondents' son has been described as happy, loving, charming, pleasant, upbeat, friendly child (Dist. Exs. 13 at p. 3, 15 at p. 1, 16 at p. 18; see Tr. p. 396).  However, the student has attention issues (Dist. Exs. 13 at p. 3, 15 at p. 3, 16 at p. 18).  The school psychologist testified that the student's attention difficulty was the primary behavior that needed to be addressed (Tr. p. 413).

            The private neuropsychologist who conducted the winter 2003-04 neuropsychological evaluation of the student reported that although the student's difficulty with sustained attention made formal testing a challenging task, he could often be redirected (Dist. Ex. 16 at p. 5). She also reported that the student's difficulty with attention was related to his autism spectrum disorder, and her lengthy recommendations did not include a recommendation that an FBA be conducted (Dist. Ex. 16 at pp. 18-20).

            The student's significant level of distractibility and inattention during the spring 2004 education evaluation was described by his special education teacher in her report (Dist. Ex. 10).  She also commented in her report that the student's performance on some aspects of the testing were not commensurate with his classroom performance because in the classroom he exhibited skills which he did not exhibit during the evaluation (Dist. Ex. 10 at pp. 2, 7).  She noted that in the classroom the teacher was able to remind the student to "take his time and apply his reading strategies" and that he demonstrated decoding strategies with teacher prompting and modeling in the classroom (Dist. Ex. 10 at pp. 2, 7).

            The occupational therapist who evaluated the student in May 2004 described in her report the student's difficulty in attending to tasks and his need for redirection during testing (Dist. Ex. 14). The speech-language pathologist stated in her evaluation report that the student "benefits from prompting and repetition of information" and "frequent fluctuations were seen in his attention," but he responded positively to praise and reinforcement that occasionally kept his attention during difficult questions (Dist. Ex. 13 at pp. 1, 3).

            An observation of the student in his classroom, conducted in May 2004, revealed the use of frequent prompts for attention and refocusing by the student's special education teacher and teaching assistant (Dist. Ex. 11 at p. 2).  The observation report stated that the student required 1:1 support during observed activities (Dist. Ex. 11 at p. 2).

            The student's July 9, 2004 IEP stated that the student's "[b]ehavior seriously interferes with his instruction due to frequent tuning out and inattention.  An additional adult such as a program assistant is needed" (Dist. Ex. 9 at p. 6).  Further, the student's IEP noted that the "[s]tudent is prone to internal and external distractibility" (Dist. Ex. 9 at p. 3).  Also, the student "has a very short attention span which impacts his acquisition of knowledge and ability to demonstrate his knowledge" with his "mind often transgress[ing] from the topic and assignment" (Dist. Ex. 9 at p. 4).  Further, the student "can become perseverative on memories, songs and topics or visualizations and requires and adult to assist him in refocusing on the appropriate activity in academic and social situations" (Dist. Ex. 9 at pp. 4-5). 

             Because the student's attention difficulty interferes with his instruction, as described in his July 9, 2004 IEP, the CSE was required to consider strategies, including positive 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 U.S. Department of Education discussed consideration of behavior as a special factor in discussing 34 C.F.R. § 300.346 [a] as reported in the Federal Register and noted that a CSE needs to be able to address the various situational, environmental and behavioral circumstances raised in individual cases and that if a CSE proactively addresses a child's behavior that impedes the child's learning or that of others in the development of IEPs, those strategies, including positive behavioral interventions, strategies and supports in the child's IEP will constitute the BIP (64 Fed. Reg. 12405, 12620 [1999]).

           In the instant case, not only did the CSE recognize that the student has attention difficulties by stating in the student's IEP that his "[b]ehavior seriously interferes with his instruction due to frequent tuning out and inattention," the CSE provided positive behavioral interventions, strategies and supports in the student's IEP, in part, by  recommending that "[a]n additional adult such as a program assistant is needed" (Dist. Ex. 9 at p. 6) because "[a]dult prompting is necessary to facilitate [the] student's attention and ability to sustain focus" (Dist. Ex. 9 at p. 2).  Thus, the student's July 9, 2004 IEP includes a recommendation for a program assistant for four hours per day in an integrated group setting with a 5:1 student to staff ratio (Dist. Ex. 9 at p. 1).  Further, the student's IEP states that the student needs "[c]ue[s] for attention" throughout the school day (Dist. Ex. 9 at p. 2).  Visual and auditory prompts were recommended to cue the student for attention and completion of tasks (id.).  The student's July 9, 2004 IEP indicates that he "needs adult prompting to help facilitate his activation of knowledge, recall of information and revive his focus" and that the student "responds to te[a]cher cues and encouragement" (Dist. Ex. 9 at p. 4).  The IEP further notes "[m]anipulatives and visual input (pictures), breakdown of instructions and verbal presentations into smaller pieces, repetition, and clarification [were] needed to ensure understanding and attention" (Dist. Ex. 9 at p. 5).

            In the July 9, 2004 IEP, the CSE characterized the student's difficulty with attention as having an impact on his academic performance:  "His ability to sustain reading often depends on attention, focus, level of engagement…" "His mental recall of basic (math) facts has vastly improved when he is attending to the task", and "[His] very short attention span impacts his acquisition of knowledge and ability to demonstrate his knowledge" (Dist. Ex. 9 at p. 4).  According to the student's mother, the student had received 1:1 program assistant services "in practice" all five years that he attended the petitioner's schools (Tr. p. 1230).  The director of special education and related services testified that the student did not have a 1:1 "aide" throughout the 2002-03 and 2003-04 school years; however, an aide was added to the student's program at an unspecified time due to "increasing concern about off-task attentional difficulties" (Tr. pp. 367-68).  Although the student's 2004-05 IEP recommended a 5:1 program assistant (Dist. Ex. 9 at p. 1), testimony from one of petitioner's special education teachers revealed that the student would have received 1:1 program assistant services during the 2004-05 school year (Tr. pp. 818-19).  The purpose of the 1:1 program assistant was to "bring him back to focus," "redirect his attention" to the general education teacher (Tr. pp. 1005, 1048), and promote on-task behavior and performance (Tr. p. 368).  The private neuropsychologist recommended that if the student were to be educated in a public middle school, he would need a program that provided an aide as well as a special education teacher (Dist. Ex. 16 at p. 19).  According to the private neuropsychologist, the student would also need an aide to "guide him through the day, help him organize his work, and assist him in navigating multiple classroom changes" (id.).  The CSE provided for both of these recommendations in the 2004-05 IEP (Dist. Ex. 9 at p. 1).

            Testimony from petitioner's school psychologist and director of special education and related services indicated that during the 2003-04 school year the student's "primary behavior that needed to be monitored was really with regard to attention" (Tr. p. 413) and that the "TA" (teacher assistant)⁵ addressed that need by refocusing the student and maximizing his engagement and participation in academic tasks and assignments (Tr. pp. 90, 413).  The school psychologist denied the presence of interfering behaviors other than the student's "attentional shifting" (Tr. p. 413).  The program assistant used verbal and visual prompts in order to assist the student in refocusing (Tr. pp. 442-43).  Petitioner's staff including the school psychologist and special education and general education teachers of the student during the 2003-04 school year testified that the prompting and cuing provided by the program assistant was successful in refocusing the student so he could benefit from instruction and that he was easily redirected (Tr. pp. 442-43, 462, 554, 711, 994-95).  Petitioner's director of special education and related services testified that the student did not need an FBA because the staff who worked with the student had the "tools" to respond to his inattention (Tr. pp. 122, 125, 128). The student's special education teacher testified that during 2003-04, "[w]e had social stories to address his attention in different areas.  He had prompting cards that he started with.  He had a chart that we kept his progress toward to reward him for good days.  And then he had cards similar to this to prompt him for routines.  He moved away from these and became very good at following the schedule on the board" (Tr. p. 992).

            The IEP also contained a variety of testing accommodations, and assistive technology devices to address the student's attention needs (Dist. Ex. 9 at pp. 2-3).  Recommendations made by the student's special education teacher in her spring 2004 educational evaluation report were incorporated into the student's testing accommodations including extended time for tests, repetition of directions, clarification of directions and simplification of language when giving directions, and frequent breaks (Dist. Exs. 9 at p. 2, 10 at p. 9).  The IEP recommended that the student use an inflatable seat cushion and other sensory supports as needed to assist in his self-regulation (Dist. Ex. 9 at p. 3).

            The IEP provided numerous program modifications that addressed the student's attention deficits (see Dist. Ex. 9 at pp. 2-3).  Many of these modifications were also recommended in the spring 2004 educational evaluation (compare Dist. Ex. 9 at pp. 2-3, with Dist. 10 at p. 9).  The IEP recommended that the student receive cues for attention, additional time to complete tasks, checks for understanding, preferential seating, refocusing/redirection, reteaching of materials, and scheduled breaks to allow the student to engage in sensory stimulation activities and use sensory supports in order to "regulate his attention" (Dist. Ex. 9 at pp. 2-3).  The IEP also calls for the use of manipulatives and visual input, breakdown of verbal information into smaller pieces and clarification in order to ensure understanding and attention (Dist. Ex. 9 at p. 5).  The IEP identified the student's preferred learning modality as auditory when attending, and stated that verbal, gesturing, modeling and physical prompts are needed (Dist. Ex. 9 at p. 7).

            Petitioner's staff, including the director of special education and related services, school psychologist, speech-language pathologist, and a special education teacher testified that they did not believe that conducting an FBA to address the student's attention needs was warranted because they were implementing strategies to address this behavior (Tr. pp. 127-28, 340-41, 367-68, 412-13, 827-28, 881).  Under the circumstances of this case, I do not disagree with their assessment.  If the strategies that the petitioner's staff were implementing during the school year were not working an FBA may have been warranted.  In addition, the student's mother testified that she participated in CSE meetings in May, June and July 2004 (Tr. pp. 1320).  Despite these opportunities, the record does not indicate that respondents requested that the CSE conduct an FBA prior to the impartial hearing request (see Dist. Ex. 1 at p. 2).  Given the CSE's history of compliance with parental requests (see Tr. pp. 53-55, 95), the overall record suggests that it would have conducted an FBA of the student if respondents had requested at a CSE meeting that one be conducted.

            In addition, at the impartial hearing respondent raised concerns regarding the lack of a systematic plan for reducing prompting and cuing which would result in an increase in the student's independence (Tr. pp. 140, 1024).  The impartial hearing officer shared that concern and his determination that the IEP denied the student a FAPE was based in part on the lack of plan to reduce the student's dependence on the 1:1 program assistant (IHO Decision, p. 37).  Although petitioner's staff reported that increasing the student's independence was a general goal (see Tr. pp. 138-142, 643, 952-954), his IEP does not include a separate specific "plan" to reduce reliance on the 1:1 program assistant or the level of prompting and cuing.  The record reflected, that the varying amounts of prompting and cuing within various program modifications that were offered, promoted his independence.  For example, the student was to use a daily schedule until routines were established and independently memorized (Dist. Ex. 9 at p. 2).  Color-coded charts and clearly labeled materials were recommended so that the student would require only minimal adult assistance (id.).  The student's special education teacher testified that in general, the student's independence was "fostered through his socialization and through following more directions toward becoming more independent with classroom routines and with acquiring his knowledge and making it his own" (Tr. pp. 954-55; see Tr. p. 138).

            The special education teacher identified on the student's IEP, specific short-term objectives where aspects of his reliance on teacher guidance was taken away (Tr. pp. 138-42, 956-58).  One of petitioner's special education teachers also testified that, while a student's present level of performance in a particular area may preclude writing an objective that the student could independently master at that time, other ways to promote independence were incorporated within the classroom, and strategies by which a student could work toward independence were built into classroom instruction even if those strategies were not written into an objective (Tr. pp. 867-68).  In addition, the CSE addressed the concern over the level of prompting required for the student by the addition to the 2004-05 IEP of team meetings with the parents every four to six weeks specifically to discuss the student's "progress toward goals and objectives, clarify progress made (i.e. materials used and levels of prompts needed)" (Dist. Ex. 9 at p. 2; Tr. p. 81).  Although an FBA may more specifically have identified situations where prompts/cues/need for 1:1 assistant could have been reduced or eliminated, the IEP as written identified the student's attention deficit, described it, and provided for a variety of strategies and program supports to address his inattention.

            Though not included on the student's IEP as behaviors that seriously interfered with instruction, other behaviors exhibited by the student during the 2003-04 school year were cited by respondent at the impartial hearing and included the student's use of noncontextualized, tangential speech, self-talk, and scripting behavior (Tr. pp. 327-28, 379, 482-84). The neuropsychologist who conducted the private neuropsychology evaluation of the student in December 2003 and January 2004 described this aspect of the student's behavior as a preoccupation with specific Disney movies and songs where he would ask questions about a movie or ask to sing a song from a movie in the middle of a task (Dist. Ex. 16 at p. 5).  Other examples included the student's repetition of things he had seen on television (Tr. pp. 483-84).  The director of special education and related services testified that the student's 2004-05 IEP addressed these behaviors through the recommendation for a program assistant, speech-language therapy services and psychiatric consultation (Tr. p. 347, 356-57, 379).  The student's 1:1 program assistant took the student to see the school psychologist during scripting episodes throughout the 2003-04 school year (Tr. p. 492); however, the frequency of scripting episodes which required intervention by the school psychologist decreased as the school year progressed (Tr. pp. 493-95).  The student's special education teacher testified that the student engaged in self-talk in the beginning of the 2003-04 school year; however, she "would just remind him that that was not appropriate and he stopped" (Tr. pp. 972-73).  The special education teacher also indicated that although the student attempted to engage staff in tangential conversation to avoid a task, she did not consider it an interfering behavior because she didn't let him deviate from the task (Tr. pp. 979-80).

            The school psychologist spent one half hour per week in the student's classroom during the 2003-04 school year (see Tr. pp. 410, 447-48), and did not report any occurrences of scripting behavior in the classroom (Tr. pp. 491, 503).  The student's general education teacher also testified that she had never observed the student engage in scripting during her lessons (Tr. p. 1048).  The student's speech-language pathologist testified that the occurrence of scripting was "rare" when she worked with him (Tr. p. 608) and that instructional time was not lost due to scripting (Tr. pp. 610-11).  The school psychologist testified that the special education teacher was experienced in "knowing what to do with scripting" and the interventions used by staff that instructed the student to address his scripting were working (Tr. p. 506).  The school psychologist further testified that an FBA for this behavior was not necessary because staff knew how to effectively intervene with scripting behaviors and if the procedures being utilized were not working and "appreciable gains" were not being made, an FBA would be conducted to determine what was being missed (Tr. pp. 505-06).

            The student's speech-language pathologist testified that she used the student's interest in pretending to be a movie character or talking about characters as part of speech-language therapy sessions (Tr. p. 611-14, 677-78).  She indicated that she used his imagination to work on speech goals; however, when the student's speech became academically inappropriate she would redirect him (Tr. p. 612).  She further reported that she managed the episodes of scripting with verbal redirection and that minimal instruction time was lost because "it never persisted for a long amount of time" (Tr. p. 613).  The speech-language pathologist testified that her use of positive reinforcement and redirection was successful in addressing the student's noncontextual speech (Tr. pp. 672-73).

            The school psychologist reported that the student engaged in non-reality or fantasy based speech (Tr. pp. 483-84).  The content of this type of talk was "disjointed" and varied, including stories that the student would "concoct" and that did not appear to have direction (Tr. p. 497).  The school psychologist described an incident in which the student's occupational therapy assistant came to see him because the student was engaged in this type of talk (id.).  The occupational therapy assistant transcribed the story, which the school psychologist characterized as extremely disconnected with no real plot (id.).  The school psychologist testified the student's program assistant brought the student to him during each occurrence of this behavior which occurred approximately four to six times during the spring 2004 (Tr. p. 499).  He testified that he never observed the student engage in fantasy speech in the classroom during the 2003-04 school year (Tr. p. 503).  The school psychologist testified that until any mental disorder was appropriately diagnosed, developing a BIP to address the student's fantasy speech would not be appropriate  (Tr. p. 540).  Due to the concern regarding a possible mental disorder, the CSE that convened on July 9, 2004 recommended a psychiatric consultation for the student (Dist. Ex. 9 at p. 1; Tr. pp. 540-41).  The school psychologist further testified that the frequency of the student's focus on "stories" during the 2003-04 school year did not rise to the level of warranting an FBA, due to its infrequency and inconsistent nature (Tr. pp. 417, 433).

            The director of special education and related services testified that the CSE discussed and considered a self-contained placement for the student; however, in his opinion the 2004-05 IEP appropriately maximized "mainstreaming opportunities" for the student (Tr. pp. 94-96).   He further stated that the respondents did not disagree with the LRE component of the proposed 2004-05 placement (Tr. pp. 122).  Other district staff testified that the program recommended on the 2004-05 IEP was an appropriate LRE for this student (Tr. pp. 363-64, 427-28, 822-23, 909-10, 1006-07, 1128-29).  The record reflects that the CSE considered the student's attention deficits, recommended specific supports and services which were incorporated into his IEP, and was able to in part, keep the student in the general education environment.

            At its July 9, 2004 meeting, petitioner's CSE considered appropriate strategies, including positive behavioral interventions and supports to address the student's attention deficits (see 20 U.S.C. 1414[d][3][B][i]; 34 C.F.R. § 300.346[a][2][i]; 8 NYCRR 200.4[d][3][i]), and developed an IEP which accurately reflected the results of evaluations that identified the student's needs, established annual goals and short-term instructional objectives related to those needs, and provided for the use of appropriate special education services in its creation of an IEP that was reasonably calculated to enable the student to receive educational benefits in the LRE.  Petitioner's decision not to conduct an FBA did not rise to the level of denying the student a FAPE (Application of a Child with a Disability, Appeal No. 05-076; Application of a Child with a Disability, Appeal No. 03-095; Application of a Child with a Disability, Appeal No. 03-036).  I also note that respondents were significantly involved in the development of the student's IEP (see Cerra, at 193).  Thus, I find that petitioner offered the student a FAPE for the 2004-05 school year.

Having determined that that petitioner offered the student a FAPE for the 2004-05 school year,⁶ the necessary inquiry is at an end and there is no need to reach the issue of whether Eagle Hill was an appropriate placement (M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134; Application of a Child with a Disability, Appeal No. 03-058).

            I have considered the parties' other contentions, and in light of my determination herein, further discussion is not necessary.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the impartial hearing officer be annulled insofar as it ordered petitioner to reimburse respondents for their son's tuition costs at Eagle Hill for the 2004-05 school year.