05-128

            Petitioners appeal from that part of the decision of an impartial hearing officer which determined that respondent provided a free appropriate public education (FAPE) to petitioners' son for the 2004-05 school year.  The appeal must be sustained in part.

            At the outset, two procedural matters related to the pleadings must be addressed.  First, respondent has raised an affirmative defense asserting that the appeal was commenced in an untimely manner and must be dismissed.  A petition for review to the State Review Officer must comply with the timelines specified in section 279.2 of the Regulations of the Commissioner of Education (8 NYCRR 279.13).  A petition for review shall be served upon the respondent within 35 days from the date of the decision sought to be reviewed (8 NYCRR 279.2[b]).  If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 35-day period (id.).  A State Review Officer may excuse a failure to timely seek review within the time specified for good cause shown (8 NYCRR 279.13).  The reasons for the failure to timely seek review shall be set forth in the petition (id.).

           The impartial hearing officer's decision is dated October 31, 2005.  The record reveals that the decision was served on petitioners by mail on November 1, 2005 (Pet. n.1).  On November 22, 2005, petitioners served respondent with a Notice of Intention to Seek Review, and on December 15, 2005 with the Petition for Review.  While the Notice of Intention was timely, the Petition for Review should have been served on respondent no later than December 12, 2005.¹  In their Petition, petitioners acknowledge their lateness and ask that their delay be excused due to a death in the family [an obituary notice is attached to the Petition].  Under the circumstances, I will excuse the delay and accept the petition (see, e.g., Application of a Child Suspected of Having a Disability, Appeal No. 02-085; Application of the Bd. of Educ., Appeal No. 00-034).

           Second, petitioners have submitted a ten-page annotated Reply to respondent's Answer containing many new allegations as well as responses to respondent's assertions.  Pursuant to State regulations, the scope of a reply is limited to any procedural defenses interposed by respondent or to any additional documentary evidence served with the answer (8 NYCRR 279.6).  Respondent's Answer included no additional documentary evidence and the one procedural defense raised, i.e., that the Petition was untimely, is not addressed in petitioners' Reply.  The allegations and responses contained in petitioners' Reply fall outside the scope of a reply and therefore will not be considered (Application of a Child with a Disability, Appeal No. 05-072; Application of a Child with a Disability, Appeal No. 04-064; Application of the Bd. of Educ., Appeal No. 02-076).

           At the time of the request for a hearing on January 8, 2005 (Dist. Ex. 26), petitioners' son was nine years old and was receiving educational services at home temporarily pursuant to an individualized education program (IEP) developed by respondent's Committee on Special Education (CSE) (Dist. Ex. 18).

          At approximately four years of age, petitioners' son was evaluated and found to possess behavioral characteristics indicating a diagnosis of Pervasive Developmental Disorder – Not Otherwise Specified (PDD-NOS) (Parent Exs. A, C).  Petitioners initially referred the child to respondent's CSE in 2001, when he was approximately five years old and was reportedly being home schooled with petitioners' three other children (Parent Exs. D, E, Y; see Tr. p. 52).  Petitioners' son was evaluated by the school psychologist, who determined that the child was of average to high average intelligence, with strengths in receptive and expressive language skills, finding that his true abilities were often not accurately reflected in test scores due to his disability (Parent Ex. E at p. 4).  The evaluator found the child's main weaknesses to be his intermittent resistance to speaking and following directions and his strong reactions to changes in his environment (Parent Ex. E at p. 5).  It was noted that the child was not yet toilet trained and sometimes exhibited self-stimulatory behaviors such as hand flapping (Parent Ex. E at pp. 2, 4).  An occupational therapy evaluation was conducted, which revealed that the child had delays in fine motor skills and some sensory integration difficulties (Parent Ex. F at p. 2).  The CSE classified the child as other health impaired (OHI) (see 8 NYCRR 200.1[zz][10]) and developed an IEP for the 2001-02 school year which originally placed him in a self-contained 12:1+4 Board of Cooperative Educational Services (BOCES) special education classroom located at Moreau Elementary School (BOCES BEARS) (Gonzalez Aff. Ex. 11; see Parent Ex. QQ), but after five days it became apparent that the child was too high functioning for that class (see Parent Ex. RR); after which the CSE placed the child in respondent's Karigon School in kindergarten class in the morning and in a 12:1+1 Language Concepts class in the afternoon with related services (speech, occupational therapy and counseling) and a shared aide (Gonzalez Aff. Ex. 14; see Parent Exs. RR, PP).  The 2001-02 IEP called for the child to gradually transition from home to school by increasing the amount of time spent in school each day (see Parent Ex. RR).  The district hired a private consultant who developed and implemented a plan to assist the child in his transition to school and in toilet training (see Parent Ex. G; Gonzalez Aff. Ex. 15).

           By the end of the 2001-02 school year, the child was averaging approximately three afternoons per week in school; however, attempts to increase that time and to attend kindergarten class in the mornings were unsuccessful (Gonzalez Aff. Ex. 21; see Parent Ex. TT), as were attempts to fully toilet train the child (Parent Ex. G; Parent Ex. TT at p. 2).  The school psychologist found that petitioners' son was very comfortable in the self-contained setting and fully participating academically and socially in the program, yet exhibited anxiety about participating in the larger kindergarten setting (Gonzalez Aff. Ex. 23).  The CSE determined that petitioners' son's academic skills, math skills and social skills were all at grade level and age-appropriate, although he continued to exhibit anxiety with new tasks and needed refocusing (Gonzalez Aff. Ex. 21).  Self-help and fine motor skills were still below grade level (id.).  The private consultant noted that petitioners' son exhibited a great deal of stress and anxiety related to going to school, especially after school breaks or illnesses, but that once he was at school the results were positive in that "he responds well to the structure and routines offered in his specialized classroom setting and appears to be enjoying the school experience once he is settled in there" (Parent Ex. G at p. 2; seeParent Ex. TT at p. 1).  The consultant reported that the child "participated in classroom activities, followed directions well and socialized with other children well with minimal coaching" (Parent Ex. G at p. 1).  The child's special education teacher reportedly agreed that once in school, petitioners' son was academically performing at grade level, which was "far above" the level of the other children in the self-contained 12:1+1 class, and was also functioning better socially than the other children (Parent Ex. K at p. 3; see also Parent Ex. TT).  She reportedly expressed a concern at the end of the school year that petitioners' son had begun to mirror some of the inappropriate behaviors of the other children, and recommended that he spend more time with typical peers (Gonzalez Aff. Ex. 21; see Parent Ex. K at p. 3).  Because of his resistance and anxiety issues about getting to school, petitioners' son qualified for and was offered extended year services by the CSE for the summer of 2002 (see Parent Ex. TT, UU).  Petitioners declined summer school services for 2002 (Parent Ex. WW at p. 1), and instead reportedly home schooled their son over the summer and attempted to take the child to private occupational therapy sessions, but the sessions were discontinued due to the child's travel stress (see Parent Ex. K at p. 3; Parent Ex. I at p. 5).

           On August 16, 2002, the CSE met to develop the child's educational program for 2002-03 (Parent Ex. WW; Gonzalez Aff. Ex. 32).  After reviewing several evaluations, the CSE changed the child's classification to a child with autism (Parent Ex. WW) (see 8 NYCRR 200.1[zz][1]).  The CSE recommended placing the child in a regular education first grade classroom in respondent's local elementary school for all academics, with 60 minutes per day in a 12:1+2 academic needs class for socio-emotional and academic support (Parent Ex. WW).  The 2002-03 IEP also included related services consisting of an individual aide, occupational therapy, and counseling once per week for 30 minutes "for behavior therapy including social skills, FBA [functional behavioral assessment] and BIP [behavioral intervention plan]" (Parent Ex. WW).  Petitioners responded by letter dated September 5, 2002 that they were rejecting the district's program and would be home schooling their son for the 2002-03 school year, and requested that the district provide special education and related services in their home (Parent Ex. XX; see Gonzalez Aff. Ex. 37).  Petitioners submitted a letter of intent to home school their son to the district (Parent Ex. DD).²  The CSE chair acknowledged petitioners' decision to home school their son for the 2002-03 school year and reminded petitioners that they must submit an Individualized Home Instruction Plan (IHIP) for each child that is home schooled, and offered to assist in its preparation (Parent Ex. YY).  Although petitioners later admitted they never submitted an IHIP for their son (see Parent Ex. BB), it appears from the record that petitioners provided instruction to the child at home during the 2002-03 school year (see Parent Ex. L at p. 4); the district offered to provide some additional related services in the home, but the record is unclear on what services the child actually received during the 2002-03 school year (see Gonzalez Aff. Exs. 39, 40).

            On June 24, 2003, the CSE met to discuss the child's educational program for 2003-04 (Parent Ex. ZZ).  The meeting was tabled following the approval of speech and occupational services in the home for summer 2003 (id.; see Parent Ex. AAA at p. 1).

            The CSE reconvened on August 13, 2003 to develop the child's 2003-04 IEP, but adjourned to allow petitioners to visit several possible placements (see Parent Ex. AAA at pp. 1-2).  During the 2003-04 school year the CSE met several more times to develop the child's program for the school year, but the parties disagreed on the appropriate placement (see Parent Ex. AAA at pp. 1-3).  Petitioners submitted letters from the child's pediatrician and one of the child's therapists which recommended that the child be placed in a classroom no larger than 6:1+2 with an individual aide (see Parent Exs. M, N).  The school staff on the CSE recommended the child be placed in second grade in the self-contained 12:1+3 academic needs classroom at respondent's local elementary school as the most appropriate placement (see Parent Ex. AAA at p. 2).  Additional evaluations were also conducted, including an academic assessment on October 24, 2003 by the school psychologist (Parent Ex. O) in which standardized testing revealed that the child was reading at grade level (second grade), and that his math skills were at the first grade level (seeParent Ex. AAA at p. 2; Parent Ex. O).  The district attempted to contract with a behavior consultant to begin formulating a plan to transition the child into the school program, but petitioners refused this service (Gonzalez Aff. Ex. 45; E.H. Aff. Ex. PA 14).  While the parties continued to work on developing an IEP throughout the 2003-04 school year, it appears from the record that the child continued to remain at home with the district providing some speech and occupational therapy services to the child at home (Parent Ex. AAA at pp. 2-3; Parent Exs. P).

            The CSE met on February 6, 2004 and developed a 2003-04 IEP that placed the child in second grade, in the 12:1+3 academic needs class at respondent's local elementary school, with related services consisting of occupational therapy, speech/language therapy, and a behavior intervention consultation three times per month (Parent Ex. AAA at p. 3).  The 2003-04 IEP provided for extended time for testing and numerous program modifications to reduce distractions and provide individualized supports for the student (id. at p. 4).  Goals and objectives were provided in the areas of reading, writing, mathematics, speech/language and motor skills (id. at pp. 8-11).  Extended year services of occupational therapy and speech/language therapy were offered during the summer (id. at p. 3).  Although it was noted that the child still had severe anxiety about returning to school (id. at p. 7), there were no goals and objectives pertaining to this, and no transition plan, or provision for an FBA or BIP was included in the IEP; instead it was stated that the behavioral consultant would work with petitioner's son, petitioners, and school personnel on a plan to transition the child back to school (id. at p. 3).  There was no provision for an individual aide (id. p. 3).  Petitioners disagreed with the recommended placement and rejected the person designated on the IEP whom they had previously agreed would serve as the behavior consultant (id. at pp. 2-3).  At or about the same time, petitioners also rejected the services of their son's speech therapist and asked the district to locate a new speech therapist (Parent Exs. BBBB, CCCC, DDDD, EEEE, FFFF).  By letter dated May 10, 2004, petitioners ultimately rejected the 2003-04 IEP and requested a due process hearing (Parent Ex. FF; Gonzalez Aff. Ex. 46).  An impartial hearing (Hearing 1) began and lasted over the course of the next several months (see E.H. Aff. ¶ 22; Tr. pp. 31-32).  Over the summer of 2004, the child reportedly continued to receive occupational and speech therapy services, each provided at home by the district five times every two weeks in 60 minute sessions (see Dist. Ex. 16 at p. 4; see Tr. p. 966), as specified in the August 19, 2004 IEP (Dist. Ex. 10 at p. 5).

    While Hearing 1 was proceeding, on August 9, 2004 the CSE met to draft the child's educational program for 2004-05 (Parent Ex. CCC).  Prior to the meeting, petitioners submitted to the CSE two recent letters from the child's psychiatrist recommending the child be placed in a small, supportive environment with minimal stimuli (Dist. Ex. 4 at pp. 3-4).  Petitioners also submitted recent written recommendations from the child's occupational therapist, who recommended various equipment for the classroom, that the child have a 1:1 aide throughout the day to help with sensory integration problems, and that the child be placed in a small class, which she defined as less than ten children with similar needs, with a safe quiet place to go when overwhelmed (Dist. Ex. 4 at pp. 5-6).  The occupational therapist drafted goals and objectives for the child (Parent Ex. CCC at p. 8).  Three specific persons were suggested to the parents to serve as the behavior consultant (id. at p. 8).  The meeting notes reveal that the CSE chair asked petitioners if it was their intent to file an IHIP and home school their child for the 2004-05 school year, in which case she stated the district would support them with special education and related services in the home while providing a behavioral specialist to work with them to create a transition plan back to school (id. at p. 8).  The meeting was tabled in anticipation of receipt of an additional independent educational evaluation (IEE) from the parents' expert, and to allow petitioners to work with the child's speech and occupational therapists to draft and update the child's present levels of performance (id. at p. 8; see also Parent Ex. HH; Dist. Ex. 9).

 

The CSE reconvened on August 19, 2004 to review and finalize the 2004-05 IEP for the child (Dist. Ex. 10).  The resultant August 2004-05 IEP described the child's present levels of performance, as derived from evaluations, in great detail and included the following information (id. at pp. 5-10).  Petitioners' son was described as having strong verbal skills, but a weakness in interpreting complex sentence structure (id. at p. 7).  He was described as a concrete learner who interprets language literally, which often negatively impacts on his social and written communication skills (id. at pp. 7, 8).  Information needs to be provided sequentially and slowly and tasks need to be broken down into steps to allow processing (id. at p. 10).  It was noted that the last academic assessment conducted by the district revealed weaknesses in pragmatics and phonemic awareness skills (id. at p. 7).  While the child displayed average abilities in gross motor skills, he reportedly showed weaknesses in fine motor, grapho-motor and motor planning abilities (id. at pp. 9, 7).  Sensory integration problems were also noted (id. at p. 8).  He was described as awkward in social settings, easily frustrated and overwhelmed by verbal and auditory stimuli, and as requiring a significant amount of time to transition to new events or changes in his environment (id. at p. 8).  His needs required a "predictable, consistent, quiet environment with minimal distractions" (id. at pp. 5, 10), with a separate private place to go for breaks (id. at p. 9), as recommended by the occupational therapist.  The IEP described in detail adaptive devices, equipment and various other items recommended by the occupational therapist to be provided in the classroom (id. at p. 6).  To address his phonemic needs, the IEP recommended that the child receive 1:1 instruction in a computer-based phoneme awareness program on a structured, consistent basis (id. at p.10).  Relationships with staff were to be developed gradually and systematically to build his comfort level (id. at p. 10).  In addition, it was noted that he exhibited delayed self-help skills, and still required some assistance in toilet training and dressing (id. at p. 9).

 

The August 2004-05 IEP continued to classify the child as a child with autism and the CSE recommended the child be placed in the third grade in the self-contained 12:1+2 academic needs classroom in respondent's local elementary school (Dist. Ex. 10 at p. 4).  Recommended related services consisted of an individual aide (as recommended by the occupational therapist), individual occupational therapy three times per week for 60 minutes, an occupational therapy consultation once per week for 30 minutes, individual speech/language therapy five times every two weeks for 60 minutes, and a behavior intervention consultation three times per month (id. at p. 4).  The IEP specified that the related services would be provided in the home until the transition plan was complete and the child was successfully transitioned back into school (id.).  The IEP also added consultant teacher services in the home for two hours per week, which were to cease when the child entered school (id.).  The IEP stated that the behavior consultant would work with the parents, service providers, and the school to develop the child's transition plan, FBA and BIP to ensure the child's "successful transition to and participation in school" (id. at p. 5).  No timeline was set for the development of the FBA, BIP or transition plan.  The 2004-05 IEP also included one goal and four objectives in reading (related to reading comprehension), two goals and six objectives in writing (related to spelling and sentence construction), two goals and two objectives in math (related to telling time and money skills), five goals and twenty objectives in speech/language (related to social skills, verbal communication, and phonemic awareness), five goals and eighteen objectives in motor/occupational therapy (related to keyboarding, handwriting, sensory tolerance, eating and dressing), and one goal and three objectives in daily living skills (related to independent toileting skills) (id. at pp. 11-14).  Extended year services over the summer consisted of individual occupational therapy five times every two weeks for 60 minutes and individual speech/language therapy five times every two weeks for 60 minutes (id. at p. 5).

 

The August 2004-05 IEP also provided for 1.5 extended time for tests, and numerous program modifications including preferential seating consisting of assorted pillows, floor mats, swivel chairs and therapy balls to allow movement; additional time to complete tasks and tasks broken down into segments; classroom physically arranged to reduce distractions and stimulus overload; simplified directions and assignments; allow for verbal responses instead of written; give choice of two acceptable activities and let petitioners' child choose; provide errorless teaching techniques; provide individual instruction when teaching new tasks; require 1:1 aide during small group instruction; increase demands from low to high; use forward/backward chaining for new activities; minimal verbal directions; use of daily visual schedules with minimal auditory cues; assistance with fine motor/self help skills; avoid punitive measures that produce anxiety; and allow extra processing and response time (Dist. Ex. 10 at pp. 5-6).  The following assistive technology was also included: keyboarding software, access to computer for most written work and assignments, memory enhancement software to learn phonemes (Earobics), enlarged textured build ups on writing utensils, sensory seat cushions, heavy pillows, and large bean bag chair (id. at p. 6).  Other supports written into the IEP included aide training and monthly team meetings with the parents and staff (id.).  To further help address the child's sensory integration needs, the IEP indicated that all of his instruction would be provided in the same room with all therapies pushed in to the classroom except for adaptive physical education (id. at 9).  Although the IEP included many statements describing the child's sensory diet (see id. at pp. 5-6), it also stated that a separate sensory diet and an FBA/BIP to transition the child back into school would be attached to the IEP as soon as they were completed (id. at pp. 5, 10).

 

Petitioners disagreed with the August 2004-05 IEP and placement recommendation for their son, but agreed to and chose one of the three suggested behavior consultants to evaluate their son and to develop an FBA, BIP and transition plan for their son (Dist. Ex. 15; Tr. pp. 42, 325), and agreed to the provision of occupational, speech, and consultant teacher services in the home (Tr. pp. 969-70).  They also agreed that the CSE should reconvene upon completion of the pending IEE neuropsychological evaluation to consider the additional information provided and, if appropriate, revise the child's IEP (id.; Dist. Ex. 15).  The CSE hired and trained an individual aide in anticipation of petitioners' son's return to school (Tr. pp. 44-45, 61, 163-64).

 

Beginning in September 2004, the district provided individual occupational therapy three times per week for 60 minutes and individual speech therapy five times every two weeks for one hour to petitioners' son in the home, as per the August 2004-05 IEP (Dist. Ex. 10; see Tr. p. 665; see also Tr. pp. 547-48).  In addition, the district began providing consultant teacher services to petitioners' son in the home for two hours per week (Tr. pp. 405-06) as provided in the August 2004-05 IEP, but the amount of consultant teacher services petitioners' son actually received is difficult to determine from the record, and many of the sessions were reportedly cancelled by petitioners (see Dist. Ex. 24; Tr. pp. 451-52, 463, 522, 535-36, 852).  A speech/language evaluation was conducted by the child's speech therapist in October 2004 which indicated the child had a significant delay in phonemic awareness and auditory conceptualization skills, placing him at the beginning first grade level, which impacted his ability to develop reading, decoding, encoding and spelling skills (Parent Ex. U).  The evaluator strongly recommended participation in a structured auditory conceptualization program (id.).  Progress reports were completed by the consultant teacher in November indicating that the child had made some progress on a few IEP goals and objectives (Parent Ex. HHH).  Although the August 2004-05 IEP stated that the behavior consultant would meet with the family three times per month, after an initial one hour meeting with the consultant on September 13, 2004 (Tr. p. 116), no consultant appeared at petitioners' home until November 9, 2004, after which a consultant visited the home to observe petitioners' son and speak with petitioners and the child's service providers a total of 3-4 times between November 9, 2004 and December 22, 2004 (Parent Ex. TTTT; Dist. Ex. 23 at p. 2; Tr. p. 916; see also Dist. Ex. 20; Tr. pp. 170, 120, 148-49, 153, 155-56, 478, 606, 746-47, 911, 913-14).  The record indicates that various meetings occurred between September and January which included at different times various combinations of petitioners, the child's service providers, the CSE chair, the behavior consultant and the school staff, but it is unclear whether or not these meetings contained the proper persons to constitute the monthly "team" meetings prescribed in the August 2004-05 IEP, at least until December 2004 (Dist. Exs. 25, 27, 20; see Tr. pp. 180-81 193-95, 298-99, 716, 721, 730, 862, 937; see Dist. Ex. 10 at p. 10).

 

On November 15, 2004, the impartial hearing officer rendered a decision in Hearing 1 finding that the prior year's 2003-04 IEP developed by respondent's CSE offered petitioners' son a free appropriate public education (FAPE).  Petitioners timely appealed that decision to the State Review Officer (see Application of a Child with a Disability, Appeal No. 04-110).

 

On November 16, 2004, petitioners received the IEE neuropsychological report, forwarded a copy to the CSE, and requested that the CSE meet to review the child's 2004-05 IEP in light of the IEE's recommendations (Parent Ex. V; Dist. Ex. 16).  The IEE detailed results from a comprehensive array of testing and observations conducted on petitioners' son over the course of several months (Dist. Ex. 16).  The evaluator compared the results to previous testing and concluded that the child's academic achievement was unchanged from the last IEE neuropsychological report obtained by petitioners in September 2002; however she noted that while the district's academic assessment in October 2003 suggested average skills in spelling and math, her results indicated that the child was not making expected gains in these areas, while his reading skills continued to advance  (Dist. Ex. 16 at p. 8).  Strengths were noted in receptive vocabulary, auditory attention and visual scanning skills (Dist. Ex. 16 at p. 12).  Weaknesses were noted in executive functioning, communication, daily living skills and socialization (Dist. Ex. 16 at p. 9), as well as spelling, decoding, abstract reasoning, and math skills (id.).  Observed behaviors were consistent with prior evaluations and included poor eye contact, self-stimulatory behaviors (rocking, spinning, jumping, pinching fingers),³ literal use of language, lack of understanding of social cues, resistance to change and sensory integration problems (Dist. Ex. 16 at pp. 9-11).  Notably, the evaluator found no evidence of anxiety disorder and stated the child "no longer has difficulty separating from his parents" (Dist. Ex. 16 at p. 11).  The evaluator diagnosed the child with "high functioning" autistic disorder (Dist. Ex. 16 at pp. 11, 13).

 

At the end of her report, the neuropsychologist made 33 specific recommendations, including recommending the child's needs "would be best served in a small (6:1+1) structured classroom with other children with high functioning autism" (Dist. Ex. 16 at p. 13); however, she stated that if such a class did not exist, she recommended that the child be home schooled and that the district provide related services of speech, occupational therapy, consultant teacher services, and social skills training in the home (Dist. Ex. 16 at p. 13).   Many of her recommendations were already included on the 2004-05 IEP (see Dist. Ex. 10; Tr. pp. 53-59; see also Tr. pp. 289-294); for example, she recommended that his instruction be sequential and structured (Dist. Ex. 16 at p. 14; Dist. Ex. 10 at p. 7), delivered in a calm, predictable environment in a classroom with minimal distractions (Dist. Ex. 16 at pp. 14-15; Dist. Ex. 10 at p. 5), with the use of visual cues, tasks broken down into smaller segments, simplified directions, and allowance for breaks (Dist. Ex. 16 at pp. 14-15; Dist. Ex. 10 at pp. 5-6).  She recommended that all staff working with petitioners' son be trained in autism (Dist. Ex. 16 at p. 15; Dist. Ex. 10 at p. 10).  She also recommended an FBA from which to develop a plan to gradually introduce the child to school and lengthen the school day, and that petitioners receive consultation services from an autism specialist to help them reinforce and promote the child's education and appropriate behavior (Dist. Ex. 16 at pp. 13, 14; Dist. Ex. 10 at pp. 4-5).

 

On December 14, 2004 the CSE reconvened to review the IEE in relation to the August 2004-05 IEP's goals and objectives and to check the development of the child's FBA (Dist. Ex. 18; see Parent Exs. KKK, LLL; Tr. p. 62); a revised December 2004-05 IEP was created (Dist. Ex. 18).  At the meeting, the school psychologist reviewed the IEE with the CSE (Tr. pp. 290, 292; seeDist. Ex. 18 at p. 4), and the behavior consultant discussed the development of the FBA (Tr. pp. 178-79, 182, 270; see Dist. Ex. 18 at p. 4).  The CSE increased the child's speech/language services to three times per week for 60 minutes, and added some information from the IEE to the narrative on the child's present academic levels of performance, as well as added the child's test scores on a variety of standardized tests administered as part of the IEE (Dist. Ex. 18 at pp. 5, 7, 8).  The meeting was adjourned until January 12, 2005 to allow additional time for compiling the FBA, and for goals and objectives to be further revised by petitioners and the child's service providers (Dist. Ex. 18 at p. 4; Tr. p. 270).  At the end of this meeting, the consultant began drafting the first version of the FBA (Tr. pp. 159, 182; see Parent Ex. W).

 

On December 16, 2004 the behavior consultant met with the child's proposed individual aide to discuss the child's daily behavior plan (Dist. Ex. 25; Tr. pp. 163-64); the next day the two met with the school psychologist, the child's occupational therapist, the special education teacher who was teaching the 12:1+2 class, the CSE chair, and the principal to further discuss the child's behavior plan in the context of his academic program (Dist. Ex. 25), as well as to begin discussing his transition plan (Tr. pp. 251-54).  On December 21, 2004 petitioners met with the child's occupational and speech therapists, and his consultant teacher to revise the goals and objectives, especially in math and social skills, based on the new information contained in the IEE (see Dist. Ex. 25; Parent Ex. MMM-A; Tr. pp. 446-448, 586-89, 592, 725-31, 739, 870-71, 897).  On January 4, 2005, petitioners met with the child's occupational and speech therapists, consultant teacher, school psychologist, individual aide, the special education teacher teaching the 12:1+2 class, the CSE chair, and the principal to review the revised goals and objectives, to review the first draft of the FBA, and for petitioners to ask questions regarding the operation of the classroom (Dist. Ex. 25; Parent Ex. MMM-B; Tr. pp. 732-33, 740, 875).  On January 5, 2005, petitioners notified the CSE that they were rejecting the FBA and requested reimbursement for an independent behavior consultant to complete a new FBA, as well as a BIP and transition plan (Parent Ex. NNNN); they later submitted a ten-page letter to the CSE outlining their objections to the FBA (Dist. Ex. 23).  Petitioners also requested consultant teacher services be provided in the home on a daily basis, instead of two hours per week (Dist. Ex. 24).

 

By letter dated January 8, 2005, petitioners rejected the CSE's recommended 2004-05 educational program for their son and requested an impartial hearing (Dist. Ex. 26) (Hearing 2).  On January 12, 2005 the CSE met to work on revising the goals and objectives on the child's December 2004-05 IEP; petitioners were unable to attend this meeting (Dist. Ex. 21; Parent Ex. QQQ; Tr. p. 834).  On January 16, 2005 petitioners refused the services of the consultant teacher assigned to their son and requested a different teacher (Parent Exs. JJJJ, IIII, LLLL; Dist. Ex. 35).  The CSE attempted to reconvene on January 19, 2005, but petitioners again notified the CSE that they were unable to attend (see Dist. Ex. 32; Parent Exs. MM, SSS at p. 12; Tr. p. 834); copies of draft IEPs from the January meetings were delivered to petitioners (see Parent Exs. PPP, RRR, SSS at p. 1; Tr. p. 876).  The CSE chair offered to schedule a team meeting with petitioners and the consultant to address petitioners' concerns with the FBA (Dist. Ex. 28), but petitioners initially declined to attend (Dist. Ex. 29).  The consultant did eventually meet with petitioners and the child's service providers to discuss their concerns with the draft FBA (see Tr. pp. 62, 327, 779-81, 928, 977) and a revised version of the FBA was completed on January 28, 2005 (Dist. Ex. 36; Tr. pp. 106, 160, 182-184).

 

On February 2, 2005, the CSE met, with petitioners in attendance (see Dist. Ex. 38), and revised the 2004-05 IEP (Dist. Ex. 37; see Parent Ex. TTT).  The recommended placement, services, and present levels of performance remained the same as in the December 14, 2004 IEP (compare Dist. Ex. 37 with Dist. Ex. 18), but the following revisions/additions were made: (1) a new definitive deadline of March 31, 2005 was added for termination of home services and completion of the child's transition back into the school-based program (Dist. Ex. 10 at p. 5); (2) statements were added explaining the extent of non-participation in regular education classes, how the child's disability affects his participation in the regular education curriculum, that the child would not be foreign language exempt, that the child would participate in state assessments, and a list of other placement options that were considered and rejected by the CSE (Dist. Ex. 37 at pp. 7-8); and (3) goals and objectives were modified to add a new reading goal and two objectives, a new writing goal and objectives, a new math goal and objectives, and a new section on social/emotional behavior which included 5 goals and 14 objectives, one of which stated that the child would begin to visit the school outside regular hours before January 31, 2005 in order to begin transitioning back into the school (Dist. Ex. 37 at pp. 12-15).  Petitioners claimed that the goals and objectives contained in the final IEP were not the same as the ones they helped draft (see Dist. Ex. 41 at p. 3).  On February 21, 2005, petitioners submitted to respondent a six-page letter entitled "Amendment to Due Process Hearing Request of 1/8/05" (Dist. Ex. 41) with additional claims regarding the alleged denial of FAPE for their son for the 2004-05 school year.  On February 24, 2005 the behavior consultant submitted to the CSE her final version of the child's FBA (Dist. Ex. 43).

 

Prior to the start of Hearing 2, the impartial hearing officer requested each party submit briefs on the child's pendency placement, and on March 15, 2005 the hearing officer rendered an interim decision finding that the child's pendency placement for the duration of the proceedings was in the home, with the district providing individual occupational therapy services three times per week for 60 minutes, individual speech/language therapy services for three times per week for 60 minutes, and consultant teacher services for two hours per week (IHO Pendency Decision).  Hearing 2 commenced on March 16, 2005, and was held over the course of six separate hearing dates, concluding on August 11, 2005.

 

While Hearing 2 was progressing, on April 25, 2005 the State Review Officer rendered a decision upholding the impartial hearing officer's determination in Hearing 1 that the district had offered a FAPE to petitioners' son in the IEP developed for the 2003-04 school year (see Application of a Child with a Disability, Appeal No. 04-110).  In so doing, the State Review Officer determined that the recommended 12:1+3 placement was appropriate for petitioners' son for the 2003-04 school year (id.).⁴

 

On October 31, 2005, the impartial hearing officer in Hearing 2 rendered his decision finding that the 2004-05 IEP developed by respondent's CSE provided a FAPE to petitioners' son in the least restrictive environment (LRE).  Nevertheless, he went on to find that the final assessment created by the consultant was unfinished and incomplete because the FBA contained several hypotheses for the child's behavior instead of one final hypothesis, and because no BIP or transition plan was ever created (IHO Decision, p. 14).  The impartial hearing officer granted petitioners' request for an order for an independent FBA at the district's expense and ordered the district to develop a BIP and a transition plan for the child's transition from home to school within 30 days of receipt of the independent FBA.

 

Petitioners appeal that part of the impartial hearing officer's decision which determined that respondent provided a FAPE for petitioners' son for the 2004-05 school year.  They allege numerous procedural and substantive inadequacies in the 2004-05 IEPs, and request that the State Review Officer order, inter alia, that the CSE develop a new program and placement, that the child's special education teacher be trained and experienced in autism, that a behavior consultant trained in autism meet with staff and parents three times per month, new independent occupational and speech evaluations, a complete records inspection for petitioners, 900 hours of "corrective education services (academic instruction)" for the child (Pet. at p. 20), reimbursement for all hearing and appellate costs, and appointment of a mutually agreeable third party liaison to oversee the orders.  Neither party appeals the impartial hearing officer's order for an independent FBA, therefore that part of the decision is final and binding (see 20 U.S.C. § 1415[i][1][A]; 34 C.F.R. § 300.510[a]; 8 NYCRR 200.5[i][4][v]; see, e.g., Application of the Bd. of Educ., Appeal No. 05-092).

A purpose behind the Individuals with Disabilities Education Act (IDEA)⁵ (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]).  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written individualized education program (IEP) (20 U.S.C. § 1401[8][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).  A FAPE is offered to a student when the board of education (a) complies 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]).  The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

A CSE is required to review, and if appropriate, revise a student’s IEP periodically but not less than annually (20 U.S.C. § 1414[d][4][A]; 34 C.F.R. § 300.343[c]; 8 NYCRR 200.4[f]; Application of a Child with a Disability, Appeal No. 04-071).  Whether the CSE meets for an annual review or a periodic review and revision of a student's IEP, state regulations direct that the district must arrange for the provision of an appropriate special education program and services within 60 school days of the referral for review to the CSE (8 NYCRR 200.4[d], [e][1]; seeApplication of the Bd. of Educ., Appeal No. 01-012).  Once the necessary services and supports are determined, there can be "no delay" in implementing an IEP (34 C.F.R. § 300.301[c]; 8 NYCRR 200.4[e][1][i]; see Application of a Child with a Disability, Appeal No. 04-008.  The U.S. Department of Education has interpreted the IDEA to instruct that "The [CSE] should work toward consensus, but the public agency has the ultimate responsibility to ensure that the IEP includes the services that the child needs in order to receive FAPE" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section II, Question 9; see Letter to Simon, 211 IDELR 436 [1987]; Application of a Child with a Disability, Appeal No. 04-093; Application of a Child with a Disability, Appeal No. 00-084 [a CSE must recommend an appropriate program on a timely basis]).

The use of temporary interim placements pending implementation of a final IEP is contemplated in the official commentary to the federal IDEA regulations.  Pursuant to 34 C.F.R. § 300.342(b)(1), an IEP must be in effect before special education and related services are provided to an eligible child.  In the official commentary interpreting this provision, the U.S. Department of Education states "this requirement does not preclude temporarily placing an eligible child with a disability in a program as part of the evaluation process—before the IEP is finalized—to assist a public agency in determining the appropriate placement for the child.  However, it is essential that the temporary placement not become the final placement before the IEP is finalized" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 14).  To ensure that the temporary placement does not become the child's final placement, the Department of Education recommends that districts do the following: develop an interim IEP with specific conditions and timelines, ensure that the parents agree to the interim placement before it is carried out and that they are involved in the development process, set a specific timeline, e.g. 30 days, for finalizing the IEP, and conduct an IEP meeting at the end of the interim period to finalize the IEP (id.; see Application of a Child with a Disability, Appeal No. 03-050).

In the instant case, all of the professionals involved with petitioners' son, as well as the school staff members of the CSE and petitioners themselves, agreed that the nature of petitioners' son's disability required that he have a transition plan developed in advance to successfully transition him from the home environment to a school-based program (Parent Ex. N [child's pediatrician]; Parent Ex. T [child's psychiatrist]; Dist. Ex. 16 at p. 14 [IEE evaluator]; Tr. pp. 771-72 [child's occupational therapist]; Tr. p. 623 [child's speech therapist]; Parent Ex. K at p. 9 [IEE Neuropsychologist, 2002]; Parent Ex. M [Independent Psychologist, 2003]; Tr. pp. 987-89, 818, 824-25, 908 [Parent]; Tr. pp. 40, 264 [CSE chair]; Tr. pp. 97-98, 204 [FBA behavior consultants]; Dist. Ex. 10 at pp. 4-5, Dist. Ex. 18 at p. 5, Dist. Ex. 37 at p. 5 [2004-05 IEPs]).  Some of the reasons given for requiring a transition plan were that petitioners' son had difficulty with any changes in his environment or routine (see, e.g., Parent Ex. N; Tr. pp. 136, 97-98, 819), that he had significant sensory integration problems which caused him to become easily overwhelmed and to withdraw when over stimulated (see, e.g., Parent Ex. T; Dist. Ex. 16 at p. 14; Tr. pp. 757, 782, 784), and the fact that the child had not been in a school-based program for over two years (see Tr. pp. 115, 99-100).  Hence, a transition plan was a necessary predicate to the implementation of the CSE's recommended school-based program.

The child's August 19, 2004 IEP, and all subsequent 2004-05 IEPs, included an explicit statement that the district would provide petitioners' son with an FBA and a BIP, which would serve as the basis of "a plan to successfully transition [petitioners' son] to [respondent's] school" (Dist. Ex. 10 at p. 4; Dist. Ex. 18 at p. 5; Dist. Ex. 37 at p. 5).  The August 2004 and December 2004 IEPs contained no deadline for the interim home instruction plan (see Dist. Exs. 10, 18).  Because the CSE decided that an FBA and BIP needed to be done prior to the transition plan, these evaluations had to be completed before the recommended school-based placement and services could be implemented, and the recommended placement and services had to be implemented without delay after the August 19, 2004 CSE meeting (see 34 C.F.R. § 300.301[c]; 8 NYCRR 200.4[e][1]).  The final version of the district's FBA was not completed until February 24, 2005, and the most recent IEP in the record projected an end date of March 31, 2005 for the completion of the child's BIP and transition plan (Dist. Ex. 37 at p. 5).  Due to the fact that the child would necessarily remain home, in a more restrictive environment (see Application of a Child with a Disability, Appeal No. 04-071; Application of a Child with a Disability, Appeal No. 02-055) until a transition plan was developed, it was incumbent upon the district to ensure that the assessments specified in the IEP were completed without delay, as expeditiously and timely as possible, so that the child could access the recommended in-school placement and program for the 2004-05 school year.  This the district failed to do.  While the U.S. Department of Education's commentary suggested a short deadline be set for interim placements such as 30 days so as to avoid the temporary placement becoming the final placement, the district initially failed to set any deadline for the child's "temporary" home instruction program, and when it finally did, it was set for March 31, 2005, at which point the child would have been in the "temporary" home instruction program for 7 months out of the 9 1/2 month school year (see Dist. Ex. 37 at p. 5), which is far from temporary.⁶   The length of the delay in conducting the FBA and in developing a transition plan resulted in a failure to timely implement the appropriate school-based placement, which amounted to a denial of FAPE.

From September through December 2004, contrary to the provision in the child's August 19, 2004 IEP that called for three behavioral consultations in the home per month to develop the FBA (see Dist. Ex. 10 at p. 4), the record reveals that a behavior consultant visited petitioners' home once in September, no times in October, and 3-4 times between November and December (Tr. pp. 116, 120, 148-49, 913, 915-16).  Petitioners, unlike prior years, cooperated with the behavior consultants, made their son available for all visits, and in fact were the ones to contact the consultant early in October 2004 to inquire as to why they were not receiving services three times per month as stated in their son's IEP (see Tr. pp. 913-14, 97, 148-49, 152-53; Parent Ex. TTTT).  While the record shows that the CSE chair was in contact monthly if not weekly with either petitioners, the child's service providers, and/or the behavior consultant, and was well aware that the child was still at home (see Dist. Exs. 25, 27, 20; Tr. pp. 298-99, 716, 721, 730; see Dist. Ex. 10 at p. 10), there is nothing in the record to indicate that any efforts were being made by the district during this time period to expedite the child's FBA, BIP and transition plan so as to implement the recommended school-based placement in a timely manner.  Although petitioners testimony and past behavior suggested that they were intent on rejecting the recommended placement if the results of the FBA continued to recommend a 12:1+2 placement (Tr. pp. 910, 912, 970, 957, 395-96; Dist. Ex. 41 at p. 2), a CSE cannot avoid its obligation to timely implement a placement recommendation simply because of a parent’s expressed unwillingness to accept a placement (Union School Dist. v. Smith, 15 F.3d 1519, 1526 [9th Cir. 1994]; Application of the Bd. of Educ., Appeal No. 01-012; see Teresa P. v. Gold Trail Union Sch. Dist., 56 Fed. Appx. 431 [9th Cir. 2003]; Knable v. Bexley Cent. Sch. Dist., 238 F.3d 755, 765, 758 [6th Cir. 2001]; see also Wolfe v. Taconic Hills, 167 F.Supp.2d 530, 535 [N.D.N.Y. 2001] [parents who do not thwart the district's efforts to comply with the IDEA cannot be blamed for district's failure to properly perform its obligations under the IDEA]).  Ultimately, it is the district's responsibility to provide a FAPE (20 U.S.C. § 1412[a][1]; 34 C.F.R. § 300.300[a][1]; see Florence Co. Sch. Dist. Four v. Carter, 510 U.S. 7, 15 [1993]; Rowley, 458 U.S. at 206-07).  I must conclude in this instance that despite the CSE’s good faith effort to devise a suitable placement for the child, it failed to meet its legal obligation to implement the IEP and provide the necessary services in a timely manner (see Application of the Bd. of Educ., Appeal No. 01-012).  While the child was in the "temporary" home instruction program, he was only receiving two hours of academic instruction per week, which is inconsistent with the requirements for children who are recommended for home instruction (see 8 NYCRR200.6[h][1]).  Without the development of a timely transition plan to implement the recommended school-based placement and program, I am constrained to find under these circumstances that respondent failed to provide petitioners' son with a FAPE for the 2004-05 school year (see Application of the Bd. of Educ., Appeal No. 01-012; Application of a Child with a Disability, Appeal No. 00-017).

I strongly concur with the impartial hearing officer's determination that the recommended 2004-05 school-based program and placement, had it been timely implemented, would have been appropriate in meeting the child's needs in the least restrictive environment, and was reasonably calculated to enable the child to receive meaningful educational benefit.

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, Section 1, Question 1).

In the instant case, the present levels of performance in the February 2005 IEP provide a detailed description of the child's abilities and needs (Dist. Ex. 37 at pp. 8-12) and reflect the committee's consideration of the child's most recent evaluations and progress notes (compare Dist. Ex. 37 at pp. 8-12; Parent Exs. I, L, P, Q, S, U, V), as well as information relative to the child's strengths (Dist. Ex. 37 at pp. 8, 9, 10) and the concerns of the parents for enhancing the education of their child (compare Dist. Ex. 37; Parent Exs. R, T; Tr. p. 46) (8 NYCRR 200.4[f][1]).  The IEP includes a statement describing how the child's disability affects his involvement and progress in the general curriculum (Dist. Ex. 37 at p. 8).

An IEP must also include measurable annual goals, including benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a][2]; see 8 NYCRR 200.4[d][2][iii]).  In addition, an IEP must describe how the student's progress towards the annual goals will be measured and how the student's parents will be regularly informed of such progress (34 C.F.R. § 300.347[a][7]; 8 NYCRR 200.4[d][2][x]).

The February 2005 IEP contains goals and objectives consistent with the child's needs and abilities (Dist. Ex. 37 at pp. 12-17).  Following the receipt of the neuropsychological evaluation in November 2004 the child's parents, therapists and district staff met to develop revised goals and objectives for the child (Dist. Ex. 25 at p. 2; Tr. pp. 62, 351-53, 592-94, 656-59, 726-33, 738-742, 870-71).  The February 2, 2005 IEP incorporates the majority of the recommendations made by the IEE evaluator (compare Dist. Ex. 37 with Dist. Ex. 16 at pp. 13-16; see Tr. pp. 53-58, 62), including the addition of a whole new section of social/emotional/behavioral goals and objectives derived largely from the IEE (compare Dist. Ex. 37 at pp. 14-15; Dist. Ex. 16 at pp. 13-16).  In addition, the IEP includes goals and objectives to appropriately address the child's areas of weaknesses in reading, writing, math, speech/language, motor skills and daily living skills, as reflected in current evaluations and testimony of the child's service providers (Dist. Ex. 37 at pp.12-17; see Tr. pp. 53-58, 292-93).  The child's speech therapist testified that statements in the February 2005 IEP accurately represented the child's needs, levels, abilities, and social development, and contained appropriate speech/language goals and objectives (Tr. pp. 653-56).  Some of the goals and objectives suggested by the parents were used in the February 2005 IEP; others were not (compare Parent Ex. MMM with Dist. Ex. 37 at pp. 11-14).  The CSE chair testified that the goals and objectives were appropriate and based on the child's present levels of performance as determined from test results taken from the IEE (Tr. p. 367).  The special education teacher stated that the goals and objectives on the child's IEP were similar to other children in the class and could be addressed in the 12:1+2 classroom (Tr. pp. 259-60).  According to CSE meeting minutes, these goals and objectives were fully reviewed at the February 2, 2005 CSE meeting, which the parents attended (Dist. Ex. 37 at pp. 2, 5). 

 

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]).

In addition to containing appropriate goals and objectives, the IEP also includes appropriate supplementary aids and services, program modifications and supports such as preferential seating, adaptive devices, simplified directions, and tasks broken down into segments (Dist. Ex. 37 at pp. 6, 11), as well as a statement of individual testing accommodations (Dist. Ex. 37 at p. 7).  Due to the child's sensory integration issues, the IEP included 1:1 adaptive physical education with a gradual move to include peers (Dist. Ex. 37 at p. 11).  While the February 2005 IEP does not include a separate sensory diet, the IEP itself includes detailed provisions describing the child's sensory diet (see Dist. Ex. 37 at pp. 6-7, 10-11, 12).  The positive behavioral interventions and supports and list of assistive technology devices included in the child's IEP (see Dist. Ex. 37 at pp. 6-7) confirm that the committee considered the special behavioral factors outlined in the state regulations (see 8 NYCRR 200.4[d][3]).  While the record in this case indicates that petitioners would have most likely benefited from the inclusion of parent training and counseling as a service on the IEP for parents of children with autism (see 8 NYCRR 200.13[d]), the lack of this service does not in this case make the IEP as a whole inappropriate, especially considering the fact that the IEP did offer the services of a behavior consultant in the home three times per month to develop the FBA (see Dist. Ex. 37 at p. 5).

The February 2005 IEP also contains an appropriate special education program and services for the child (Dist. Ex. 37 at pp. 5-6).  The CSE placed the child in self-contained 12:1+2 classroom for primary academic education six hours per day with a full time individual aide, and related services consisting of individual occupational therapy three times per week for one hour, an occupational therapy consultation once a week for 30 minutes, and individual speech/language therapy three times a week for one hour (Dist. Ex. 37 at p. 5).  The record indicates that the child would be grouped with children with similar needs in the recommended 12:1+1 class (Dist. Ex. 40, Tr. pp. 209-225).  Petitioners' main concern is that the number of children and adults in the classroom would cause their son to experience sensory overload and "shut down."  (Tr. pp. 812-814, 825; see also Tr. pp. 565-66, 782-85).  The special education teacher indicated that the 12:1+2 classroom for the 2004-05 year actually consisted of only ten children, was often broken up into smaller groups for instruction, and many times children were receiving related services outside of the classroom  (Tr. pp. 209; see Tr. p. 129; Dist. Ex. 40).  The special education teacher, the child's occupational therapist, and the behavior consultant had all visited the classroom and discussed where a separate space would be created in the classroom, as indicated in the child's IEP, for petitioners' son to go if he was experiencing sensory overload (Tr. pp. 128-29, 216, 241, 675-76; Dist. Ex. 37 at pp. 6, 11).  Several behavior strategies and interventions, many recommended by petitioners, were included in the IEP to prevent this from happening and to handle it should it occur, such as providing a predictable, consistent, quiet environment with minimal distractions, an environment with reduced stimuli, verbal instructions given slowly and calmly and broken into segments, scheduled breaks in instruction, 1:1 aide support during small group instruction, use of pre-setting and story telling prior to changes in routine, extra time allowed for processing, movement allowed during instruction, use of systematic desensitization techniques, and avoidance of punitive measures (Dist. Ex. 37 at pp. 6, 7, 11).  The special education teacher stated that all of the program modifications and sensory, academic, and management needs on petitioners' son's IEP could be implemented in the 12:1+2 class (Tr. pp. 212-13, 221-22).  The child's occupational therapist agreed that the program modifications and accommodations in the child's IEP were appropriate and would be a very good start to support him in the classroom (Tr. p. 771).  The special education teacher stated that several children in the class had similar needs as petitioners' son that were being addressed in the classroom, including sensory diets, social skills needs, and transitioning problems (Tr. pp. 211, 214, 215, 259-60; see Dist. Ex. 40).  She stated that for the children with transitioning problems she used visual schedules and presetting (Tr. pp. 215-17), the same techniques petitioners had successfully used in the past to transition their son (Tr. pp. 818, 824).

 

The record indicates that during the 2004-05 school year, petitioners' son successfully transitioned into a weekly one-hour gymnastics class of 4-8 children with 1-2 adults (Tr. pp.  778-79, 819-822, 909); and from September to December 2004, into a two-hour once a week art and academics class at church consisting of approximately 6 children and 1-2 adults (Tr. pp. 830, 978-983).  In both classes, the child reportedly did well while in class (see Tr. pp. 778-79, 909, 960, 983), demonstrating that the child could tolerate instruction in class sizes of up to 8 children and 2 adults.  Petitioners stated that they had tried to transition their son into a larger church class of 12-15 children, but gave up because the class was "too loud, too overwhelming" (Tr. pp. 992, 984-85).  Notably, none of these classes had the extra benefit of the numerous detailed individual behavioral supports, services, and program modifications contained in the child's recommended 12:1+2 school-based program, which also included an individual aide, and the services of a behavior consultant, all specifically designed to further ensure his ability to receive educational benefit from the school program.  The behavior consultant and the consultant's assistant who developed the child's FBA both visited the 12:1+2 class and determined it would be appropriate in meeting petitioners' son's individual needs (Tr. pp. 100-101, 111-12; 164-65), that the class was comprised of children with similar needs as petitioners' son (Tr. p. 168), that petitioners' son could be successful in the proposed class (Tr. pp. 101, 164-65).  The consultants stated that more important than a class size of 6 or 12, was having an individualized plan in place for the child that met his individual needs and gave him support around those needs, such as the one contained in petitioners' son's IEP (Tr. pp. 113-14, 138-39, 169).

 

In Application of a Child with a Disability, Appeal No. 04-110 the record did not support the parents' contention that the child had highly intensive management needs requiring a class size of no more than six students (see 8 NYCRR 200.6[g]).  The record in this case, including all new evaluative data received for the 2004-05 school year, leads to the same conclusion.  Petitioners continue to argue that their child requires a 6:1+1 setting, but the regulations are clear that such smaller student/staff ratios are reserved for those children with multiple disabilities and/or highly intensive management needs (see 8 NYCRR 200.6[g][4][ii], [iii]), neither of which accurately describe petitioners' son.  Petitioners rely in part on the recommendation made by their IEE evaluator, who stated that, in her opinion "[petitioners' son]'s needs would be best served in a small (6:1+1) structured classroom with other children with high functioning autism or Asperger Syndrome" (Dist. Ex. 16 at p. 13).  First, this statement in no way implies that a 6:1+1 classroom is the only placement in which petitioners' son can receive meaningful educational benefit.  Second, petitioners fail to realize that the IDEA does not require school districts to develop IEPs that maximize the potential of every child with a disability and provide the "best" possible placement that can be imagined; so long as the district offers to provide an appropriate education, defined as one which allows the child to receive meaningful educational benefit, the district has fulfilled its obligation under the IDEA (Rowley, 458 U.S. at 197 n.21, 199; see Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 [2d Cir. 2003]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 130, 132 [2d Cir. 1998]), Tucker v. Bay Shore Union Free Cent. Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989]; Viola v. Arlington Cent. Sch. Dist., ___ F. Supp. 2d ___, 2006 WL 300449 at * 15 [S.D.N.Y. Feb. 7, 2006]; Bd. of Educ. v. Mills, ___ F. Supp. 2d ___, 2005 WL 1618765 at *6 [S.D.N.Y. July 11, 2005]; Antonacchio v. Bd. of Educ., 281 F. Supp. 2d 710, 726 [S.D.N.Y. 2003]).  As much as petitioners understandably would like the standard to be the "best" possible placement, the law does not require this (id.); it simply requires school districts to provide access to specialized instruction and related services which are individually designed to provide educational benefit to the child (Rowley, 458 U.S. at 200-201).  Third, the IDEA requires that children be educated in the least restrictive environment on the continuum of services (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]), and state regulations require that children with autism, where appropriate, be mainstreamed in regular education classes, rather than segregated out in classes composed of only children diagnosed with autism and/or Asperger's Syndrome (see 8 NYCRR 200.13[5]).  Similarly, the federal regulations dictate that the services and placement for a child with a disability must be based on the child's unique needs and not on his disability (34 C.F.R. § 300.300[a][3][ii]).  For the foregoing reasons and the reasons given by the impartial hearing officer, I find that the recommended school-based 12:1+2 placement and program contained in the child's 2004-05 IEPs, had it been implemented, would have been appropriate to meet the child's needs and was reasonably calculated to enable the child to receive educational benefits in the least restrictive environment (M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak, 142 F.3d at 130).

Petitioners seek an award of  "corrective services" for the denial of FAPE in the 2004-05 school year.  The appropriate remedy for the failure to develop a timely transition plan in the prior year is to direct the CSE to reconvene and immediately develop a transition plan so that the child can access an appropriate school-based program, consistent with the tenor of this decision, in the current 2005-06 school year.  Contrary to the impartial hearing officer's finding, I have reviewed the final FBA and find it to be thorough and sufficiently complete, given that the child was not yet in the school setting.  In addition, I note that petitioners admitted they had devised several successful transition plans for their son, including one to transition him to working with new staff (Tr. pp. 553-54, 682-83, 701-05, 852-53, 859), a four-page written transition plan to transition him into the weekly gymnastics class (Tr. pp. 908-09), as well as several unwritten informal transition plans for various trips outside the house that involved presetting the child for what to expect (Tr. pp. 818, 824, 992), all of which were done without the benefit of a formal FBA or BIP.  The behavior consultant testified that it was her opinion that the child was ready to begin transitioning into a school program by the end of December 2004 (Tr. p. 201).  Based upon the voluminous information contained in the record, and given the nature of the child's disability and the exigency of the circumstances, I am not persuaded that an additional independent FBA will provide additional significant information about the child's needs for the limited purpose of transitioning him from the home to the school program that is not already in the record (seeApplication of a Child with a Disability, Appeal No. 99-19).  Therefore, I will order that the CSE, using all existing evaluative data and information presently available to it, including any informal transition plans developed by petitioners in the past, any partial or completed FBAs, any evaluations and IEEs, parental input, input from the child's service providers, and any other relevant information, immediately create a new transition plan for the purpose of transitioning the child into an appropriate school-based program to be implemented immediately upon completion.  I remind the parties that they are obligated to work together toward a consensus; however, if a consensus cannot be reached, it is ultimately the district's obligation to devise an appropriate and timely transition plan (see 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section II, Question 9; Application of a Child with a Disability, Appeal No. 04-093 [where parties disagree, district has the ultimate responsibility for developing an appropriate program]; Application of a Child with a Disability, Appeal No. 03-046 [same]; Application of the Bd. of Educ., Appeal No. 02-047; Application of a Child with a Disability, Appeal No. 00-084 [a CSE must recommend an appropriate program on a timely basis]).  Upon receipt of the independent FBA and transition plan previously ordered by the impartial hearing officer, the CSE should reconvene to adjust the child's transition plan, if appropriate.

Petitioners seek various other forms of relief for the denial of FAPE.  Petitioners seek additional services in the form of consultant teacher services to compensate for services not received during the 2004-05 school year.  State Review Officers have awarded additional services to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Application of a Child with a Disability, Appeal No. 03-050; Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030).  State Review Officers have broad authority in fashioning appropriate relief (see N.Y. Educ. Law § 4404[2]).  In the instant case, due to the delay in completing the FBA and transition plan, the home services became the child's de facto placement.  The home services plan contained only 2 hours of consultant teacher instruction per week, which, based on the record herein, was not enough to meet the child's educational needs (see 8 NYCRR 200.6[h][1]).  While the record reveals that the child received some of the two hours per week of consultant teacher services on his IEP in fall 2004, the consultant teacher testified that half of the sessions were canceled by the parent, and services ceased altogether in January 2005 at the request of petitioners due to their displeasure with the services provided (Tr. pp. 535-36, 451-53).  Taking into consideration the nature of the child's disability, it is questionable whether or not he could tolerate any additional hours of consultant teacher services offered at home during the 2005-06 school year after a six-hour school day.  For that reason I will remand the issue to the CSE to consider what, if any, additional services would be appropriate in addition to the school-based program.  Petitioners also seek a new speech evaluation and a new occupational therapy evaluation.  If respondent has not already conducted these evaluations during the 2005-06 school year, I will direct that it do so.  After these evaluations, the CSE will meet to review and revise the child's 2005-06 IEP.  In developing the new 2005-06 IEP, the CSE is hereby directed to include parent training and counseling (see 8 NYCRR 200.13[d]), and also to provide consultations five days per week with a behavior specialist, to be adjusted as necessary, as a support service for the first month of the child's transition into the school-based program, with continuation to be reassessed by the CSE at that time.

At the time of this decision, petitioners' son is ten years old.  He has not been in school for at least three years.  The record reveals that the student would be capable of receiving educational benefit in an appropriate school-based program such as the one contained in his 2004-05 IEP.  Based on the record herein, the student should be in such a program as soon as possible.  I urge the parties to work together to support and encourage the child to begin his return to school immediately upon completion of the new transition plan.  Petitioners' testimony revealed that when the child was directed and encouraged by his parents to go to the academics and art class, although it was difficult for him to go, he was able to attend every week "because he knew that's what I have to do" (Tr. p. 985).  The same encouragement is needed for the child to be successful in transitioning into a school-based program.

One final issue must be addressed.  In the past, petitioners have mistakenly believed that if they disagreed with the district's program, they could keep their child home without home schooling him or enrolling him in any other educational program (see Parent Ex. BB; see also Tr. pp. 934-36).  This is incorrect.  Petitioners, like all parents, have three choices in educating their children if they disagree with a public school program and request a due process hearing: (1) they can choose to enroll their child in what the district has determined to be an appropriate public school placement and program and await the outcome of the hearing, (2) they can choose to home school their child by filling out all the necessary paperwork and submitting an IHIP, in conjunction with which they may receive some supplemental support services from the district, or (3) they can choose to enroll their child at their own expense in a private school of their choosing while awaiting the outcome of the hearing.  In any case, state compulsory education laws require that parents ensure that children ages six to sixteen attend public school or receive a substantially equivalent education through enrollment in a private school or home school program each year (N.Y. Educ. Law § 3205; see Application of a Child with a Disability, Appeal No. 02-047).  In short, if petitioners reject the district's program, they must enroll their son in another program to educate him each year.  In meeting to develop the child's 2005-06 IEP and transition plan, time is of the essence and I encourage the parties to put aside their differences and begin to work in earnest to start the child in an appropriate educational program before any additional time is lost.

I have considered petitioners' remaining contentions and I find them to be without merit.⁷

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the impartial hearing officer's decision is hereby annulled to the extent that it determined that petitioners' son received a FAPE for the 2004-05 school year;

IT IS FURTHER ORDERED that within 14 days of the date of this decision respondent will complete a new occupational therapy evaluation and a new speech evaluation for petitioners' son if it has not already done so during the 2005-06 school year;

IT IS FURTHER ORDERED that the CSE will reconvene no later than 21 days from the date of this decision and develop an appropriate school-based placement and program for petitioners' son for the remainder of the 2005-06 school year consistent with the tenor of this decision.  Such program shall include a provision for parent training and counseling, as provided for in 8 NYCRR 200.13(d), and the support services of a behavior consultant for at least the first month of the child's transition into school.  The CSE shall also consider what, if any additional services are appropriate for petitioners' son for any loss of academic services in the 2004-05 school year, and if appropriate, will so provide; and

IT IS FURTHER ORDERED that within 30 days of the date of this decision that the CSE shall, based on the most current evaluations available to date including any existing transition plans developed by petitioners for the child, develop a written transition plan for the purpose of transitioning the child from the home to the school-based program.  The child shall begin the transition plan to the school-based placement no later than 30 days from the date of this decision.  This transition plan shall be reviewed and, if appropriate, modified upon receipt of the independent FBA previously ordered by the impartial hearing officer.