06-010

          Petitioner, the Board of Education of the Granville Central School District, appeals from the decision of an impartial hearing officer which found that it did not develop an appropriate program for the student for part of the 2004-05 school year and for the 2005-06 school year.  Petitioner also appeals from the impartial hearing officer's findings that the student was denied a free appropriate public education (FAPE) for part of the 2004-05 school year and for the 2005-06 school year.  The appeal must be sustained in part.

            The student was 14 years old and was in the sixth grade at Granville Elementary School when the impartial hearing began in June 2005.  His grandparents are his guardians and the respondents in this proceeding.  The student is classified as having multiple disabilities (Dist. Ex. 2 at p. 1, Dist. Ex. 3 at p. 1).  His eligibility for special education programs and services and his classification as a student with multiple disabilities (see 8 NYCRR 200.1[zz][8]) are not in dispute.

            Cognitive testing of the student indicates that the student's intellectual functioning is in the borderline to low average range (Dist. Ex. 17 at p. 3).  He has cerebral palsy (Tr. p. 19).  He also has hypoplasia of the corpus callosum (id.).  The corpus callosum is the part of the brain that allows the right and left sides of the brain to communicate (Tr. p. 207).  In addition, the student has stable hydrocephalus (Parent Ex. E7).  He experiences difficulties with his eyes, motor tics, low muscle tone, gross and fine motor delays, speech and language delays and possible pervasive developmental delays (Tr. pp. 19, 207).  He also has difficulty walking and getting out of a chair (Tr. pp. 20-21).

            Based upon an individualized education program (IEP) developed in February 2004 which continued into the 2004-05 school year, the student was placed in a 12:1+1 self-contained special education program for students in fifth and sixth grades at petitioner's elementary school (Dist. Ex. 4, Dist. Ex. 25 at p. 22, Parent Ex. X).  The program serves students between the ages of 11 and 13 (Dist. Ex. 8 at p. 2).  Reading, Language Arts and Mathematics are emphasized, and academics are taught on each student's instructional level (id.).  Emphasis is placed on life skills including manners, writing names and addresses, learning the calendar and telling time, and functional reading skills such as safety words, common signs and simple directions (id.).  The class runs the school store and spends time counting money (id.).  Some students are on an alternative assessment program and prevocational skills are taught as appropriate (id.).

            On October 13, 2004, the student and his family met with the student's physiatrist (Dist. Ex. 36).  The student's family reported that the student had a tendency to walk on his toes and that his episodes of falling had increased.  The physiatrist noted that the student had grown several inches over the summer and had developed significant spasticity in his lower extremities.  He prescribed medication and made a number of recommendations including expanding the student's physical therapy program at school to include stretching of the heel cord.

            On October 21, 2004, petitioner's Committee on Special Education (CSE) met to review the student's program (Dist. Ex. 4).  Minutes from the meeting note that the student's medical condition had deteriorated.  The minutes further note that the CSE discussed "neurological concerns" as well as the student's decreasing muscle strength and balance.  The CSE amended the student's IEP to include nursing services because of the new medication the student was taking.

            In a letter dated October 29, 2004, the CSE chairperson advised respondents that the reading and mathematics achievement levels of the students in their grandson's class exceeded the age range requirements set forth in the Regulations of the Commissioner of Education (Dist. Ex. 8).  She described the range in reading and mathematic abilities and indicated that the social, physical and management levels of the students in the class "varied," but were homogeneous.  A description of the class was attached to the letter.

            At the end of October 2004, the student's grandmother consented to the release of information about her grandson by two of her grandson's doctors to petitioner's occupational and physical therapy departments (Dist. Ex. 6).  In early November, the student's grandmother revoked her consent (Dist. Exs. 5, 7).  After receiving the revocation, the CSE chairperson advised respondents that the school district was concerned about their grandson's health status and that she would like to discuss the matter with them (Dist. Ex. 13).  Also at the end of October 2004, one of the student's doctors issued a prescription to discontinue occupational and physical therapy at school (Dist. Ex. 14).  Shortly thereafter, the occupational and physical therapy services were reinstated (Dist. Ex. 18; Tr. pp. 67-68, 513-14, 650).

            The student's first quarter progress report indicated that the student was graded at his instructional level and he was passing all subjects (Dist. Ex. 20).

            On December 27, 2004, the student was seen by his physiatrist (Parent Ex. E7).  The physiatrist noted that there was a concern that the student was showing a decline earlier in the fall, but indicated that the student "remained quite stable from a medical and specifically from a neurologic point of view."  He also noted that the student's neurologist had conducted an MRI and confirmed stable hydrocephalus.  The physiatrist reported that the student was "a little bit more clumsy moving about," but attributed most of the clumsiness to a slight increase in the student's spasticity due to his growth spurt.  The physiatrist reported that the medication he had prescribed in the fall to treat spasticity in the student's legs caused confusion and a decrease in the student's school activities.  He indicated that when the medication was discontinued, the student's thought processes cleared and he looked more stable.  The physiatrist explained to the student's family that the student was slowly losing ground compared to his peers because he had substantial developmental delays and congenital anomalies, and that this problem would continue to exist.  The physiatrist indicated that the student required ongoing special attention in school and individual assistance for most activities.  He further indicated that the student should continue to receive occupational and physical therapy and speech services through school.

            A speech-language reevaluation was conducted in January and February 2005 (Dist. Ex. 16).  The evaluator reported that the student exhibited severe deficits in receptive and expressive language skills, and that he had significant oral motor difficulties that affected intelligibility of speech.  The student demonstrated appropriate grammar skills for his functioning ability, as well as comprehension of most simple and complex sentence structures.  He also demonstrated proper greetings and introductions, and spontaneously used polite expressions such as "please," "thank you" and "excuse me."  Results of the Bracken Basic Concept Scale (Bracken) indicated that the student made progress in various concept areas compared to his results when the Bracken was administered in connection with a previous evaluation.  On the comparisons subtest, he scored 86 percent accuracy in 2005, up from 43 percent accuracy in 2004.  On the shape subtest, the student scored 90 percent, up from 80 percent. On the direction/position subtest, he scored 76 percent, up from 69 percent, and for social/emotional he scored 90 percent, up from 62 percent.  On the texture/material subtest the student scored 71 percent, down from 79 percent.  On quantity subtest, the student scored 74 percent, up from 63 percent.  The student stayed the same on the size subtest at 56 percent and on the time/sequence subtest at 66 percent correct.

            The evaluator noted that while the student had mastered some goals and had shown progress in others, he had regressed in oral motor functioning and overall speech intelligibility.  She recommended that the student's speech-language services be increased to include an additional session of individual therapy.

            In a report dated February 15, 2005, the occupational therapist indicated that the student demonstrated low neuromuscular tone (Dist. Ex. 31).  She further indicated that the student had motor tics that often involved whole body jerking, which varied in intensity and frequency from day to day and affected the student's balance and gross motor coordination, reducing his safety when ambulating in the school environment and when transitioning from sitting to standing or from standing to sitting.  The occupational therapist noted that on days when the student had more frequent and intense motor tics, he appeared more confused and needed more support to initiate, sequence and complete daily activities.  She further noted that the student had grown and was overweight, and as a result had a harder time controlling his body.  The student's performance on the fine motor subscales of the Bruininks-Oseretsky Test of Motor Proficiency indicated significant delays in fine motor skill development with an age equivalent in the 5.5 to 6.5 years range.  The student demonstrated visual motor skills in the low average range of ability when compared to children in his age group.  He was able to write words and numbers with good legibility, size relationships and consistent letter heights onto one-half inch-lined paper.  With respect to functional and self-care skills, the student was able to brush his teeth with reminders, was independent in using utensils to feed himself, and was able to untie his shoes.  The occupational therapist reported that the student was making slow progress toward improved strength and coordination using his hands and upper extremities, and in visual motor coordination for daily activities, educational and prevocational tasks.  She noted marked regression of strength and skills after long school holidays.  She indicated that the student continued to benefit from occupational therapy and monthly consultation.

            In a February 2005 assistive technology report, the evaluator noted that the student began working with assistive technology the previous year (Parent Ex. E4).  She indicated that the student was more distractible, more tired and that it was harder for him to work the entire 30 minutes during the 2004-05 school year.  She further noted that the student did not have the skills working with the computer mouse that he had the previous year.  She recommended continued services and indicated that the student needed the consistency, repetition and support.

            The student's second quarter progress report indicated that graded at an instructional level, he was passing all subjects (Dist. Ex. 21).  His teacher noted that the student had a rough making period and that he appeared to not feel well much of the time.

            A CSE subcommittee met on February 17, 2005 for the student's annual review and to develop his program for the remainder of the 2004-05 school year (Dist. Ex. 2; Tr. pp. 41, 101).  Attendees included respondents, the student's special education teacher, the occupational therapist, the assistive technology provider, the speech teacher, the physical therapist, a private service coordinator, the CSE chairperson, the school psychologist and the elementary school principal (Dist. Ex. 2 at p. 19).  No regular education teacher was present at the meeting.  The CSE subcommittee determined that the student should continue to be classified as having multiple disabilities and recommended that he continue to be placed in a self-contained class with a student-to-staff ratio of 12:1+1 in the district's elementary school (Dist. Ex. 2 at pp. 1, 12).  It further recommended a full-time 1:1 teaching assistant, assistive technology services and consult, occupational therapy services and consult, and individual and group speech-language therapy (Dist. Ex. 2 at p. 12).

            The CSE subcommittee also recommended various program modifications, accommodations, and supplementary aids and services including 1:1 instruction and supervision for all activities with safety given priority, use of a chair with arms in the classroom, and all academics taught in small increments with constant repetition (Dist. Ex. 2 at pp. 12-13).  Noting that regular assessments and curriculum content were too difficult for the student, the CSE subcommittee recommended alternative assessments (Dist. Ex. 2 at pp. 12, 14).  The recommendation also included the continuation of assistive technology training per the assistive technology recommendations, and writing with symbols (Dist. Ex. 2 at p. 13).  Supports for school personnel on behalf of the student included the availability of conferences, workshops, observations, visitations, publications and articles of pertinent information (id.).  The IEP indicated that the family had service coordination through an outside agency to support the student, and that the assigned personnel of the outside agency interacted with the school district at respondents' request (id.).

            Recommended testing accommodations included providing for the use of reading passages with one complete sentence per line, additional examples, cues (arrows, stop sign) on answer forms, and extended time (3X) (Dist. Ex. 2 at p. 14).  Additional accommodations included recording answers in test booklets; deleting spelling, punctuation, and/or paragraphing requirements; reading directions to the student; rereading directions for each page of questions; simplifying language in directions; and reading passages, questions, items, and multiple choice responses to the student (id.).  The IEP also provided for tests to be administered individually and in a separate location with minimal distractions (id.).  In addition, the IEP included transition activities (Dist. Ex. 2 at p. 16).

            When the CSE subcommittee met on February 17, 2005, it also developed the student's IEP for the 2005-06 school year (Dist. Ex. 3).  As noted above, no regular education teacher was in attendance (Dist. Ex. 3 at p. 19, Parent Ex. W).  Minutes from the meeting note that the student had a difficult year, had been sick frequently and had physically regressed (Dist. Ex. 3 at p. 20).  The meeting minutes further note that results of updated testing showed that the student's status remained the same as the previous year, but that he had not lost ground (id.).

            In addition to discussing the speech-language, occupational therapy and assistive technology reports described above, the CSE discussed the student's physical therapy needs (id.)  At the time of the meeting, the student received physical therapy twice per week for 30 minutes.  The physical therapist reported that the student fatigued easily and that his endurance, balance and stability had decreased.  His muscle strength remained the same.  The physical therapist further reported that the student was unable to walk the distance he previously could, and had more difficulty with stairs.  At the time of the meeting he was beginning to show improvement.

            The CSE subcommittee reviewed the IEP goals and objectives and noted that the student had made progress, but had not yet mastered the goals (Dist. Ex. 3 at p. 21).  It was recommended that the student's academic goals be retained (id.).  Respondents indicated that they wanted their grandson to remain at the district's elementary school for the 2005-06 school year (id.).  The CSE subcommittee indicated that the program at the district's elementary school would be appropriate to meet the student's social, academic, physical, and management needs (id.).  It indicated that it would need to review the age range of the students in the class and may need to apply for a waiver (id.).  The CSE subcommittee recommended essentially the same services, modifications, and accommodations for the student for the 2005-06 school year as it recommended for the remainder of the 2004-05 school (Dist. Ex. 3 at p. 12, Tr. pp. 36, 40), except for an increase in individual speech-language therapy from one time per week for 30 minutes to two times per week for 30 minutes (Dist. Ex. 3 at pp. 12, 21).

            Subsequent to the February 2005 CSE meeting, petitioner met and arranged for the special education services recommendation made by the CSE subcommittee and advised respondents by letter dated March 1, 2005 (Dist. Ex. 12).

            On March 2, 2005, one of the student's doctors issued a prescription discontinuing physical therapy (Dist. Ex. 15).  Upon receipt of the prescription, the CSE chairperson advised respondents that physical therapy would be removed from their grandson's IEP (Dist. Ex. 11).  An addendum to the CSE meeting minutes reflects that physical therapy services were to be removed from the student's IEP (Dist. Ex. 3 at p. 22).

            On March 17, 2005, respondents requested an impartial hearing indicating that they were not in agreement with the program, placement, evaluations or the implementation of their grandson's IEP and enumerating various procedural and substantive deficiencies (Parent Ex. A).

            In a letter dated March 28, 2005, the CSE chairperson advised respondents that their grandson qualified for extended school year (ESY) services (Dist. Ex. 10).  She indicated that such services were not discussed at their grandson's annual review and if they were interested in summer programming to contact her to schedule a CSE meeting.

            In a March 28, 2005 report, the student's physiatrist indicated that he had explained to the student's family that because of the student's physical, motor, language and cognitive delays, the student would progress at a slower rate than a normal child, but that he would be able to make some gains as he grew (Parent Ex. E2).  He further indicated that the student had grown physically making his gait more unstable, and that it was critical that the student continue to be encouraged to ambulate.  The physiatrist reported that the student continued to fall behind his age group norms in speech-language function and that his academic performance was weak, requiring special education programming.

            A March 28, 2005 private physical therapy report indicated that treatment focused on balance activities and gentle strengthening (Parent Ex. E1).  The evaluator indicated that the student's ability to perform activities during treatment was steadily improving.  She opined that the student would continue to benefit from therapy for strength, balance, gait and overall functional training.

            On March 30, 2005, the student and his family met with the student's neurologist because of concerns regarding management of the student's gait and endurance, his risk of falling at school, and his performance in school (Parent Ex. E).  The neurologist noted the student's growth spurt and indicated that this increase in the student's size had increased his imbalance, and that he could not control his larger body mass as easily as he could when he was smaller.  He opined that the student's difficulty controlling his larger body mass did not represent a progressive central nervous system deterioration, but rather simple physics.  He did not think further neurodiagnostic studies would change his recommendation.  The neurologist's exam revealed that the student had hypotonia and generalized weakness involving all limbs, and brisk reflexes due to cerebral palsy. 

            On April 22, 2005, respondents clarified their earlier request for an impartial hearing (Dist. Ex. 1).  Among the 13 claims listed, they asserted that their grandson was not receiving a FAPE and that he was not grouped with students of similar needs or abilities.

            The CSE reconvened on May 31, 2005 for a program review (Dist. Ex. 26).  Attendees included respondents, the student's special education teacher, the student's occupational therapist, the student's assistive technology consultant who also was a special education teacher, the student's speech teacher, the CSE chairperson, the elementary school principal, the school psychologist, and a parent representative (Dist. Ex. 26 at p. 20).  No regular education teacher attended the meeting.  Meeting minutes indicate that a draft IEP was provided to respondents prior to the meeting and that it was reviewed at the meeting (Dist. Ex. 26 at p. 21).  Present levels of academic performance, participation with peers in the classroom, and progress in academics and related services areas were discussed (Dist. Ex. 26 at pp. 21-22).  The CSE indicated that the student was eligible for ESY services, but respondents refused the services as the student was scheduled for surgery during the summer (Dist. Ex. 26 at p. 23).  They did not have any additions to the IEP (id.).

            The impartial hearing began on June 6, 2005.  The following day, at the next hearing session, respondents requested an impartial hearing for the 2005-06 school year indicating that they were not in agreement with the recommendation made by the CSE on February 17, 2005, which was the annual review for the student that recommended a program for the 2005-06 school year (IHO Ex. 5).  They raised numerous procedural and substantive deficiencies including that the CSE was not composed of the mandated members, as it did not include a regular education teacher, that their grandson was not appropriately grouped with students of similar needs and within the required chronological age range, and that he was not offered a FAPE (id.).  Respondents moved to consolidate their impartial hearing request for the 2005-06 school year with the impartial hearing addressing the 2004-05 school year.  The impartial hearing officer granted respondents' request (see June 26, 2005 IHO decision).

            By letter dated June 21, 2005, the CSE chairperson advised respondents that petitioner met and arranged for the special education services recommendation made by the CSE on May 31, 2005 (Dist. Ex. 29).

            In August 2005, petitioner requested an age range variance from the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities (VESID) because the student was the oldest student in the class and the three-year age limit was exceeded by five months (Dist. Ex. 27).  The variance was approved on August 10, 2005 (Dist. Ex. 33).

            The impartial hearing continued on August 11 and 12, 2005.  In a letter dated August 30, 2005, the student's grandmother indicated that she was not in agreement with the district's academic assessments of her grandson and requested an independent educational evaluation (Dist. Ex. 35).  She also requested independent psychological, occupational therapy, and speech-language evaluations (id.).  On September 26, 2005, the CSE chairperson advised respondents that their request for independent evaluations had been approved (Dist. Ex. 34).

            The impartial hearing continued on September 28, 2005 and concluded on October 27, 2005, after six hearing sessions.  The impartial hearing officer rendered his decision on December 26, 2005.  He found, among other things, that the CSE that met in February 2005 to develop the student's program for the remainder of the 2004-05 school year and for the 2005-06 school year did not include a regular education teacher and therefore was not properly composed.  He further found that the placements recommended by petitioner's CSE subcommittee for the remainder of the 2004-05 school year and for the 2005-06 school year did not comply with state regulations requiring that students with disabilities be grouped by similarity of individual needs (8 NYCRR 200.6[a]) and that the placement recommended by petitioner's CSE subcommittee for the 2005-06 school year did not comply with state regulations requiring that students with disabilities be grouped within a specified chronological age range (8 NYCRR 200.6[g]).  Noting that the student had regressed for a period of time prior to the development of the February 2005 IEPs, the impartial hearing officer found that the CSE recommended essentially the same program for the student, risking further regression.  He determined that the CSE did not develop appropriate programs for the student and that the student was denied a FAPE "in connection with the IEPs developed on February 17, 2005."  He annulled the IEPs developed at the February 2005 CSE meeting and ordered petitioner to reconvene the full and complete CSE within 21 days to develop a new IEP in accordance with his decision, to explore the need for new evaluations in light of the student's regression in 2004-05, and to explore the possibility of providing adapted physical education.

            After the impartial hearing officer rendered his decision, petitioner requested that he reconsider the evidence in light of the recent Supreme Court decision in Schaffer v. Weast, 126 S. Ct. 528 (2005) regarding the burden of proof at administrative hearings.  In a decision dated January 23, 2006, the impartial hearing officer stated that he reviewed his December 2005 decision and did not believe that a change in the burden of persuasion would have affected the outcome.  Accordingly, he denied petitioner's application to revise his final decision in view of Schaffer.

            Petitioner appeals from the impartial hearing officer's December 2005 and January 2006 decisions.  Initially, it claims that the impartial hearing officer's determination that the CSE was not properly composed because a regular education teacher was not at the meeting is improper and should be annulled.  It further claims that the impartial hearing officer's determination that the student was not grouped with students with similar needs or within the required age range is improper and should be annulled.  Petitioner also claims that the impartial hearing officer's determination annulling the February 2005 IEPs and his determination that the student was denied a FAPE in connection with the February 2005 IEPs are improper and should be annulled.  Finally, petitioner claims that the impartial hearing officer's January 23, 2006 decision was incorrect and that he should have placed the burden of proof upon respondents.¹

            A purpose behind the 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, 126 S. Ct. at 531 [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]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).³

            A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the Individuals with Disabilities Education Act's (IDEA) 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]; see also Viola v. Arlington Cent. Sch. Dist., 2006 WL 300449 (S.D.N.Y)).  This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]).  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, 346 F.3d at 379; Walczak, 142 F.3d at 132; Antonaccio v. Bd. of Educ., 281 F. Supp. 2d 710, 726 [S.D.N.Y. 2003]).  The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

            An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

            Petitioner claims that the impartial hearing officer's determination that the February 2005 CSE was not properly composed because a regular education teacher was not at the meeting is improper and should be annulled.  It asserts that the student did not participate in the regular education environment except for art and physical education, both of which were modified to accommodate him.  Petitioner argues that because there was no likelihood that the student would participate in the regular education environment, there was no requirement to have a regular education teacher at the CSE meeting.

            The IDEA and its implementing regulations require that the CSE include "at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment)" (20 U.S.C. § 1414[d][1][B][ii]; see 34 C.F.R. § 300.344[a][2]; 8 NYCRR 200.3[a][1][ii]).  In its official interpretation of the regulations, the U.S. Department of Education explains that the regular education teacher member "should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 26).  The regular education teacher member "shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate behavioral interventions and strategies and the determination of supplementary aids and services, program modifications, and support for school personnel" (20 U.S.C. § 1414[d][3][C]; see 34 C.F.R. § 300.346[d]; 8 NYCRR 200.3[d]).  The regular education teacher must also "participate in discussions and decisions about how to modify the general curriculum in the regular classroom to ensure the child's involvement and progress in the general curriculum and participation in the regular education environment" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 24), and participate in any review and revision of the IEP (20 U.S.C. § 1414[d][4][B]; 34 C.F.R. § 300.346[d]; 8 NYCRR 200.3[d]).

            The record shows that the student participated in the regular education environment for art and physical education (Tr. pp. 279, 298, 768, 770).  The IEPs developed as a result of the February 2005 CSE meeting provide that the student participates in physical education to the best of his physical capabilities, that his participation in physical education with his classmates is limited due to his physical limitations, and that he needed physical education activities modified to meet his "motoric abilities" (Dist. Ex. 2 at pp. 3-4, Dist. Ex. 3 at pp. 3-4).

            The CSE chairperson testified that the student participated in regular physical education, but that the physical education program was adapted to meet his needs because he was unable to participate at the level of a sixth grader (Tr. pp. 125-26).  The physical therapist that worked at the district's elementary school testified that the student was not capable of independently participating in physical education (Tr. p. 567).  She further testified that the student participated in regular physical education with a 1:1 teaching assistant with him at all times (id.).  The physical therapist also testified that at the February 2005 CSE meeting, she made various recommendations and provided input into the student's physical education program (Tr. pp. 531, 566-67).  She stated that her input included providing modifications to the physical education program based upon the activities the student could participate in and those he could not (Tr. p. 567).

            The student's teaching assistant testified that the student attends regular physical education and if possible participates in the activity (Tr. p. 790).  She further testified that when the physical education teacher determined that an activity was too hard for the student, she would walk around the field with the student, or do occupational or physical therapy exercises with the student (Tr. pp. 770, 790).  The student's teaching assistant also testified that physical education was an important part of the student's day (Tr. p. 800).  She stated that he liked basketball and that when the class was playing basketball, the other students would help him make a basket (id.).

            The CSE that met in February 2005 did not include a regular education teacher despite the fact that the IEPs developed as a result of that meeting provided for the student's participation in regular education art and physical education.  Consequently, contrary to petitioner's argument, the February 2005 CSE did not include the required members.  Under the circumstance presented in this case, however, I am unable to find that the absence of a regular education teacher from the February 2005 CSE meeting during which the IEP for the remainder of the 2004–05 school year and the IEP for the 2005-06 school year were formulated denied the student a FAPE.  As noted above, at the February 2005 CSE meeting respondents requested and the CSE recommended that the student remain in the same program for the remainder of the 2004-05 school year and for the 2005-06 school year which included participation in regular education art and physical education with modifications.  The record shows that there were no discussions at the February 2005 CSE meeting about changing the student's placement (Tr. p. 41).  In addition, there is no information in the record indicating that respondents requested that their grandson's participation in the regular education environment be increased or reduced.  Respondents present no evidence that the absence of a regular education teacher from the February 2005 CSE meeting in any way resulted in a loss of educational opportunity, seriously infringed upon their opportunity to participate in the IEP formulation process, or compromised the development of an appropriate IEP in a way that deprived their grandson of educational benefits under the IEP.

            Petitioner also claims that the impartial hearing officer erred in finding that the student was not grouped with students with similar needs.  State regulation requires that children in special education classes be appropriately grouped using the criteria of levels of academic achievement and learning characteristics, levels of social development, levels of physical development, and the management needs of the children (8 NYCRR 200.6[g][2]).  State regulation further requires that, in a special class, where the range of achievement levels in reading and mathematics exceeds three years, the school district shall provide the parents of students in such class a description of the range of achievement in reading and mathematics and the general levels of social and physical development and management needs in the class by November first of each year (8 NYCRR 200.6[g][7]).  Here, the student's IEP for the 2004-05 school year was developed in February 2004 (Dist. Ex. 25).  The record shows that by letter dated October 29, 2004, the CSE chairperson advised respondents that the reading and mathematics achievement levels of the students in their grandson's class exceeded three years (Dist. Ex. 8).  She described the range of reading and mathematic abilities and indicated that the social, physical and management levels of the students in the class "varied," but were homogeneous (id.).  A description of the class was attached to the letter (id.).  The description of the class indicates that some of the student's in the class are on an alternative assessment program and receive a heavy emphasis on life skills (id.).  The CSE chairperson did not receive a response from respondents to her October 29, 2004 letter (Tr. p. 54).

            When the CSE met for the student's annual review in February 2005, respondents requested that their grandson remain in the same program for the remainder of the 2004-05 school year and the CSE recommended that he continue in that program (Tr. pp. 35-36).  As noted above, respondents were advised of the reading and mathematics achievement levels of the students that were in the class during the 2004-05 school year four months earlier and raised no objection (Tr. p. 54).  I note that respondents were familiar with the recommended program as their grandson had been in that program since the 2002-03 school year (Tr. pp. 259-60).

            The student's teacher testified that "socially in the classroom" the student "fits in" (Tr. p. 332).  The CSE chairperson testified that the student was socially appropriate in the classroom and that his behavior in the classroom was the same as the other students in the class (Tr. p. 179).  While the student had greater physical needs than the other students in the class (Tr. pp. 375, 579), he was provided a 1:1 teaching assistant who, with the exception of lunch, stayed with him the entire day (Tr. pp. 764-67).  In addition, the class included another pupil at the same reading and math level, and the student was grouped with that pupil for instruction in reading and mathematics (Tr. pp. 268-69, 275, 390).  I note that 8 NYCRR 200.6(g)(7) does not prohibit the grouping of students whose achievement levels in reading and mathematics exceeds three years (Application of a Child with a Disability, Appeal No. 01-073).  Based upon the information before me, I find that the program the CSE recommended for the student for the remainder of the 2004-05 school year was not inconsistent with state regulations requiring that students be grouped according to similarity of needs.

            With respect to the program recommended for the student for the 2005-06 school year, the impartial hearing officer also found that the student would not have been grouped with students with similar needs.  For essentially the same reasons set forth above with respect to the 2004-05 school year, I find that the program the CSE recommended for the student for the 2005-06 school year was not inconsistent with state regulations requiring that students be grouped according to similarity of needs.  I note that at the beginning of the 2005-06 school year, the student was receiving home instruction after having had surgery during the summer of 2005.  The record does not indicate, however, whether an IEP was developed for the student providing for home instruction or when the student would be returning to school during the 2005-06 school year.  I further note that the impartial hearing ended prior to the deadline for petitioner to advise respondents that the class recommended for their grandson for the 2005-06 school year exceeded the required range for achievement levels.  However, as noted above, when the CSE made its recommendation for the 2005-06 school year in February 2005, respondents had been advised four months earlier of the reading and mathematics achievement levels of the students who were in the class and raised no objection (Tr. p. 54).  And, as with the 2004-05 recommended program, at the February 2005 CSE meeting, the student's grandmother suggested that her grandson remain in the same class for the 2005-06 school year (Tr. pp. 337, 418, 669).

            In addition, the impartial hearing officer found that the CSE did not comply with state regulations requiring that students with disabilities be grouped within a chronological age range with respect to the program recommended for the student for the 2005-06 school year, (8 NYCRR 200.6[g][5]).  The record shows that at the February 2005 CSE meeting, the CSE noted the need to look into the age range of the student's in the recommended class and the need to apply for a variance (Dist. Ex. 3 at p. 21).  The record further shows that petitioner requested a variance from the chronological age requirement from VESID (see 8 NYCRR 200.6 [g][5] and [6]; Dist. Ex. 27).  On August 10, 2005, VESID granted an age range variance for the student for the 2005-06 (Dist. Ex. 33).  An appeal to the State Review Officer is not the proper forum to challenge the variance granted by VESID.  The Regulations of the Commissioner of Education expressly state that the State Review Officer cannot review the actions of any officer or employee of the State Education Department (8 NYCRR 279.1[c][2]); see Application of the Board of Educ, Appeal No. 99-89; Application of a Child with a Disability, Appeal No. 99-10).

            Petitioner also argues that the impartial hearing officer's determination that the student was denied a FAPE in connection with the IEPs developed in February 2005 is improper and should be annulled.  It asserts that respondents requested the recommended program, that they did not believe that their grandson had regressed, and that any regression was temporary and limited only to the physical needs of the student.  Petitioner further asserts that respondents failed to share medical and therapist information and reports with the CSE and that they prevented the school from gathering information from valuable resources and experts.

            Minutes from the February 2005 CSE meeting reflect that the student "has had a difficult year and has been sick a lot and has many physical issues," and that he had physically deteriorated (Dist. Ex. 2 at p. 20, Dist. Ex. 3 at p. 20).  The student's teacher testified that the student was not regressing, but that he did not appear to move ahead (Tr. pp. 322-24, 428).  The occupational therapist testified that when the student returned to school after the holiday break in December 2004, he "appeared very weak," that he did not have the endurance or stamina, that he had poor balance and that he was "cognitively confused" (Tr. pp. 658-60).  The speech-language therapist testified that she noted regression after Christmas break in the student's muscle tone, speech, fine and gross motor skills, stamina and ability to stand (Tr. pp. 615, 633-34).  She further testified that it was a "drastic change," that it "affected everything motorically," and that it was affecting his ability to learn in the classroom (Tr. p. 634).

            Despite the student's physical deterioration, the record shows that he "did not lose ground" academically (Tr. pp. 322-23, 428, 452).  In addition, the record shows that the student progressed in other areas.  The speech language therapist testified that the student "made really good progress on quite a few of the concept areas" (Tr. p. 595).  She explained that concept areas include following directions, working on opposites, and understanding emotions (Tr. p. 598).  He also made progress in understanding sentence structure, he was using helping verbs and prepositional phrases and he was saying longer sentences (Dist. Ex. 3 at p. 20).  The student's occupational therapist testified about the student's progress (Tr. p. 656-67).  As noted above, the student made slow progress toward improved strength and coordination using his hands and upper extremities (Dist. Ex. 31 at p. 3).  Further, when compared to previous testing in 2002, the student made gains in his precision in copying shapes and in his attempts to copy the next steps in the developmental sequences (id.).  Minutes from the February 2005 CSE meeting reflect that the student was beginning to show some improvement in physical therapy (Dist. Ex. 2 at p. 20, Dist. Ex. 3 at p. 20). 

            As noted above, the IEPs developed as a result of the February 2005 CSE meeting for the remainder of the 2004-05 school year and for the 2005-06 school year reflected results of evaluations that identified the student's needs (Dist. Exs. 2, 3).  They included annual goals and objectives related to those needs, including goals for mathematics, reading, writing, occupational and speech-language therapy, and assistive technology.  The IEPs also provided for appropriate special education services including a program with a heavy emphasis on life skills, a 1:1 teaching assistant, related services of occupational and speech-language therapy, a number of program modifications, accommodations and supplementary aids and services and testing accommodations, as well as supports for school personnel on behalf of the student.  Based upon the information before me, I find that the February 2005 IEPs, at the time they were formulated, were reasonably calculated to enable the student to receive educational benefit. ⁴

            I note the occupational therapist testified that after February 2005, the student was "very much improved" and "a different person" (Tr. pp. 634, 659).   The speech-language therapist testified that when she saw the student in March 2005, she noted "marked improvement" (Tr. p. 632), and by the May 2005 CSE meeting, the student's facial muscle tone was much improved (Tr. p. 600).  She further testified that the student started gaining skills back and by the end of the school year had made progress (Tr. pp. 634, 637).  The student's teacher testified in June 2005 that the student had made excellent progress on his goal to master the first 100 words on the Dolch reading list (Tr. pp. 321, 404).

            Petitioner further claims that the impartial hearing officer refused to reconsider the evidence in view of Schaffer.  However, in his January 23, 2006 decision, the impartial hearing officer stated that he reviewed his December 2005 decision in view of Schaffer and petitioner's application, and that he did not believe a change in the burden of persuasion would have affected the outcome.  In any event, for the reasons set forth above, I have found that the evidence amply demonstrates that the February 2005 IEPs, at the time they were formulated, were reasonably calculated to enable the student to receive educational benefit.  This determination would remain if during the administrative hearing the burden had been placed on respondents, the party challenging the IEPs, as the Supreme Court recently established in Schaffer (see Application of the Bd. of Educ., Appeal No. 05-120).

            I have considered petitioner's remaining claims and I find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the impartial hearing officer's decision, to the extent that he found that the student was denied a FAPE in connection with the IEPs developed in February 2005, is hereby annulled.