Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Ithaca City School District
Edward E. Kopko, Esq., attorney for petitioners
Bond, Schoeneck & King, PLLC, attorney for respondent, Jonathan B. Fellows, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which determined that the educational program respondent's Committee on Special Education (CSE) recommended for their son for the 2005-06 school year was appropriate. The appeal must be dismissed.
At the time of the impartial hearing, which began on November 16, 2005, petitioners' son was ten years old and eligible for special education programs and services as a student with an other health-impairment (OHI) (Tr. pp. 28, 32; see 8 NYCRR 200.1[zz]).
At the outset I note that after a full examination of the hearing record and papers submitted on appeal, I find the impartial hearing officer's findings of fact to be accurate and properly based upon the record. Therefore, I adopt the findings of fact as set forth in the impartial hearing officer's decision and they will not be repeated here in detail (34 C.F.R. § 300.510[b][v-vi]). Moreover I find, after reviewing the record and the impartial hearing officer's decision, that the impartial hearing officer applied the proper legal analysis in determining whether the student was offered a free appropriate public education (FAPE) in the least restrictive environment (LRE) (see Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 ; Mavis v. Sobol, 839 F. Supp. 968 [N.D.N.Y. 1994]), and did so in a well reasoned and thorough manner. Based upon my review of the entire hearing record, I find that the hearing was conducted in a manner consistent with the requirements of due process and find that, based upon my independent judgment, there is no need to modify the determinations and conclusions of the impartial hearing officer (34 C.F.R. § 300.510[b]; Education Law § 4404).
Because petitioners did not raise any procedural arguments at the impartial hearing pertaining to the formulation of the individualized education program (IEP), the sole issue before the impartial hearing officer was whether respondent's October 12, 2005 IEP (Dist. Ex. 42) offered petitioners' son a substantively appropriate educational program in the LRE (Dist. Ex. 26; Tr. pp. 34; 348-50).
A private psychologist evaluated the student on June 17 and June 20, 2005, when the student was ten years old (Dist. Ex. 20). Testing took place at petitioners' home. The psychologist noted that on most verbal tasks the student did not understand what was being asked of him (Dist. Ex. 20 at p. 2). The psychologist further commented that the student's performance was negatively affected by "his tendency to become frequently distracted by a loose and scattered thought process" (Dist. Ex. 20 at p. 3). The psychologist noted that the June 2005 evaluation represented a valid and reliable estimate of the student's current psychological and educational functioning (id.).
On the Wechsler Intelligence Scale for Children – IV (WISC-IV) the student's IQ score of 57 fell below the first percentile and was within the mentally deficient range of intellectual functioning (Dist. Ex. 20 at p. 5). All of his composite scores fell in the mentally deficient range except for his verbal comprehension score, which was in the borderline range (Dist. Ex. 20 at p. 4). On the Wechsler Individual Achievement Test –II (WIAT-II) most of the student's scores were below the second percentile (Dist. Ex. 20 at p. 5). His reading was labored and slow and his limited decoding ability interfered with his reading (id.). It was noted that the student was able to write single letters of the alphabet and some letter blends (id.). On math tasks he was able to recognize single digit numbers and could add single numbers below five. He did not recognize the concept of subtraction and his ability to tell time was limited (id.).
The psychologist interviewed the student's teaching staff and reported that the student's "oppositional behavior, social problems, cognitive problems, hyperactivity and anxiety were consistently rated by the staff as significant problems." (Dist. Ex. 20 at p. 8). The school staff indicated that the student had trouble with transitions of any kind (id.). The staff reported that the student was quick to become verbally and physically aggressive and they were never sure if he was going to listen to them or if there was going to be a behavioral outburst. There was concern that the student continued to be at risk for requiring physical restraint to control his behavior and to protect others from his outbursts and staff indicated that the student required a lot of accommodation and individual attention (Dist. Ex. 20 at pp. 8-9). Petitioners' private psychologist described a very structured and educationally detailed program, which he recommended be provided to the student in a school other than the one he presently attended, and opined that the provision of an appropriate educational program would minimize any potential harmful effects of the move (Dist. Ex. 20 at p. 11).
At the October 12, 2005 CSE meeting, the committee recommended changing the student's placement from a third grade regular education setting. The CSE convened the meeting in response to the student's significant regression and escalating behavioral problems demonstrated during the beginning of the 2005-06 school year. The October 12, 2005 IEP noted that in general, the student appeared to be overwhelmed by his transition to third grade (Dist. Ex. 42 at p. 4). It further noted that he was confronted with new staff and an increase in social and academic expectations. The IEP reported that the student "becomes highly anxious and created situations where he needs to be removed to the quiet zone. It may be that he is avoiding the social and academic demands of his third grade classroom, however, he does not appear to feel safe even in the ETP [Elementary Transition Program] classroom with which he is quite familiar and where he frequently has 1:1 attention. He is most often in an agitated and emotionally labile state and needs seclusion. In his current state the student's social and academic needs are not being met in school." (id.). The IEP reflected that the student had regressed significantly from his level of functioning at the end of second grade and that information supplied by petitioners' private evaluator was considered (id.). The CSE recommended a self-contained 8:1+1 Board of Cooperative Educational Services (BOCES) program called the Turning Point Program (Tr. p. 56). The CSE also recommended that several other services for the student remain the same (adaptive physical education, both group and individual counseling, group and individual occupational therapy, group speech and language therapy, a behavioral intervention plan (BIP), and a 1:1 aide) and that counseling be increased to one individual and two group sessions per week (Dist. Ex. 42 at p. 1). Petitioners disagreed with the recommended placement (Tr. p. 57).
At the impartial hearing the student's special education teacher testified that the student had made slow academic progress with direct instruction (Tr. p. 254) but that he was not benefiting academically in the regular education classroom (Tr. p. 255), despite having a one-to-one aide, because his cognitive abilities were much lower than the abilities of other students and he was not able to understand instruction from the general education teacher. A school psychologist testified that given the student's full-scale I.Q. score of 58, this student would have trouble accessing instruction in the regular education classroom, even with considerable modification (Tr. p. 148). Another school psychologist reported that the student was exhibiting significant emotional and behavioral difficulties that were interfering with his daily functioning, despite the support of school counseling, a behavior plan and the support of a one-to-one aide (Dist. Ex. 13). Noted on his IEP were his regular education teacher's comments that the student's outbursts inhibited him from actively participating in the class on a regular basis and that he had been out of the classroom more often than he had been in attendance (Dist. Ex. 42). The student's counselor/social worker also testified that the student's behavior had escalated to include swearing, spitting, flailing, kicking, and threats, up to twice a day, resulting in frequent removal from the classroom (Tr. pp. 209-13). As noted by the impartial hearing officer (IHO Decision, ¶ 128), and respondent's counsel, all the witnesses who testified at the impartial hearing, except for the student's mother, supported the student's placement at the recommended BOCES program as appropriate to meet the student's needs. The impartial hearing officer concluded that the student's behavior was disruptive to other students and he was a danger to himself, staff and classmates. Moreover, the impartial hearing officer concluded that the student's management needs were such that the student could not satisfactorily achieve his goals in a regular education setting despite the provision of supplementary aids and services such as a one-to-one aide, counseling, one-to-one special education instruction, related services for speech, and a behavior plan. The impartial hearing officer also found the student would have been appropriately grouped for instructional purposes in the special class at BOCES (IHO Decision, ¶ 151).
One of the main purposes behind the Individuals with Disabilities in Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487)1 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]; Schaffer v. Weast, 126 S. Ct. 528 ). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).2
A FAPE is offered to a student when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206). 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 student to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002] [quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998][citation and internal quotation omitted]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak v. Fla. 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; seeGrim v. Rhinebeck Cent. Sch. Dist., 346 F.3d at 379; Walczak, 142 F.3d at 132). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]).
In determining an appropriate placement in the LRE, the IDEA requires that children with disabilities be educated to the maximum extent appropriate with children who are not disabled and that special classes, separate schooling or other removal of children with disabilities from the regular educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. § 1412[a][A]; see 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]). In determining whether a student can be educated in regular classes, it is not necessary to establish that the student will learn at the same rate, or master as much of the regular education curriculum as his or her disabled peers (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 [5th Cir. 1989]). The relevant question is whether a student can achieve the goals of his or her IEP within a regular education program, with the assistance of supplementary aids or services (Mavis, 839 F. Supp. at 982 n.25; see Application of a Child with a Disability, Appeal No. 05-010; Application of a Child with a Disability, Appeal No. 03-027: Application of a Child with a Disability, Appeal No. 03-009; Application of the Bd. of Educ., Appeal No. 02-081; Application of a Child with a Disability, Appeal No. 93-4). The fact that a student with a disability might make greater academic progress in a special education class may not warrant excluding the student from a regular education program (Oberti v. Bd. of Educ., 995 F.2d 1204, 1213 [3d Cir. 1993]). The CSE must also consider the unique benefits, academic and otherwise, which a student may receive by remaining in regular classes, e.g., language and role modeling with no disabled peers (Greer v. Rome City Sch. Dist., 950 F.2d 688 [11th Cir. 1991]). In determining whether a special education class is appropriate, objective factors such as the attainment of passing grades and regular advancement from grade to grade are generally accepted indicators of satisfactory progress and one important factor in determining educational benefit (Rowley, 458 U.S. at 207, n.28, 203-04; Walczak, 142 F.3d at 130). This is true even when the student has been educated in special education classes (Walczak, 142 F.3d at 130).
On appeal, petitioners raise as their central argument the claim that the impartial hearing officer erred in determining that the student's current regular education placement is not appropriate. Based the student's academic, social, behavioral and management needs, I concur with the impartial hearing officer and find petitioners argument to be without merit.
Petitioners also claim that the impartial hearing officer erred in finding the BOCES placement to be an appropriate placement in the LRE. Petitioners contend that their son would not be suitably grouped with other students in the BOCES program. The student's mother testified that she observed a classroom at BOCES and she had concerns that the other students in the classroom were " lower functioning" than her son (Tr. p. 297). State regulations require that in special classes students must be suitably grouped for instructional purposes with other students having similar individual needs (8 NYCRR 200.6[a], 200.1[ww][i], 200.6[g]; Application of a Child with a Disability, Appeal No. 03-023; Application of a Child with a Disability, Appeal No. 01-084). The similarity of abilities and needs may be demonstrated through the use of a proposed class profile or by the testimony of a witness who is familiar with the children in the proposed class (Application of a Child with a Disability, Appeal No. 02-028; Application of a Child with a Disability, Appeal No. 94-7). The chronological age range among the students within special classes of students with disabilities who are less than 16 years of age is limited to 36 months (8 NYCRR 200.6[g]).
Testimony by three members of the CSE and petitioners' private psychologist indicated that the student would be appropriately grouped in the BOCES program (Tr. pp. 158-62, 221-24, 263-64). The school psychologist testified that she observed the proposed placement at BOCES and was familiar with some of the students in the class. She opined that the students in the classroom were age appropriate for petitioners' son and that petitioners' son would have a beneficial social interaction in that group (Tr. pp. 158-59, 161). The school psychologist further testified that she was aware of nothing about the other students' cognitive levels that would prevent the student from being appropriately instructed in the class (Tr. p. 162). The social worker testified that he observed classes at BOCES with age appropriate students (Tr. p. 221). He also testified that the petitioners' son would benefit from social interaction with the children in the class he had observed (Tr. p. 223). The social worker testified that frequent modifications and accommodations were made in the BOCES classroom, the instruction appeared to be individualized, and all of the children had a comprehensive behavior management plans. He noted that he was impressed by the different levels of management used (Tr. pp. 224-25). The social worker also opined that, based on what he learned during his visit to BOCES, the placement was appropriate for the student (Tr. p. 227). The student's special education teacher visited the proposed classroom and testified that the children she observed at BOCES were age appropriate to petitioners' son and on the same level of physical development. She opined that the student would benefit from social interaction in that classroom (Tr. p. 264). She stated that, cognitively, petitioners' son would be able to access the instruction in the proposed classroom and the BOCES placement would be a beneficial placement for petitioners' son (Tr. p. 265). The student's private therapist observed the BOCES classroom and expressed concern about the student's ability to keep pace with the group (Tr. p. 224). The BOCES teacher indicated that the student would be "accommodated with his learning style" and that there was another child in the class who, like petitioners' son was several grade levels behind in academic performance (id.). The BOCES teacher indicated that she did not view this discrepancy in academic performance to be a difficulty because of the individualized nature of the instruction provided in the class (id.). Moreover, petitioners own independent evaluator visited the student's current regular education placement and the BOCES campus and opined in an addendum to his initial evaluation entitled "Report of Observations of Proposed Academic Programs" that the BOCES placement was "best suited to meet [the student's] current educational needs" (Dist. Ex. 44). After considering the age, cognitive ability, social and physical development, and management needs of the student in relation to the parallel characteristics of the students in the recommended class (8 NYCRR 200.6[a][i-iv] and 200.6[g]), I concur with the impartial hearing officer and find sufficient similarities among the students to conclude that appropriate groupings had been recommended (Application of a Child with a Disability, Appeal No. 03-023; Application of a Child with a Disability, Appeal No. 01-020; Application of a Child with a Disability, Appeal No. 00-065).
On appeal, petitioners also raise several ancillary issues pertaining to evidentiary rulings below. I also find these arguments to be unpersuasive. Petitioners assert that the impartial hearing officer improperly allowed the introduction of the report of an independent psychological reevaluation that petitioners had requested be performed (Dist. Ex. 44). I find the impartial hearing officer properly exercised his discretion under 8 NYCRR 200.5(j)(3)(xii)(a) in allowing the introduction of the report at the second day of the hearing. This was particularly appropriate under the circumstances here, where prior to its introduction, contrary to their position on appeal, petitioners argued that the report was essential to the record (Tr. pp. 25-26). Petitioners also argue that the impartial hearing officer improperly a) determined that the burden of persuasion was borne by the party challenging the IEP, in the instant case the petitioners, and b) denied their request to adjourn the impartial hearing 30 days to allow petitioners additional time to prepare their case in light of the United States Supreme Court's recent decision Schaffer v. Weast issued on November 14, 2005 (126 S.Ct. 528 ). In Schaffer, the Court held that the "[t]he burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief." (Schaffer, 126 S.Ct. at 537). In the instant case, the hearing began on November 16, 2005 and as such, the burden of persuasion was properly placed upon petitioners. In addition, although petitioners assert that they were denied due process by the impartial hearing officer's decision not to delay the start of the hearing, and that they were thereby prejudiced by the shift in the burden of persuasion on short notice, I note that petitioners were subsequently afforded an opportunity to present additional evidence but did not do so (IHO Decision, ¶ 103). In addition to the failure of petitioners to identify any specific harm or prejudice pertaining to the presentation of their case at the hearing, I find that the opportunity afforded petitioners to present additional evidence cured any alleged due process violation caused by the denial of an adjournment.
On appeal, petitioners also raise claims not raised properly below, including, inter alia, the claim that they were not properly notified of the proposed change in placement for the student. I do not consider these claims because they were not properly raised below (see 8 NYCRR 200.5[j][ii]) and are not properly before me (see Application of a Child with a Disability, Appeal No. 04-019; Application of a Child with a Disability, Appeal No. 03-095; Application of a Child with a Disability, Appeal No. 02-024; Application of a Child with a Disability, Appeal No. 01-024; Application of a Child with a Disability, Appeal No. 99-060).
Based upon the record in this case, I find that the evidence demonstrates that the student was offered an appropriate program in the LRE by the October 12, 2005 IEP.
THE APPEAL IS DISMISSED.
1 The IDEA was amended effective July 1, 2005 (see Pub. L. No. 108-446, 118 Stat. 2647 [H.R. 1350]  [codified as amended at 20 U.S.C. § 1400, et. seq.]). Since the underlying events in this appeal all occurred subsequent to that date, all references to the IDEA used herein refer to the newly amended provisions of the IDEA 2004, unless otherwise specified.
2 The term "free appropriate public education" means special education and related services that -
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.
20 U.S.C. § 1401(8).