06-022

      Petitioners appeal from a decision of an impartial hearing officer which determined that the educational program and services respondent's Committee on Special Education (CSE) had recommended for their son for the 2005-06 school year were appropriate.  The appeal must be dismissed.

            At the time of the impartial hearing in September and October 2005, the child was 10 years old and was enrolled in the fourth grade at an elementary school in respondent's district.  The child's eligibility for special education programs and services as a student with multiple disabilities is not in dispute on appeal (8 NYCRR 200.1[zz][5]).¹

           The child was referred for an audiological evaluation regarding possible hearing loss at age four (Tr. p. 402; Parent Ex. 14 at p. 2; Parent Ex. 18 at p. 1).  Initial testing indicated that the child had a moderate to severe conductive hearing loss in both ears (Tr. p. 403), which may have been present since birth (Tr. p. 405).  The child received speech and occupational therapy in preschool (Tr. p. 316; Parent Ex. 8 at p. 1; Dist. Ex. 2 at p. 1), and reportedly had a hearing aid by the time he entered kindergarten (Tr. p. 318).  In June 2000, the CSE classified the child as a student with a speech impairment and recommended that he receive special education and related services (Parent Ex. 1 at p. 1). 

         In July 2002, the CSE recommended that the child's classification be changed from a student with a speech impairment to a student with a hearing impairment (Parent Ex. 3 at p. 1).  For the 2002-03 school year (first grade), the child's recommended program included enrollment in a regular education first grade classroom (Parent Ex. 3 at pp. 2, 4) with speech therapy twice weekly and a monthly consultation from a teacher of the deaf/hearing impaired (Parent Ex. 3 at p. 1; Parent Ex. 8 at p. 2; Dist. Ex. 2 at p. 2).

         During the 2002-03 school year, the child's regular education teacher expressed concern regarding the child's academic progress, particularly as it related to reading, writing, and mathematics (Parent Ex. 8 at p. 2; Dist. Ex. 2 at p. 2).  In February 2003, respondent's school psychologist conducted a psychological evaluation as part of the child's triennial review (Parent Ex. 8; Dist. Ex. 2; Tr. p. 236).  Administration of the Wechsler Intelligence Scale for Children-Third Edition (WISC-III) yielded a verbal IQ score of 78, a performance IQ score of 91, and a full scale IQ score of 83 (Parent Ex. 8 at p. 2; Dist. Ex. 2 at p. 2; Tr. p. 237).  The school psychologist reported that because of the child's hearing impairment, results of his performance on nonverbal tests provided the best estimate of his cognitive abilities (Parent Ex. 8 at p. 4; Dist. Ex. 2 at p. 4; Tr. pp. 237, 260), which she judged to be in the average range (Parent Ex. 8 at p. 5; Dist. Ex. 2 at p. 5).  The school psychologist concluded that the large discrepancy between the child's verbal and non-verbal problem-solving skills indicated a processing deficit in the area of verbal reasoning (Parent Ex. 8 at p. 5; Dist. Ex. 2 at p. 5).  In addition, the child's performance on the Wide Range Assessment of Memory and Learning (WRAML) revealed visual and verbal memory deficits (Parent Ex. 8 at pp. 4, 5; Dist. Ex. 3 at pp. 4, 5; Tr. pp. 240, 263).  The school psychologist concluded that the child had neurological deficits independent of his hearing loss that were indicative of a learning disability (Tr. p. 241).  She suggested that "the best designation for [the child] is multiply disabled" (Parent Ex. 8 at p. 5; Dist. Ex. 2 at p. 5). 

         On March 27, 2003, the CSE met for the child's triennial review (Parent Ex. 4; Dist. Ex. 3).  The CSE recommended a change in classification from a student with a hearing impairment to a student with multiply disabilities (Dist. Ex. 3 at p. 1; Parent Ex. 4 at p. 1).  In addition, the child's recommended program was changed to include special education in the form of resource room services five times per week for 40 minutes (Dist. Ex. 3 at p. 1; Parent Ex. 4 at p. 1).  Monthly consultations by a teacher of the deaf/hearing impaired were reduced to 15 minutes per quarter (Dist. Ex. 3 at p. 1; Parent Ex. 4 at p. 1).  The child's individualized education program (IEP) continued to reflect his need for speech therapy two times per week (Dist. Ex. 3 at p. 1; Parent Ex. 4 at p. 1). 

        Due to language and academic difficulties arising throughout the 2003-04 school year, the child's program was reviewed by the Building Intervention Team twice in March 2004 (Dist. Ex. 5 at p. 1).  A March 2004 speech/language report indicated that the child had shown improvement in his expressive vocabulary, a conclusion supported by the results of standardized testing (compare Dist. Ex. 4 at pp. 1, 2, with Dist. Ex. 1 at p. 1).  The evaluating speech therapist reported that the child was able to provide more information and to use vocabulary and sentence structures that were more age appropriate, but also noted that the child required many prompts, cues, and pictures when describing and answering questions that required higher level thinking (Dist. Ex. 4 at p. 1).  The child had difficulty retaining information and often needed things repeated and restated in order for him to successfully complete a task (id.). 

         In May 2004, the school psychologist reported that the child was experiencing difficulty in several academic areas, including reading acquisition (Dist. Ex. 6).  The school psychologist noted that administration of the Comprehensive Test of Phonological Processing yielded sub-test scores indicating that the child was struggling in all areas of phonological processing (Dist. Ex. 6). The child experienced difficulty with phonological memory, both sequential and at the word level, and his ability to perform rapid naming of both letters and numbers was poor, indicating poor fluency (id.). The psychologist opined that the child's delays in phonological processing were likely contributing to his delays in reading, because if the child was unable to hear sounds clearly, he would be unable to imitate them and commit them to memory (id.).

       The CSE convened on May 6, 2004 for the child's annual review and recommended that the child continue to be classified as a student with multiply disabilities for the 2004-05 school year (third grade) (Dist. Ex. 9 at p. 4; Parent Ex. 5 at p. 4). In addition, the CSE recommended that the child's resource room services be increased from 40 to 90 minutes daily, 60 minutes pull-out and 30 minutes push-in; that the child's speech therapy be increased to three times per week for 30 minutes; and that the child receive a 15 minute quarterly consultation from the teacher of the deaf/hearing impaired (Dist. Ex. 9 at p. 4; Parent Ex. 5 at p. 4).  The child's IEP listed the following supplemental aids/services/ program modifications:  structured learning environment, visual presentation of materials, preferential seating, check for understanding prior to beginning assignment, and monthly consultation with special education staff (Dist. Ex. 9 at p. 9; Parent Ex. 5 at p. 9).  In addition, the child was recommended for the following testing accommodations: time extended (double), preferential seating, minimal distraction, separate location, use of an FM system, directions read and re-read, and passages and questions read (id.).

      At the request of petitioners, the CSE met on December 2, 2004 (Parent Ex. 11; Dist. Ex. 7). According to meeting minutes, petitioner mother expressed concern regarding her son's program (Parent Ex. 10 at p. 1; see also Parent Ex. 11 at p. 1).  In response, the CSE discussed performing an in-depth reading assessment of the child, increasing the amount of time the child was pulled out of the classroom for instruction, and initiating the use of sign language to assist the child with receptive language (Parent Ex. 10 at pp. 1, 2).  Petitioner mother inquired as to whether a BOCES "hearing program" would be an option for her son (Parent Ex. 10 at p. 2).  The CSE recommended that the child continue to receive 90 minutes per week of resource room services; however, the amount of time the child was pulled out of the classroom was increased (Dist. Ex. 9 at pp. 2, 3; Parent Ex. 5 at pp. 2, 3).  In addition, consultations from the teacher of the deaf/hearing impaired were increased from quarterly to weekly (Dist. Ex. 9 at pp. 2, 3; Parent Ex. 5 at pp. 2, 3).

     As a result of the December 2, 2004 CSE meeting, respondent conducted additional evaluations of the child (Parent Ex. 11; Dist. Ex. 7).  As measured by the child's performance on the Diagnostic Placement Evaluation published by McGraw-Hill Reading, the child's independent/instructional reading level was 1.3 (Dist. Ex. 8 at p. 1; see also Parent Ex. 11 at p. 1; Dist. Ex. 7 at p. 1).  The child had difficulty with short vowel sounds and tended to experience the most difficulty with decoding and comprehension when picture cues were not available (Parent Ex. 11 at p. 1; Dist. Ex. 7 at p. 1).  His reading ability affected his comprehension (Dist. Ex. 8 at p. 2).  The child's math skills were reported to be stronger than his reading skills (id.).  According to the child's teacher, petitioners' son understood how to add and subtract, but he counted on his fingers or used a number line because he did not know his basic facts (id.).  The teacher noted that the child was not consistent with his starting place, or with regrouping and carrying when completing addition and subtraction problems (id.).  The child reportedly needed all word problems read for him and needed help figuring out which operation to use (id.).  The child benefited from modeling and talking through problems (id.).  Administration of the Key Math Test-Revised yielded the following composite scores: Basic Concepts Area 68, Operations Area 78, and Applications Area 98 (Parent Ex. 11 at p. 2; Dist. Ex. 7 at p. 2). The student's total test standard score of 83 was in the 13th percentile and yielded a grade equivalent score of 3.2 (Dist. Ex. 8 at p. 1).

     In January 2005, the child's teacher began using a systematic phonics approach to teach the child reading (Tr. p. 210).  Also in January, the child's audiologist conducted an audiological evaluation and central auditory processing testing (Parent Ex. 14).  The audiological evaluation revealed that the child possessed normal hearing for speech in his left ear and a mild loss for speech in his right ear (Parent Ex. 14 at p. 3).  The results of central auditory processing testing suggested that the child had problems with sequential memory as well as mildly impaired figure ground listening skills (Parent Ex. 14 at pp. 1, 3).  The audiologist concluded that overall test results ruled out a significant central auditory processing disorder and recommended that the child receive support services for his hearing loss with emphasis on vocabulary development, sequential memory, and listening skills (id.). She also recommended the continued use of an FM system in the classroom (Parent Ex. 14 at p. 3).  Additional recommendations were made for medical follow up and future testing (id.).

     The CSE reconvened on February 10, 2005, at which time it appears that the committee agreed to refer the child to a BOCES "Deaf Education" program (Dist. Ex. 9 at p. 1; Parent Ex. 5 at p. 1; Tr. p. 469).  The child was then evaluated by an educational audiologist, as recommended by the CSE (Parent Ex. 18; Dist. Ex. 11; Parent Ex. 24 at p. 2; Dist. Ex. 14 at p. 2; Tr. pp. 116, 137-38).  In a report dated March 25, 2005, the educational audiologist noted that the child had recently received new hearing aids, that his FM system did not support the use of the new hearing aids and that the system should be replaced (Parent Ex. 18 at p. 2; Dist. Ex. 11 at p. 2). However, she cautioned that further assessment was necessary to determine whether use of an FM system was appropriate based on the child's type and degree of hearing loss (Parent Ex. 18 at p. 2; Dist. Ex. 11 at p. 2; Tr. pp. 123-24, 129-30, 138). According to the educational audiologist, results of the child's performance on the "Children's Auditory Performance Scale (CHAPS)" indicated that he was mildly "at risk" for listening in noisy situations and in situations requiring auditory sequential skills and auditory attention span (Parent Ex. 18 at pp. 3-4; Dist. Ex. 11 at pp. 3-4; Parent Ex. 23 at p. 2).  The audiologist conducted a functional listening assessment in which she measured the child's ability to respond to speech at different distances with different levels of background noise (Parent Ex. 23 at pp. 2, 3; Tr. p. 131).  Based on her assessment, the audiologist determined that "with his hearing aids alone he does amazing [sic] well in conditions that sort of simulate classroom listening" (Parent Ex. 23 at p. 3).  The audiologist recommended that the child receive educational audiology services one hour per month and audiological assessments every six months to monitor thresholds (Parent Ex. 18 at p. 5; Dist. Ex. 11 at p. 5).  She noted that the use of hearing aids at home was essential and that the provision of an appropriate FM system was warranted (Parent Ex. 18 at p. 5; Dist. Ex. 11 at p. 5).  In addition, she made recommendations for eliminating extraneous noise in the classroom (Parent Ex. 18 at p. 4; Dist. Ex. 11 at p. 5).

       In a March 2005 memo prepared for the annual review, the child's speech therapist reported the results of updated speech and language testing (Parent Ex. 15; Dist. Ex. 10). The child's standard score of 117 (87th percentile) on the Peabody Picture Vocabulary Test-Third Edition, indicated that his receptive vocabulary skills were in the normal range for his chronological age (Parent Ex. 15 at pp. 1, 2; Dist. Ex. 10 at pp. 1, 2; Parent Ex. 23 at pp. 6-7).  The child's expressive vocabulary, as measured by the Expressive Vocabulary Test (EVT), was below the normal range for his chronological age (standard score 79, 8th percentile) (Parent Ex. 15 at pp. 1, 2; Dist. Ex. 10 at pp. 1, 2; Parent Ex. 23 at pp. 6-7). On the Test of Auditory Reasoning and Processing Skills (TARPS), the child's standard score of 80 was in the 9th percentile (Parent Ex. 15 at pp. 1, 2; Dist. Ex. 10 at pp. 1, 2). The child had difficulty processing auditory information, putting his thoughts together, coming up with an answer and verbalizing the answer in a meaningful way (Parent Ex. 15 at p. 2; Parent Ex. 10 at p. 2). On the "WORD Test-Revised," the child's performance on individual subtests yielded scores ranging from the 1st percentile (associations, synonyms, antonyms) to the 9th percentile (definitions), with his total test score falling in the 1st percentile (Parent Ex. 15 at p. 1; Dist. Ex. 10 at p. 1).  As in prior reports, the speech therapist indicated that the child was making slow, steady progress and using vocabulary and sentence structures that were more age appropriate (Parent Ex. 15 at p. 2; Dist. Ex. 10 at p. 2).  The therapist noted that the child continued to display significant word finding difficulties, which was causing him increasing frustration (id.). 

       In March 2005, staff from BOCES observed the child in his regular education classroom (Dist. Ex. 12; Tr. pp. 84, 172, 212, 246-47, 340-41).  By letter to respondent dated May 27, 2005, the BOCES administration indicated that the child's placement in respondent's school appeared to be appropriate and consistent with his educational needs (Parent Ex. 21; Dist. Ex. 13; Parent Ex. 24 at pp. 2-3).  The BOCES administration agreed with the CSE's recommendation to provide the child's program within the district, concluding that such a placement could "enhance his learning and success" (Parent Ex. 21; Dist. Ex. 13).

       The CSE convened on June 2, 2005 (Parent Ex. 22; Dist. Ex. 16).  An attorney for petitioners was present, as was the child's mother and aunt, and a BOCES representative, among others (Parent Ex. 23; Tr. pp. 161-62, 171, 211, 326, 341, 344). The CSE developed an IEP indicating that the child was friendly with peers and staff, liked to please, and was motivated and wanted to learn (Parent Ex. 6 at p. 3; Dist. Ex. 17 at p. 2).  Regarding the child's needs and present levels of performance, the child was described as having weaknesses in auditory discrimination, attending for long periods, and getting started on work independently.  In the regular education setting, he required that everything be read to him (Parent Ex. 6 at p. 3; Dist. Ex. 17 at p. 2).  The IEP reflected the child's conductive hearing loss and his need for bilateral hearing aids (Parent Ex. 6 at p. 5; Dist. Ex. 17 at p. 4). It noted that an FM system would be used on a trial basis to determine if it was warranted for everyday use (Parent Ex. 6 at p. 2; Dist. Ex. 17 at p. 1). According to the IEP, the child required a "great deal" of prompting and reminders to stay focused; required assistance when completing all in-class assignments in the areas of reading, math, and writing; needed to be seated near the teacher during instruction and independent seatwork time; and needed all class work to be reduced and modified (Parent Ex. 6 at p. 5; Dist. Ex. 17 at p. 4).

       In reading, the child was working at the mid first grade level (Parent Ex. 6 at p. 3; Dist. Ex. 17 at p. 2).  Although he was able to identify all letter and consonant sounds, the child frequently confused long and short vowel sounds (Parent Ex. 6 at p. 3; Dist. Ex. 17 at p. 2).  He also had difficulty recognizing learned sight words in text and had difficulty tracking (Parent Ex. 6 at p. 3; Dist. Ex. 17 at p. 2).  The child's IEP indicated that he worked best using a systematic phonics program, and was currently using the STARS program (Parent Ex. 6 at p. 3; Dist. Ex. 17 at p. 2).  In addition to difficulty decoding, the child exhibited weaknesses related to understanding vocabulary, answering questions from a passage he had read or from a passage presented auditorily, and answering questions that required higher level thinking or reasoning (Parent Ex. 6 at p. 3; Dist. Ex. 17 at p. 2).

       The child reportedly had good penmanship and was able to write a sentence with a complete thought, but required prompting in order to write a complete sentence with correct capitalization, punctuation, spelling, and grammar (Parent Ex. 6 at p. 3; Dist. Ex. 17 at p. 2). The child was described as a "phonetic speller" whose writing could be hard to read if the context was unknown (id.). He was unable to retain spelling words beyond spelling tests (id.).

       In mathematics, the child was able to complete basic addition and subtraction problems with the use of manipulatives and prompts (Parent Ex. 6 at p. 4; Dist. Ex. 17 at p. 3).  He required modeling when borrowing and carrying were involved, and was unable to independently count money, tell time, or solve word problems (id.). The child could rote count to 100, identify and write numerals, and was beginning to solve basic multiplication and division problems with the use of multiplication tables (id.).

      The June 2, 2005 CSE recommended that the child remain classified as a student with  multiple disabilities and that his resource room services be increased by one half hour per day for the remainder of the 2004-05 school year (Parent Ex. 6 at p. 2; Dist. Ex. 17 at p. 1).  In addition, the child was recommended for an extended school year (ESY), in part to compensate for the time during the 2004-05 school year when his FM system was not properly functioning (Parent Ex. 6 at p. 2; Dist. Ex. 17 at p. 1; Parent Ex. 23 at pp. 12-14, 18-20; Parent Ex. 22 at p. 3; Dist. Ex. 16 at p. 3).  For the 2005-06 school year, the CSE recommended that the child attend a 15:1+1 self-contained special education class for 230 minutes daily and regular education fifth grade for 100 minutes per day (Parent Ex. 6 at p. 2; Dist. Ex. 17 at p. 1; Tr. pp. 277-85).  The child was to participate in the regular education setting for Science and Social Studies, where he would receive special education support (Parent Ex. 6 at p. 6; Dist. Ex. 17 at p. 5).  In addition, the child was recommended to receive speech therapy for thirty minutes three times per week, services from the teacher of the deaf/hearing impaired once weekly for thirty minutes, consultation by an educational audiologist one hour per month (Parent Ex. 6 at p. 2; Dist. Ex. 17 at p. 1; Parent Ex. 22 at p. 1; Dist. Ex. 16 at p. 1).  The child's IEP reflected the addition of three new supplemental aids/services/program modifications for the 2005-06 school year: modified/reduced classwork, modified/reduced homework and use of manipulatives/math charts (Parent Ex. 6 at p. 7; Dist. Ex. 17 at p. 6).  The child's test accommodations remained the same as in the prior IEP, with the exception of the use of an FM system, which was removed from the 2005-06 IEP (Parent Ex. 6 at p. 7; Dist. Ex. 17 at p. 6).  The IEP contained speech and language goals and objectives, as well as academic goals and objectives related to reading, writing and math (Parent Ex. 6 at pp. 8-16; Dist. Ex. 17 at pp. 7-15).

       Petitioner mother indicated that she would not make a decision regarding the program proposed for the 2005-06 school year until she was able to observe it (Parent Ex. 23 at p. 11, 18; Parent Ex. 22 at p. 3; Dist. Ex. 16 at p. 3).  Following their observation of the recommended program, petitioners informed respondent's assistant director of special education that they would not accept the CSE's recommended placement for their son (Tr. p. 332).

       In July 2005, petitioners requested an impartial hearing contending that the CSE's recommended program was not designed for, nor could it easily accommodate, a child with a hearing impairment (Parent Ex. 30 at p. 1; Dist. Ex. 18; Pet. ¶ 31). In addition, petitioners contended that the child was inappropriately classified as a student with multiple disabilities and argued that he would be more appropriately classified as a student with a hearing impairment (Parent Ex. 30 at p. 2; Dist. Ex. 18 at p. 2). Petitioners requested reimbursement for a summer tutoring program targeting the child's reading deficits (Parent Ex. 30 at pp. 1, 2; Dist. Ex. 18 at pp. 1, 2). They also requested that the child be placed in the BOCES program for deaf and hearing impaired children (Parent Ex. 30 at p. 2; Dist. Ex. 18 at p. 2). 

       A summer progress note dated August 12, 2005 indicated that the child attended respondent's summer program for fifteen of thirty days, and he worked on identifying vowel sounds as well as other decoding skills (Parent Ex. 28).  Petitioner mother indicated that she removed her son from the summer program and hired a tutor to work with him on reading and phonemic awareness (Tr. pp. 329-30). 

            An impartial hearing was held on September 30, 2005, October 4, 2005 and October 21, 2005.  At the impartial hearing, petitioners argued that the IEP was invalid due to the lack of an additional parent member and their own inability to participate at the June 2, 2005 CSE meeting.  Petitioners also asserted that respondent’s proposed placement was not appropriate and that the child should be placed in the BOCES program for children who are deaf and hearing impaired.  Petitioners further asserted that the child should not be classified as a student with multiply disabilities and should only be classified as a student with a hearing impairment.  Finally, petitioners requested tuition reimbursement for a tutor they had hired during summer 2005.  Respondent argued that its proposed placement was appropriate because the child’s reading and math needs would be addressed in the least restrictive environment (LRE). 

            In a decision dated January 30, 2006, the impartial hearing officer determined that he did not have subject matter jurisdiction, due to insufficiency of the hearing request, regarding the claim that the IEP was invalid due to the lack of an additional parent member.  He determined that the issue should therefore be resolved in favor of respondent, and also found that there was no evidence that petitioners were deprived of a meaningful opportunity to participate in the development of the IEP.  Regarding the child's classification, the impartial hearing officer ordered that respondent re-evaluate the child to determine if the child should be classified as a student with a hearing impairment or a student with multiply disabilities.  The impartial hearing officer also determined that respondent's proposed placement was appropriate and that the BOCES program was not an appropriate setting for the child.  Finally, the impartial hearing officer ordered respondent to pay 50% of the cost of the tutor for the summer of 2005.  Neither party is contesting the portion of the decision regarding tuition reimbursement.  Respondent asserts that its classification of the child is correct, but does not object to additional evaluation or further consideration by the CSE, and therefore, classification is not an issue on appeal. 

            Petitioners appeal and assert that the impartial hearing officer erred in determining that he lacked subject matter jurisdiction regarding the issue of the additional parent member at the June 2, 2005 CSE meeting.  They argue that the IEP was compromised by the lack of an additional parent member and by their inability to participate and therefore the IEP is invalid.  Petitioners also argue that the 2005-06 IEP and the placement offered were not reasonably calculated to enable the child to receive educational benefits because it failed to adequately accommodate the child's hearing loss, and that the BOCES program requested by petitioners is reasonably calculated to provide the child with an appropriate education.   Specifically, petitioners' arguments include claims that the teacher in the recommended program would not use a reading program designed to help the child progress in reading; that the recommended related services are inadequate; that the amount of time the child spends with the teacher of the deaf/hearing impaired is inadequate, as is the substance of the service provided; that the recommended frequency for speech therapy is inadequate; that the recommended teacher does not have experience working with children with hearing impairments; and that there will not be any other hearing impaired children in the child's classroom.  Petitioners argue that the program recommended by respondent would be more restrictive than the BOCES program preferred by petitioners.  On appeal, petitioners seek to have the June 2, 2005 IEP annulled and have the child placed in the BOCES program.  Respondent denies petitioners' allegations, denying that the June 2, 2005 failed to offer the child a free appropriate public education (FAPE).

            A purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487)² is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528 [2005]).  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[8]; 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 complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).  While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]).  A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, or seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]).  In evaluating the substantive program developed by the CSE, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002] [quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998][citation and internal quotation omitted]).  This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak 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; see Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d at 379; Walczak, 142 F.3d at 132).

            An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]).  School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 1).  Pursuant to the version of the IDEA in effect at all relevant times herein (see footnote 1), an IEP was required to 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, the IDEA mandates that all students with disabilities be educated with nondisabled children to the maximum extent appropriate and may only be removed to a more restrictive environment when the nature and 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][5][A]; 34 C.F.R. § 300.550[a][2]; Oberti v. Bd. of Educ., 995 F.2d 1204, 1213 [3d Cir. 1993]; Briggs v. Bd. of Educ., 882 F.2d 688, 691 [2d Cir. 1989]; Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 [5th Cir. 1989]; Warton v. Bd. of Educ., 217 F. Supp.2d 261, 273 n.1 [D. Conn. 2002]; A.S. v. Norwalk Bd. of Educ., 183 F. Supp.2d 534, 538 n.3 [D. Conn. 2002]; Mavis v. Sobol, 839 F. Supp. 968, 982 n.25 [N.D.N.Y. 1994];  Application of a Child with a Disability, Appeal No. 03-009; Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 94-21). "[S]pecial education and related services must be provided in the least restrictive setting consistent with a [student's] needs" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]).

            The test for determining whether a school district has complied with the LRE requirement consists of two prongs: 1) whether the student can be educated in a regular classroom with the use of supplemental aids and services, and 2) whether the school district has mainstreamed the student to the maximum extent appropriate (Daniel R.R., 874 F.2d at 1048; Oberti, 995 F.2d at 1213; Warton, 217 F. Supp.2d at 274; A.S. v. Norwalk, 183 F. Supp.2d at 542 n.8; Mavis, 839 F. Supp. at 985; Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 98-24). Several factors must be considered at each stage of the inquiry. When determining whether a student with a disability can be educated satisfactorily in a regular class with supplemental aids and services, these factors include, but are not limited to: "(1) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students in the class" (Oberti, 995 F.2d at 1217-18; see also Daniel R.R., 874 F.2d at 1048-1049; Mavis, 839 F. Supp. at 987-990; Application of a Child with a Disability, Appeal No. 03-009; Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 94-21).

            First, petitioners contend that the impartial hearing officer erred when he determined that he lacked subject matter jurisdiction over petitioners' claim regarding the absence of an additional parent member at the June 2, 2005 CSE meeting.  The impartial hearing officer found that petitioners failed to give proper notice to respondent regarding this claim, pursuant to 8 NYCRR 200.5(j)(1)(ii), which states that "the party requesting the impartial due process hearing shall not be allowed to raise issues at the impartial due process hearing that were not raised in the notice filed under subdivision (i) of this section, unless the other party agrees otherwise."  The impartial hearing officer therefore concluded that he lacked subject matter jurisdiction over this claim because the requisite notice was lacking.  Petitioners argue that the requirements of 8 NYCRR 200.5(j)(1)(ii) do not apply because the regulation was not in effect when petitioners filed their due process impartial hearing request.    I concur with the conclusion of the impartial hearing officer that petitioners were required to identify any issues to be raised at the impartial hearing in the impartial hearing request.  At the time of the impartial hearing request, IDEA 2004,² effective July 1, 2005, required as follows:  "The party requesting the due process hearing shall not be allowed to raise issues at the due process hearing that were not raised in the notice filed under subsection (b)(7), unless the other party agrees otherwise" (20 U.S.C. § 1415[f][3][B]).  In the present case, the impartial hearing request was made in July 2005 (Parent Ex. 30 at p. 1; Dist. Ex. 18; Pet. ¶ 31), and therefore this requirement of IDEA 2004 applies to the request.  Additionally, although not required by the IDEA, New York State law requires the presence of an additional parent member on the committee that formulates a student's IEP (see N.Y. Educ. § 4402[b][1][a]; 8 NYCRR 200.3[a][1][viii]). In their impartial hearing request, petitioners failed to identify the issue of the absence of an additional parent member at the June 2, 2005 CSE meeting (id.), and therefore, in accord with IDEA 2004, this issue could not properly be raised at the impartial hearing.  The impartial hearing officer properly determined that he could not consider this claim.

            Even assuming that the issue of the absence of an additional parent member had been properly before the impartial hearing officer, I would still concur that respondent should prevail on this issue.  The record establishes that the failure to have an additional parent member at the June 2, 2005 CSE meeting did not seriously infringe upon petitioners' opportunity to participate in the IEP formulation process, or compromise the development of an appropriate IEP in a way that deprived the child of educational benefits.  A recent court decision held that there was no indication in that case that the absence of the parent member resulted in a loss of educational opportunity for the student or infringed on the parent’s ability to participate in the CSE meeting (Board of Education of the City School District of New York v. Mills, 2005 WL 1618765, * 5 [S.D.N.Y.]).   The court's analysis was adopted in Application of the Bd. of Educ., Appeal No. 05-058.  After applying this analysis to the facts of the present case, I likewise find that the absence of the additional parent member here did not result in a loss of educational opportunity for this child nor infringe on petitioners’ ability to participate in the CSE meeting.  Petitioners are familiar with the CSE process and were represented by counsel at the CSE meeting on June 2, 2005 (Tr. p. 326).  Further, during the first day of the impartial hearing, respondent offered to reconvene the CSE and ensure that an additional parent member was in attendance (Tr. p. 21).  Petitioners declined this offer (Tr. p. 21).  Petitioners also stated that the lack of an additional parent member was not a reason that they would not continue with a CSE meeting (Tr. p. 351).  As set forth above, and under the circumstances of the present case, this procedural error did not result in a loss of educational opportunity for the child nor infringe on petitioners' ability to participate in the CSE meeting.  Therefore, I concur with the conclusion of the impartial hearing officer that respondent should prevail on this issue.  If petitioners had objected to proceeding with the CSE meeting in the absence of an additional parent member, this conclusion may have been different.

            Petitioners also contend that the CSE conducted the June 2, 2005 meeting in a manner that led petitioner mother to feel that she was not an active participant.  There is no indication in the transcript of the June 2, 2005 meeting that petitioner mother did not feel free to ask questions, nor that she was not free to disagree with or question the recommendations of the CSE (Parent Ex. 23).  Further, petitioners’ attorney made no objections during the meeting that petitioner mother was unable to express her views (Parent Ex. 23).  Under the circumstances, I concur with the impartial hearing officer’s decision that the record establishes that petitioners had a meaningful opportunity to participate in the development of the IEP.             

            Next, petitioners assert that the 2005-06 IEP and the placement offered were not reasonably calculated to enable the child to receive educational benefit.  The impartial hearing officer disagreed, finding that the 2005-06 IEP and classroom placement were appropriate, and I concur.  A review of the child's 2005-06 IEP confirms that that the CSE developed goals and objectives to target the child's identified needs (Parent Ex. 6 at pp. 8-16; Dist. Ex. 17 at pp. 7-15).  The child's IEP contains academic goals addressing the child's needs in reading, writing, and mathematics.  The reading goals include objectives related to identifying long and short vowel sounds, decoding unknown words in isolation and context, and blending sounds together to decode unfamiliar words (Parent Ex. 6 at p. 8; Dist. Ex. 17 at p. 7).  Additional objectives target the child's comprehension of selections read to, and independently by, the child (Parent Ex. 6 at p. 9; Dist. Ex. 17 at p. 8).  The IEP includes goals and objectives for speech related to recalling and reproducing information presented in the classroom, answering wh-questions and making predictions, and recalling and reproducing words already in his vocabulary without delay (Parent Ex. 6 at pp. 13-15; Dist. Ex. 17 at pp. 12-14).  In order to address the child’s hearing loss, the 2005-06 IEP provides for consultation with an educational audiologist, consultation with a teacher for the deaf/hearing impaired, speech therapy and the trial use of an FM system to augment his new digital hearing aids (Parent Ex. 6; Dist. Ex. 17).   

           A classroom profile submitted by respondent suggests that the child would have been suitably grouped for instruction in the recommended class (Dist. Ex. 19).  All but one student in the recommended class demonstrated age-appropriate physical and social needs, and five of the eight students demonstrated age-appropriate management needs (id.).  Of the remaining children in the class, one required an individual aide, one required adult support, and one was described as needing structure (id.).  The reading abilities of the children in the class ranged from first to third grade level, with one child performing at the readiness level (id.).  The children's math abilities ranged from the second to fourth grade level, with one child performing at the readiness level (Dist. Ex. 19).  According to testimony from respondent's witnesses, the recommended program would have met the child's needs in that it would have provided him with additional academic support (Tr. pp. 104, 245, 249, 199, see also 280, 215) and more individualized instruction (Tr. pp. 104, 474).  In addition, the child would have been grouped with other children at the same instructional level (Tr. pp. 245, 483, 215, 475).  The child's classroom teacher opined that the recommended program would have been perfect for the child "because he is so strong at participating as far as communicating when there's content areas such as social studies and science" (Tr. pp. 85-86).  She noted that the recommended program also would have provided the child with support to address his individual needs in reading, writing, and math (Tr. p. 86).  The educational audiologist opined that the smaller class size would have been less noisy and would have provided a better acoustical environment for the child (Tr. p. 158).  According to the school psychologist, the child's skill deficits, such as phonological awareness, were "drilled on a consistent basis every day" in the recommended classroom (Tr. p. 249).  The psychologist indicated that regular education classes for Science and Social Studies would likely have been comprised of 18-22 students (Tr. p. 184), with up to five students from the special education class pushed in, along with a special education assistant or teacher (Tr. pp. 184-85).  Children are to be placed according to their individual needs and not by classification (8 NYCRR 200.6[3]), as petitioners suggest.  Based on the content of the June 2, 2005 IEP created by the CSE as detailed above, I find that the classroom placement as set forth in the 2005-06 IEP was designed to provide the child with a FAPE and was reasonably calculated to confer educational benefit as required by the IDEA. 

         Petitioners also argue that the recommended speech services are inadequate because the child failed to meet the previous year's goals and objectives when given the same frequency of therapy, three times per week for thirty minutes.  The evidence in the record does not support this assertion.  The exhibits cited by petitioners document the child's progress on the child's goals and objectives through November 4, 2004 (Parent Ex. 5 at pp. 23-24).  The child's 2005-06 IEP contains five speech objectives carried over from the child's 2004-05 IEP (Parent Exs. 5, 6).  However, the evaluative criteria for all of the objectives indicate that a higher level of mastery would have been required to achieve the 2005-06 objectives (Parent Ex. 5, pp. 14, 15, 17; Parent Ex. 6, pp. 13-15).  There is no basis in the record for concluding that the recommended frequencies for speech therapy are inadequate.

        Petitioners also argue that the amount of time recommended for consultation with the teacher of the deaf/hearing impaired, once weekly for thirty minutes, is inadequate, as is the proposed substance of this service.  The record does not support this assertion.  The child's IEP recommends that the teacher of the deaf/hearing impaired provide assistance/support to the classroom teacher, to other school based service providers and to petitioners regarding auditory and/or communication difficulties; will assist in developing, implementing, and maintaining an appropriate educational program for the child within the classroom; will provide information relative to the child's auditory deficits, the impact on his learning style, socialization and communication within the environment; and will provide assistance regarding any difficulty, question or concern relating to auditory amplification equipment (Parent Ex. 6 at p. 5; Dist. Ex. 17 at p. 4). While petitioners’ witness, a psychologist from the Rochester Institute of Technology, testified that 30 minutes per week with a teacher of the deaf would not be enough for a child who was struggling academically (Tr. pp. 452-53), he also confirmed that he had never met the child or reviewed any records in regard to the case (Tr. p. 443). Respondent's assistant director of special education testified that at a previous CSE meeting the services of the teacher of the deaf/hearing impaired were increased at the request of petitioners (Tr. p. 473) and noted that, since she had been working with the family, they had not made any similar requests that had been denied (Tr. p. 474).   Although petitioners assert that the teacher of the deaf/hearing impaired spent most of his weekly consultation session teaching the child to advocate for himself rather than working on academics or language skills, the record reveals that the teacher worked on advocacy skills at the behest of the child's advocate (Tr. pp. 27, 47).  Furthermore, the teacher testified that he did work on academic skills with the child, including math skills (Tr. p. 27), decoding, and word meaning (Tr. pp. 47, 63).  In summary, the record does not support petitioners' claim relative to the amount or substance of the consultation time with the teacher of the deaf/hearing impaired.

      Petitioners also assert that respondent should have developed a resource room curriculum that utilizes the child's visual strengths and they suggest that without such a curriculum the child will not progress in reading.  Petitioners further argue that respondent produced no evidence to demonstrate that the teacher in the recommended program would use a reading program designed to help the child progress in reading.  The record indicates that following a December 2004 assessment of the child's reading skills (Parent Ex. 1; Dist. Exs. 7, 8), the child's resource room teacher began using STARS, a systematic phonics program based on the Orton-Gillingham approach, to teach the child reading (Tr. p. 210).  In addition, the teacher instructed the child using respondent's basal reading series (Tr. p. 210).  According to the teacher, the STARS program included visual and auditory components and was different from the regular education reading program used by respondent (Tr. pp. 217-18).  Respondent's assistant director of special education indicated that the STARS program incorporated Wilson methodology (Tr. pp. 481-82). The resource room teacher testified that she had informed the teacher of the child's recommended class that she was instructing the child using a phonics program and that something similar would be beneficial to the child (Tr. pp. 223-24).  The teacher of the child's recommended class reportedly responded that she had used various programs and would work with the child at his level (Tr. p. 224).  She further indicated that she would divide her class into small groups for reading based on level and ability (Tr. p. 219).  The record therefore does not support petitioners' claim regarding the curriculum being used to teach the child reading.

       Petitioners argue that the impartial hearing officer erred by failing to consider the teaching methodology that would be used.  I disagree.  The child's IEP for the 2005-06 school year indicated that he worked best with a systematic phonics program and was currently using the STARS program (Parent Ex. 6 at p. 3; Dist. Ex. 17 at p. 2).  According to respondent's assistant director of special education, special education teachers choose reading programs based on what works and what does not (Tr. p. 481).  A CSE is not required to specify methodology on an IEP, and the precise teaching methodology to be used by a child's teacher is generally a matter to be left to the teacher (Application of a Child with a Disability, Appeal No. 05-053).  Petitioner mother testified that when she visited the recommended program she was told that the Orton-Gillingham methodology could not be implemented in that program (Tr. pp. 332, 353).  It is not clear if she was referring to any Orton-Gillingham based program or the specific program employed by the child's tutor.  According to petitioner mother, she reported this to the assistant director of special education (Tr. pp. 332).  The assistant director of special education reportedly responded that the teacher did not know the child and if the child were to attend the recommended program "we would have to talk to her more about [the child's] history and his background and talk to her about that" (Tr. p. 332).

      When petitioners expressed concern regarding their child's progress in December 2004, respondent immediately re-evaluated the child and implemented new instructional methodologies designed to address the child's reading deficits (Dist. Exs. 7, 8; Tr. pp. 375-76).  The IEP developed for the 2005-06 school year included goals and objectives targeting the child’s identified needs as they related to reading (Parent Ex. 6 at pp. 8, 9; Dist. Ex. 17 at pp. 7, 8).  Petitioner mother agreed that these goals and objectives represented what the child needed to learn (Tr. p. 362).  Although not listed on the child's 2004-05 IEP (the pendency placement), respondent continued to provide the child with reading instruction using the STARS program during the 2005-06 school year (Tr. pp. 211, 228).  Both respondent and the child's tutor instructed the child using reading programs based on the Orton-Gillingham approach (Tr. pp. 210, 386) and both teachers reported that the child made progress based on this type of instruction (Tr. pp. 208, 227, 388, 393).  The record suggests that respondent intended to continue to provide instruction using a systematic phonics approach.  I note that the IEP was not required to list teaching methodology, and I concur with the impartial hearing officer that the program as set forth above and on the 2005-06 IEP was reasonably calculated to confer educational benefit to the child.

       Additionally, petitioners contend that in order to improve academically the child requires placement in a total communication environment.  I disagree.  Based on all of the evidence in the record, I concur with the impartial hearing officer that respondent's proposed program was appropriate.  Petitioners assert that the child is a visual learner who would benefit from visual cues when learning language and reading. Petitioner mother testified that she thought signed English would help the child understand visually things that he did not understand orally because of his auditory processing problems (Tr. p. 337).  She reported that she had been using finger spelling to teach the child his spelling words since second grade (Tr. 337). 

      Petitioners and respondent presented witnesses that conflicted on the issue of the appropriateness of a total communication environment for the child.  Petitioners' audiologist testified that studies had shown that children in classrooms where total communication was used demonstrated improved reading skills (Tr. pp. 301-02).  A professor from the National Technical Institute for the Deaf, who was not familiar with the child, testified that sign supported speech would help a child with a mild to moderate hearing loss learn to read because it is a visual support of the English language (Tr. pp. 423, 426).  A professor of psychology from the Rochester Institute of Technology, who was also not familiar with the child, testified that sign supported speech would help a child with a learning impairment learn to read because it would increase the child's access to language (Tr. p. 444).  He noted that, for children experiencing a hearing loss, the production and reception of spoken language could be delayed and that delay would affect the child's vocabulary development, understanding of grammar, and understanding of syntax (Tr. pp. 444-45, 451).

        However, respondent's witnesses testified that the child's primary mode of communication was "audition hearing and speech," and that he had minimal if any sign language skills (Tr. pp. 35, 128-29).  Several witnesses suggested that introducing a new language (sign language) would be difficult for the child (Tr. pp. 85, 180, 250, 273) or even detrimental (Tr. pp. 134; see also Tr. pp. 37, 88).  The educational audiologist opined that the child's reading deficits would not be addressed through sign language (Tr. p. 126).  She testified that, based on education, experience and knowledge of research, she did not see a link between "a conceptually based manual form of communication that is visual and the reading and decoding of speech" (Tr. p. 127, see also Tr. p. 152).

       The record indicates that the child has decoding deficits, as well as deficits in vocabulary and expressive language, and in using appropriate grammar when writing. Given that the child's primary mode of communication is audition and speech, not sign language, and that he is able to hear and function well in the classroom, I cannot conclude that placement in a total communication environment is necessary for the child to receive educational benefit.  However, while testimony suggests that the use of sign language would not address the child's weaknesses in phonemic awareness and decoding, it also suggests that the use of visual and tactile cues would likely assist the child in improving in these areas. In addition the record suggests that the use of sign language might assist the child with vocabulary development, comprehension, and grammar and when appropriate should be considered as an augmentative instructional strategy.

       Petitioners also contend that the BOCES program is more appropriate for their child.  I concur with the impartial hearing officer that the record does not support petitioners' suggested placement of the child in the BOCES program for the deaf and hearing impaired.  The BOCES program was considered by the CSE and ruled out.  There is no testimony by any educational expert who is familiar with the child to support the suggested BOCES placement.  None of respondent's staff that met with BOCES staff or visited the BOCES program thought that the program sought by petitioners would be appropriate for the child (Tr. pp. 34, 84, 173, 212, 251).  The educational audiologist, who had previously worked at the BOCES program, opined that it was not an appropriate placement for the child (Tr. pp. 125-27).  At the June 2, 2005 CSE meeting, the special education supervisor for BOCES deaf education stated that it appeared that respondent was meeting the child's needs in the LRE (Parent Ex. 23 at pp. 4, 5).  In an August 12, 2005 report, subsequent to petitioners' request for an impartial hearing, the child's audiologist opined that placement in a 12:1 aural classroom for hearing impaired children should be considered, along with the use of Signing Exact English as a supplement to verbal instruction in the classroom (Parent Ex. 27 at p. 2).  The audiologist acknowledged that, despite her now-changed recommendation, the results of her testing were in fact consistent with the results she obtained in January 2005 (Tr. pp. 304-05).  However, she had never previously made a recommendation for an aural classroom for the child.  She also confirmed that to the extent she had any new information it was provided by the child's mother (Tr. pp. 305, 308-09, 310).  Petitioners also presented two witnesses who testified globally regarding the benefit of using a total communication approach or sign language with children with hearing impairments, but neither of these witnesses had ever met the child (Tr. pp. 420-37, 442-64).  In summary, the record contains no documentation or testimony of any professional recommending the specific BOCES program requested by the parent.  Furthermore, there is nothing in the record to indicate how the BOCES program would have addressed the child's individual needs, particularly as they related to reading.  Based on the evidence presented, I do not find that the BOCES program would be the appropriate placement for the child and the CSE appropriately considered and ruled out the BOCES placement option.

        In light of the aforementioned analysis, I concur with the impartial hearing officer that the June 2, 2005 IEP offered the child a FAPE as set forth above.⁴

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

THE APPEAL IS DISMISSED.