Application of the BOARD OF EDUCATION OF THE NISKAYUNA CENTRAL SCHOOL DISTRICT, for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for petitioner, Susan T. Johns, Esq., of counsel
Andrew K. Cuddy, attorney for respondents
Petitioner, the Board of Education of the Niskayuna Central School District (district), appeals from the decision of an impartial hearing officer, which annulled the child's 2005-06 individualized education program (IEP) based solely upon the impartial hearing officer's determination that petitioner's K-2 special class did not comply with the Regulations of the Commissioner of Education and which refused to accept documents into evidence that allegedly vindicated petitioner's position with respect to the K-2 special class regulatory violations. Respondents cross-appeal and allege that the impartial hearing officer erred when he found that petitioner offered an appropriate program and placement to the child for the 2005-06 school year, that petitioner's progress reports were adequate under state and federal law, that petitioner did not need to conduct a functional behavior assessment (FBA) of the child prior to offering a placement for the 2005-06 school year, and that petitioner's goals and objectives/ benchmarks set forth in the 2005-06 IEP were meaningful and measurable. The appeal must be sustained. The cross-appeal must be dismissed.
The impartial hearing occurred on December 6, 7, and 8, 2005 (Tr. pp. 1, 152, 361). At that time, the child, diagnosed with Down syndrome, was seven years old and attending first grade at petitioner's Rosendale Elementary School (Rosendale) (Tr. pp. 26, 28-29, 545). The child's eligibility for special education programs and classification as a student with multiple disabilities are not in dispute in this appeal (see 8 NYCRR 200.1[zz]).
The child first attended petitioner's district in the 2003-04 school year when she entered kindergarten at Rosendale in September 2003 (Dist. Ex. 3). Prior to kindergarten, the child received special education services at her nursery school, including speech and language therapy, occupational therapy, and physical therapy. She had a diagnosis of Down syndrome and had a partial hearing loss in one ear. Administration of the Bayley Scales of Infant Development—2nd Edition as part of a psychological evaluation conducted in April 2001 resulted in a score for the child that fell within the significantly delayed range.
In June 2003, the child underwent kindergarten screening within petitioner's district (Dist. Ex. 3). Petitioner's psychologist conducted the screening. The child's performance on the Stanford-Binet Intelligence Scale (4th Edition) vocabulary subtest yielded a score within the significantly delayed range of functioning, consistent with the April 2001 assessment. At that time, petitioner's psychologist recommended that the child be considered for classification as a student with multiple disabilities and further recommended placement in petitioner's K-2 program to "further develop her academic skills and to provide her therapies" (Dist. Ex. 3 at p. 2). The psychologist noted that the child did not require a structured behavior plan.
Petitioner's Committee on Special Education (CSE) classified the child as a student with multiple disabilities and for the 2003-04 school year, recommended placement in the K-2 special class at Rosendale, with speech therapy, occupational therapy, and physical therapy (Dist. Ex. 6 at p. 1; Dist. Ex. 7 at p. 2). With regard to the least restrictive environment (LRE), the child's IEP noted that the child required a "special class program combined with related services to meet specific needs. The child was considered for special school placement, but that was considered too restrictive a program. A consultant teacher/ resource program and/or related services would not provide enough support to meet his/her specific academic and management needs" (Dist. Ex. 6 at p. 4). The CSE minutes indicated that respondents wanted their daughter "included in the mainstream as much as possible" (Dist. Ex. 7 at p. 2). The CSE's recommended program and services allowed the child to attend the mainstream kindergarten class, which met for 2 1/2 hours per day, and "be exposed to more language building skills in the K-2 special class" (id. at p. 2; Tr. p. 30). In the morning, the child attended the mainstream kindergarten class with an aide, and she attended the K-2 special class for reteaching in the afternoon (Dist. Ex. 13 at p. 1; Parent Ex. P-H).
For the 2004-05 school year, the CSE recommended retention in kindergarten and continued attendance in the K-2 special class at Rosendale, with speech therapy, occupational therapy, and physical therapy (Dist. Ex. 13 at p. 1). The CSE minutes noted that the child was "still behind academically" but socially, the child had made gains (id. at p. 1). Under present levels of performance, the CSE noted that, academically, the child progressed at a "slower rate than her peer group" (Dist. Ex. 12 at p. 5). Based upon these recommendations, the child attended the mainstream kindergarten class with an aide in the morning, and she continued to attend the K-2 special class in the afternoon as she had done in 2003-04 (Dist. Ex. 12 at p. 3; Dist. Ex. 13 at p. 2; Parent Ex. P-H).
In May 2005, petitioner's exceptional needs specialist/ special education teacher assessed the child using the Peabody Individualized Achievement Test—Revised (Dist. Ex. 19). The test assessed the child's general information, reading recognition, reading comprehension, mathematics, and spelling. The child's performance yielded results in the low functioning range on all subtests.
By letter dated June 17, 2005, respondents notified petitioner's CSE of concerns regarding their daughter and what programs and services they wanted the CSE to consider for her 2005-06 IEP (Parent Ex. P-H). Specifically, respondents indicated that they believed their daughter's needs would be "best served in a fully included 1st grade class room" (id. at p. 1). Respondents noted that their daughter's "current IEP is positive" and the "proposed recommendation . . . is that she be pulled out for reading and math for individualized instruction and be included in all other subject and specials in the 1st grade class room" (id. at p. 1). Respondents believed that "this program could easily be delivered to her in her home school, which is Birchwood . . . in 1st grade with a consultant teacher support (both direct and indirect)" (id. at p. 1 ).
On June 22, 2005, petitioner's CSE conducted the child's annual review and prepared the child's proposed IEP for the 2005-06 school year (Dist. Ex. 20). The following individuals attended the CSE meeting: petitioner's chairperson, school psychologist, special education teacher, speech therapist, occupational therapist, general education teacher, physical therapist, administrator, principal, parent member, clerk, both parents, and a friend of the parents (id. at p. 5). The CSE minutes document discussions regarding the child's progress and/or performance in speech therapy, occupational therapy, and physical therapy during the 2004-05 school year (Parent Ex. P-G at pp. 7-10). The CSE minutes also document discussions regarding the child's academic performance during the 2004-05 school year (Parent Ex. P-G at pp. 1-7).
The general education teacher who attended the CSE meeting taught the child in her kindergarten class in the 2003-04 and 2004-05 school years (Parent Ex. P-G at p. 1). She stated that based upon her observations of the child during both the mainstream portion of her day and the K-2 portion of her day, the child appeared overwhelmed in the mainstream population, verbalized less, gained very little through modeling her nondisabled peers, required assistance remaining on task, was unable to listen or pay attention to the teacher, was unable to understand conversations the teacher had with other children, and required more verbal prompting. In addition, the teacher indicated that the child had more toileting accidents than in the previous year.
The exceptional needs specialist/ special education teacher who attended the CSE meeting stated that the child's math skills were inconsistent, with the need to "re-teach" and "re-show" (Parent Ex. P-G at p. 5). In addition, she indicated that the child was inconsistent with her colors and shapes and showed inconsistencies in counting and producing numbers. She also noted that the child had "pre-writing" skills" and another CSE member stated that the child could not "independently write her name without highlighted letters or hand over hand" (Parent Ex. P-G at p. 6). The CSE members also discussed the idea of conducting a technology evaluation to help improve the child's ability to communicate (Tr. pp. 6-7) and a FBA to possibly implement a behavior program or rewards system (Tr. pp. 10-11). The CSE reasoned that the FBA should occur in the fall, as opposed to during the child's summer program, because it would provide a more realistic assessment of the child in the school environment (Tr. pp. 28-29).
Respondents raised and discussed concerns at the CSE meeting, consistent with their June 17, 2005 letter, regarding the programs and services they wanted the CSE to consider for the 2005-06 school year (Parent Ex. P-G at pp. 16-30). Specifically, respondents stated that although they understood that their daughter would be fully mainstreamed and receive special education instruction in reading and math, they questioned why those same services could not be implemented in her "home school" and through the use of a consultant teacher model (Parent Ex. P-G at p. 16). The CSE had a full discussion of special education programs and services available and how those services would either meet, or not meet, the child's needs in the LRE ( Parent Ex. P-G at pp. 16-30).
At the conclusion of the CSE meeting, the CSE members, other than the parents, agreed upon placement in the K-2 special class for reading and math instruction, mainstreaming opportunities in the first grade classroom for the rest of her curriculum with a full time teaching assistant, physical therapy, occupational therapy, and speech therapy (Parent Ex. P-G at pp. 16-30). Respondents stated that they were not sure whether they agreed or disagreed with the recommendations, but they wanted the opportunity to continue to look at the program and services and to continue to evaluate the recommendations (Parent Ex. P-G at p. 27).
By letter dated June 24, 2005, petitioner sent respondents a copy of the proposed 2005-06 IEP (Dist. Ex. 22). The letter documented the recommendations for the child's summer 2005 and 2005-06 school year programs and services, which included placement in the K-2 special class (12:1+1) with speech therapy, occupational therapy, physical therapy, and a shared teaching assistant (Dist. Exs. 20, 22). The IEP documented that the special class program would "include opportunities for mainstreaming in specials, recess, gym, music, social studies, science, cafeteria, circle time and assemblies" and that the child would "participate in mainstream activities at the beginning of the day" (Dist. Ex. 20 at p. 1). The IEP also indicated that the child required "[s]mall group instruction with much repetition for continued development of math and reading readiness skills" (Dist. Ex. 20 at p. 3). In addition, the IEP noted that a behavior plan and a technology evaluation would both be completed in the fall (Dist. Ex. 20 at p. 5).
By letter dated July 30, 2005, respondents advised petitioner that the IEP, as drafted, did not accurately reflect what was discussed at the CSE meeting (Dist. Exs. 23, 24). In addition, respondents' letter noted that they did not feel the IEP represented an appropriate placement for their daughter and expressed an interest in discussing their concerns.
By correspondence dated August 16, 2005, respondents requested an impartial hearing (Dist. Ex. 26). Respondents indicated in the Due Process Complaint Notice that they disagreed with their daughter's placement in the K-2 program at Rosendale and that it was in her best interest to be placed in a "fully included general education class room with supports and modifications at her home school" (Dist. Ex. 26 at p. 2 ). Respondents proposed the following as a solution: "a fully included general education classroom with a consultant teacher (direct and indirect) with supports and modifications and supplementary aids and services" (Dist. Ex. 26 at p. 3).
Respondents, thereafter, retained counsel, who subsequently amended the original request for an impartial hearing by letters dated September 12 and 13, 2005, and by email dated October 10, 2005 (Dist. Exs. 30, 33, 50). Relevant to the instant appeal, the October 10, 2005 email raised concerns regarding the composition of the K-2 special class, alleging that the class did "not comply with the regulatory requirements of Part 200.6 of the Regulations of the Commissioner of Education" (Dist. Ex. 50 at p. 1). In particular, respondents noted that the "students in the class are not of similar needs and abilities' and 'the students are not within a 36 month age range" (id. at p. 1). Respondents alleged that the regulatory violations constituted a denial of a free appropriate public education (FAPE) in the LRE (id. at p. 1). In addition, respondents indicated that they were not aware whether petitioner had applied for a variance (id. at p. 1).
On the first day of testimony, the record reveals that respondents had previously filed a compliant with the State Education Department, which contained respondents' allegations regarding the composition of petitioner's K-2 special class (see Tr. p. 76; IHO Decision, pp. 1-3). A witness for petitioner acknowledged that a variance application had been submitted to the State Education Department for permission to exceed the 36-month classroom age range subsequent to respondents' complaint but that the district had not yet received a response (Tr. p. 76).
During the impartial hearing, two class profiles were entered into evidence with respect to the K-2 special class (Dist. Ex. 54; Parent Ex. P-I). Petitioner's witness testified that Exhibit 54 represented a class profile developed by petitioner's exceptional needs specialist/ special education teacher regarding the K-2 special class and that Exhibit P-I represented the class profile that petitioner submitted to the State Education Department with its request for a variance for the K-2 special class (Tr. pp. 76-80). The witness clarified that both exhibits represented the same children within the K-2 special class during 2005-06, but he opined that Exhibit P-I was "more reliable" because it arose as a result of documentary information and interviews with teachers (Tr. pp. 81-82). The witness testified that he believed that Exhibit 54 arose from documentary information alone (see Tr. p. 82).
The witness testified that, at that time, the age range of the students in petitioner's K-2 special class was 49 months (Tr. p. 76). He admitted that the 49-month age range did not comply with the regulations established by the Commissioner of Education (id.). The witness further testified that the reading and math levels in the K-2 special class varied between the "preK level through first, maybe the very beginning first grade level" (Tr. p. 77). With respect to the cognitive levels of the children in the K-2 special class, the witness stated that it "ranges from moderately mentally retarded through-at the low end through the bottom of the slow learner range. So if we're talking standard scores or IQs, someplace between say 60 and 80" (id. at p. 77). He also admitted that they were not able to get a cognitive IQ score on one child in the class (Tr. pp. 77-78).
With respect to respondents' daughter, the witness testified that she fell within the "preprimer" level, which he described as either "very early first grade or kindergarten level" (Tr. pp. 82-83). The witness also testified regarding the reading and math levels of some of the other children in the K-2 special class as set forth on the class profiles admitted into evidence (Tr. pp. 77-88; Dist. Ex. 54; Parent Ex. P-I).
The exceptional needs specialist/special education teacher, who testified on behalf of petitioner, stated that the child currently attended the K-2 special class for her reading and math instruction (Tr. pp. 268, 301). The reading instruction was 35 to 40 minutes and the math instruction was 30 minutes (id.). The witness testified that the child had attended the K-2 special class for her reading and math instruction, for the same instructional periods, since the beginning of school in September (id.). She further testified that the child was grouped with one other child for her reading instruction and with two other children for her math instruction when she attended the K-2 special class (Tr. pp. 304-05). When the child attended the K-2 special class, there were only six children, total, within the classroom (id.).
After the conclusion of the impartial hearing, petitioner forwarded to the impartial hearing officer a copy of the response from the State Education Department on January 13, 2006 (IHO Ex. XXXIV). Petitioner requested that the impartial hearing officer include the response as evidence because it was not available at the time of the impartial hearings and based upon its relevance to the proceeding. Respondents objected to petitioner's request on several grounds, including the need for testimony related to the document (IHO Exs. XXXV at pp. 1-2; see XXXVI-XXXVIIII). The impartial hearing officer denied petitioner's request to admit the response into evidence by letter dated January 17, 2006 (IHO Ex. XL at p. 2).
In a decision dated January 31, 2006, the impartial hearing officer annulled the child's 2005-06 IEP based upon "the issues regarding class composition decided in favor of the Parents" and remanded the matter to petitioner's CSE for "further proceedings not inconsistent with this decision" (IHO Decision, p. 24). The impartial hearing officer opined that petitioner's K-2 special class did not group the child with students of similar needs and abilities, and further, that the K-2 special class age ranges of the children in that class exceeded the 36 months set forth in 8 NYCRR 200.6(g)(5) (IHO Decision, pp. 15-17). The impartial hearing officer annulled the child's 2005-06 IEP despite the fact that he found in favor of petitioner on most of the issues presented during the impartial hearing (IHO Decision, p. 24). The impartial hearing officer stated that respondents failed to meet their burden of persuasion that the child's program was not appropriate (IHO Decision, p. 16). He also agreed with the CSE's rationale to conduct the child's FBA in the fall, as opposed to when the child attended the more "leisurely" summer program, and concluded that respondents failed to meet their burden of persuasion as to this contention (IHO Decision, pp. 22-23). The impartial hearing officer also noted in his decision that petitioner's goals and objectives were meaningful and measurable, indicating that relative to oral motor development, the short-term objectives in the child's IEP, although difficult to measure, could be readily observed and reported through the criteria set forth in the IEP (IHO Decision, pp. 19-20).
As part of his decision, the impartial hearing officer noted the following: "[u]pon receipt of a complaint, the State Education Department is required to set aside any part of the complaint that is currently being addressed in an impartial hearing 8 NYCRR §200.5(1)(2)(vii)" (IHO Decision, p. 2). The impartial hearing officer concluded that it was "inappropriate to include the State Education Department's response to the complaint in the record without allowing for testimony on it" and declined to accept the additional evidence (IHO Decision, pp. 2-3). Petitioner requested that additional testimony be allowed, however, respondent's counsel objected to an extension of the impartial hearing to allow for testimony involving the document.
Petitioner appeals the impartial hearing officer's annulment of the child's 2005-06 IEP based upon the alleged regulatory violations, as well as the impartial hearing officer's decision to refuse to accept the additional documentary evidence prior to the record close date. Petitioner asserts that the impartial hearing officer erred in refusing to accept the additional evidence. Alternatively, petitioner contends that even if the impartial hearing officer properly excluded the additional evidence, the impartial hearing officer erred in annulling the child's 2005-06 IEP based upon procedural violations because these violations did not affect the child's right to a FAPE. Petitioner alleges that the impartial hearing officer did not find that respondents were denied a right to participate in the decision-making process, nor did the impartial hearing officer find that the child's education had been impeded as a result of the regulatory violations. Petitioner seeks to annul the impartial hearing officer's annulment of the child's 2005-06 IEP.
Respondents cross appeal and allege that the impartial hearing officer erred when he found that petitioner offered an appropriate program and placement to the child for 2005-06 in light of his determination regarding the regulatory violations, that petitioner's progress reports were adequate under state and federal law, that petitioner did not need to conduct an FBA of the child prior to offering a placement in 2005-06, and that petitioner's goals and objectives/ benchmarks set forth in the 2005-06 IEP were meaningful and measurable.
A purpose 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 (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 ). 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; see Grim 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]).
Based upon a review of the record, I find petitioner's arguments on appeal persuasive and hold that the impartial hearing officer erred when he annulled the child's 2005-06 IEP based upon his determination that the child was not suitably grouped in her class and that the class exceeded chronological age range requirements. As noted above, the impartial hearing officer concluded that the child's offered program was appropriate and consistent with the LRE requirement (IHO Decision, pp. 15, 16). 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. 05-102; 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 with 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). State regulations also require that 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]).
Based upon the foregoing, and without making a determination as to whether petitioner's K-2 special class was in compliance with the two state regulations above, I find that respondents offered no persuasive evidence that the recommended program and placement were not reasonably calculated to enable the child to receive meaningful educational benefit. Nor have they offered persuasive evidence that the alleged non-compliance with state regulations impeded the child's right to a FAPE, significantly impeded the parent's opportunity to participate in the decision making process, or caused a deprivation of educational benefits.3
With respect to respondents' cross-appeal, "[t]he administrative appeal process is available only to a party which is 'aggrieved' by an IHO's determination" (Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 385 [N.D.N.Y. 2001]). A party aggrieved by an impartial hearing officer's decision may appeal to a State Review Officer (see 34 C.F.R. § 300.510[b]; see 8 NYCRR 200.5[j]; Mackey v. Bd. of Educ., 386 F. 3d 158, 160 [2d Cir. 2004]; Application of a Child Suspected of Having a Disability, Appeal No. 05-047; Application of the Bd. of Educ., Appeal No. 04-016; Application of a Child with a Disability, Appeal No. 02-007; Application of a Child with a Disability, Appeal No. 99-029). (05-047) "Generally, the party who has successfully obtained a judgment or order in his favor is not aggrieved by it, and, consequently, has no need and, in fact, no right to appeal" (Parochial Bus Sys., Inc. v. Bd. of Educ., 60 N.Y.2d 539, 544 ).
In the instant case, because the impartial hearing officer's decision ultimately annulled the child's IEP for the 2005-06 school year, which provided respondents with complete relief, they are not aggrieved by the decision (see Parochial Bus Sys., Inc. at p. 544-45; Application of a Child Suspected of Having a Disability, Appeal No. 05-047; Application of the Bd. of Educ., Appeal No. 05-023; Application of the Bd. of Educ., Appeal No. 04-016). With that said, I have reviewed respondent's arguments and find them not persuasive. I concur with the impartial hearing officer that the program offered was reasonably calculated to afford educational benefit in the LRE, that the goals and objectives were sufficiently adequate, and that an FBA was not required prior to the formulation of the IEP.
According to the class profiles, 11 of the 12 children placed in the K-2 special class were born between August 1998 and September 2000 (a 25-month period). Only one child's date of birth, in 1996, exceeded the chronological age range requirements outlined in the regulations (Dist. Ex. 54; Parent Ex. P-I). Based on the circumstances presented here, I do not find this variance to rise to the level of a denial of FAPE. As to grouping based on similarity of needs and abilities, respondents rely heavily on differences in standardized test scores and disability classifications. However, the record demonstrates that the children in the 12:1+1 class had similar academic needs; specifically, in reading and math the students' skills ranged from the pre-K to beginning first grade level (Tr. p. 77; Parent Ex. P-I). The special education teacher testified convincingly that despite differences in disability classifications, the child had academic, language, and social needs that overlapped those of other students in the class (Tr. pp. 250-54). She described how the child's needs were addressed through the use of flexible grouping and the individualization of instruction within the class (Tr. pp. 250-54, 246-47, 304-05). As to concerns regarding goals and objectives, respondents contend that writing (OT) objectives in the child's IEP do not contain timeframes "making it impossible for the parents to determine whether or not the progress the child is making is on schedule or not" (Respondent's Memorandum of Law p. 16). The regulations in effect at the time the IEP was developed, allow for the use of both short-term objectives and benchmarks (8 NYCRR 200.4[d][iii]), a difference being that benchmarks "usually designate a target time period for a behavior to occur" while short term objectives "break down the skills or steps necessary to accomplish a goal into discrete components" (see Office of Vocational and Educational Services for Individuals with Disabilities (VESID), "Sample Individualized Education Program and Guidance Document," pp. 56-57[December 2002]). The regulations do not require that the objectives include timelines for mastery; rather, they require that the objectives include evaluative criteria and evaluation procedures and schedules (8 NYCRR 200.4[d][iii]). The writing (OT) goals contain the required evaluation schedules (monthly) (Dist. Ex. 20 at pp. 8, 9), and in addition, the IEP indicates that respondents will be informed of their child's progress three times during the school year via written reports (Dist. Ex. 20 at p. 5). While I agree with respondents that the oral motor goal contained in the child IEP is not measurable, I find the lack of measurability does not rise to the level of denying the child a FAPE.
Finally, petitioner attached Exhibit "1" to its petition, which is the correspondence containing a determination by the State Education Department's VESID Office. Petitioner requests that Exhibit "1" be considered on appeal and as noted above, appeals the impartial hearing officer's decision to refuse to accept Exhibit "1" into evidence. Respondents oppose consideration.
Generally, documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary in order to render a decision (Application of a Child with a Disability, Appeal No. 05-001; Application of the Bd. of Educ., Appeal No. 04-068; see generally Application of a Child with a Disability, Appeal No. 04-030; Application of a Child with a Disability, Appeal No. 04-020). Although the documents offered on appeal were made available to the impartial hearing officer prior to his decision, he determined that it was not appropriate to accept the documents into evidence (IHO Decision, pp. 2-3; IHO Ex. XL at p. 2). I find no need to disturb the impartial hearing officer's determination to not accept the documents. The documents are not necessary for my review; therefore, I will not accept them (Application of a Child with a Disability, Appeal No. 05-001; Application of the Bd. of Educ., Appeal No. 04-068; Application of a Child with a Disability, Appeal No. 04-031). Moreover, State regulations 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]; see Application of a Child with a Disability, Appeal No. 99-10).
I have considered the parties remaining contentions and I find them to be without merit.
THE APPEAL IS SUSTAINED.
THE CROSS-APPEAL IS DISMISSED.
1 On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEA 2004], Pub. L. No. 108-446, 118 Stat. 2647). The relevant events in the instant appeal relating to the development and substance of the June 200, 2005 IEP took place prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEA 2004 do not apply to the development or substance of the IEP.
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; see also 34 C.F.R. § 300.13; 20 U.S.C. 1414[d].
3 As the Supreme Court recently established in Schaffer v. Weast, 126 S.Ct. 528, 537 (2005), the burden of persuasion rests on the party challenging the IEP. The burden of persuasion is not dispositive in the instant case because the evidence amply demonstrates that the child was offered a FAPE.