06-052

         Petitioner, the Board of Education of the Niskayuna Central School District, appeals from the decision of an impartial hearing officer which found that it failed to offer an appropriate educational program to respondent's son and ordered it to reimburse respondent for her son's out-of-state private residential tuition costs at the Hampshire Country School (HCS) for a portion of the 2004-05 school year and the entirety of the 2005-06 school year, as well as for transportation expenses for the student.  The appeal must be sustained.

            At the time of the impartial hearing, respondent's son was 12 years old and was attending HCS, a private residential school in Rindge, New Hampshire, where he had been unilaterally placed by respondent on January 9, 2005 (Parent Exs. 51, 77).  He attended HCS for the remainder of the 2004-05 school year and was again unilaterally enrolled by respondent and attended HCS for the 2005-06 school year.  The Commissioner of Education has not approved HCS as a school with which school districts may contract to instruct students with disabilities (see Tr. p. 693; see 8 NYCRR 200.7, 200.1[d]).  HCS does not consider itself a special education school, and is described in the record as a small boarding school for high ability students who may be "socially unskilled" and who need support, structure and stability (Tr. pp. 694-96).

            Petitioner's staff describes the student as a friendly, bright child whose success in school is compromised by his distractibility and hypervigilance (Dist. Ex. 53 at p. 2, 58 at p. 2). Standardized test results indicate the student's cognitive functioning and academic achievement skills are in the average range, although he exhibits difficulty with written language and handwriting (Dist. Exs. 22 at pp. 7, 8; 62 at p. 6).  During the years in question in this appeal, the student received in-school and private counseling to address social skills needs (Tr. pp. 832, 834-35; Dist. Exs. 53, 62).  His many diagnoses include an attention deficit hyperactivity disorder (ADHD)-combined type, Post Traumatic Stress Disorder (PTSD), and Reactive Attachment Disorder (RAD) (Tr. p. 902; Dist. Exs. 19, 20), for which various medications have been prescribed (Parent Ex. 25).  Respondent describes her son as emotionally immature and impulsive, with underlying anger and distrust.  She reported episodes of the student stealing, hoarding food and threatening physical harm to her when he was at home (Dist. Exs. 22 at p. 2; 48 at p. 1).

          The record reflects that the student had a difficult early childhood history (Tr. p. 596; Dist. Exs. 18, 20).  The student received special education services as a young child and during kindergarten (Tr. pp. 602-03; Dist. Ex. 48 at p. 1).  In March 2000, respondent obtained individual and family counseling services for the student from a private psychologist (Tr. pp. 834, 837).  During the 1999-2000 school year (first grade), he was classified as a student with an other health impairment (OHI) and through third grade received special education services while he attended mainstream classes at petitioner's Rosendale elementary school (Tr. p. 605; Dist. Exs. 1, 3, 5).

           The student began the 2002-03 school year in fourth grade at Rosendale classified as a student with an OHI.  His program consisted of resource room services, counseling, occupational therapy (OT) consultation services and a shared instructional assistant (Dist. Ex. 9).  In November 2002, the student was reportedly traumatized due to a health-related incident at the school, and in December 2002, at respondent's request, the student was moved to petitioner's Birchwood elementary school (Parent Ex. 6; Dist. Ex 16 at pp. 2-4).

            In March 2003 the student underwent a triennial evaluation (Dist. Ex. 13).  Administration of the Woodcock-Johnson III Tests of Cognitive Abilities (WJ-III COG) yielded scores in the average range of general intellectual ability (GIA) (Dist. Ex. 13 at pp. 1, 5).  The student's performance on academic achievement tests also resulted in scores which fell in the average range for writing, spelling, math, reading and oral language (Dist. Ex. 13 at pp. 2, 5).  There were no discrepancies identified between the student's cognitive and achievement abilities (Dist. Ex. 13 at pp. 6, 7).  The student's self rating on the Behavior Assessment for Children (BASC) yielded scores within the normal range of functioning as did his teacher's ratings on the BASC, with the exception of the adaptive skills and attention domains, which were rated by his teachers in the at-risk range (Dist. Ex. 13 at p. 3).  The evaluation report stated that the student was friendly, generally cooperative in school and appeared motivated to succeed (Dist. Ex. 13 at pp. 3-4).  His difficulty focusing on tasks and organizing his thoughts was noted.  The school psychologist stated the student needed a structured and supportive setting with established and followed routines, outlined expectations and enforced limits (Dist. Ex. 13 at p. 4).  Program modifications including preferential seating, dictation to an instructional assistant and use of an AlphaSmart were also recommended (id.).

           On March 18, 2003 the Committee on Special Education (CSE) met and developed the student's fifth grade individualized education program (IEP) for the 2003-04 school year (Dist. Ex. 15).  The resultant IEP continued the student's classification as OHI and recommended a consultant teacher program with access to an instructional assistant and the related services of counseling and OT consultation (Dist. Ex. 15 at p. 1).  The IEP stated that the student had made progress within his educational program and that a resource room program was considered too restrictive for him (Dist. Ex. 15 at p. 4).  A variety of program modifications and testing accommodations were also recommended (Dist. Ex. 15 at pp. 3, 4).

          A May 2003 report from the student's private psychologist stated she was increasingly concerned that the student showed signs of an attachment disorder (Dist. Ex. 18).  The private psychologist reported that the student was competitive, aggressive, and at times violent at home. She also reported the student exhibited a sleep disorder.  In June 2003, respondent obtained the services of the Attachment Institute of New England for the student (Parent Ex. 17; Dist. Exs. 20, 21 at p. 2).

          In September 2003 the student was admitted for two weeks to Four Winds, a private psychiatric hospital, due to dangerous behaviors exhibited primarily in the home environment (Tr. p. 899; Dist. Ex. 19).  Following his hospitalization, the student returned to Birchwood for his fifth grade year (Dist. Ex. 21 at p. 1).

          In November 2003 respondent requested a neuropsychological psychoeducational evaluation of the student and a CSE meeting to review the student's program (Dist. Ex. 21 at p. 1; Parent Ex. 9).  She informed the staff at Birchwood she did not believe the student's program met his needs and stated that he needed a smaller academic setting (Parent Ex. 10 at p. 3).  The meeting was deferred because the parties agreed to wait until an independent psychoeducational evaluation of the student was conducted (Parent Ex. 16).

          During spring 2004 a child and adolescent psychologist conducted an independent psychological evaluation of the student (Parent Ex. 11; Dist. Ex. 22).  The student's overall cognitive functioning as measured by his performance on the Wechsler Intelligence Scale for Children-Third Edition (WISC-III) was yielded a full scale IQ score of 97 (average range of cognitive ability), a verbal IQ score of 105 and a performance IQ score of 89 (Dist. Ex. 22 at p. 6).  Administration of the Wechsler Individual Achievement Test-Second Edition (WIAT-II) yielded an average total composite standard score and average subtest standard scores in reading, math, and written expression (Dist. Ex. 22 at p. 8).  The student achieved a standard score of 86 on the WIAT-II spelling subtest and his standard score of 69 on the oral expression subtest was considered by the evaluator to be an underestimate of the student's abilities (id.).  The student achieved a standard score of 114 on the listening comprehension subtest of the WIAT-II (id.).

         Analysis of the Achenbach Child Behavior Checklist (CBCL), completed by respondent, revealed clinically significant or borderline significant scores for all behavioral categories assessed (Dist. Ex. 22 at p. 4).  Results of the CBCL teacher report revealed a clinically significant score in the area of thought problems and borderline significant scores in the areas of attention problems and aggressive behavior (Dist. Ex. 22 at p. 5).  The CBCL teacher report did not reveal significant scores in the remaining behavioral categories assessed (Dist. Ex. 22 at pp. 4-5).  Completion of the ADHD Rating Scale (Family and School) yielded significant scores in the areas of inattentive-hyperactivity and impulsivity-hyperactivity (Dist. Ex. 22 at p. 5).  The examiner concluded that the student "certainly fits" psychiatric diagnostic classifications including PTSD, RAD and ADHD-combined type (Dist. Ex. 22 at p. 10).  He opined that the student's needs would best be addressed if he were reclassified as emotionally disturbed, and recommended that the student be placed in a smaller, more self-contained classroom or day treatment program "where he could receive the level of psychotherapeutic services he needs in an integrated manner" (id.).  In April 2004 respondent, the student's private psychologist and petitioner's school psychologist met with the child and adolescent psychologist to review the results of the independent psychological evaluation (Tr. pp. 842-43).

          In April 2004 after review of the student's independent psychological evaluation report, a psychologist from the Attachment Institute of New England recommended that the student be placed in a small group setting with staff trained in addressing mental heath problems and trained teachers (Parent Ex. 17).  She opined that a regular public school environment with supports could not meet his needs at that time, and recommended that the student be placed in a day treatment setting.  In May 2004 the student's private psychiatrist stated that, because of the complexity of his psychiatric condition and multiple changes in his medication, the student would benefit from a program with a psychoeducational focus and with therapeutic interventions, (Parent Ex. 19). 

          Petitioner's school psychologist conducted a functional behavioral assessment (FBA) of the student on May 14, 2004 (Tr. p. 843; Parent Ex. 72). The FBA report noted that the instructional assistant portion of the student's fifth grade program was changed during the year from shared to 1:1 as a result of his difficulty completing work within the classroom.  Student behaviors such as negative peer interactions, verbal outbursts, noncompliance with teacher request and rule violations were documented.  The classroom teacher stated her key concerns regarding the student's functioning in her classroom were his peer relationships and work production, with sporadic concerns of classroom compliance. In her report the school psychologist provided intervention and counseling recommendations for the upcoming school year, including checklists to track his behavior on a daily basis and staff conferences.  Also in spring 2004 further assessment of the student's sleep disorder revealed a diagnosis of Mild Sleep Disordered Breathing (Dist. Ex. 24).

          The CSE met in May 2004 for an annual review (Dist. Ex. 26).  The draft IEP developed as a result of that meeting indicated that the CSE changed the student's classification from OHI to emotionally disturbed and, for the upcoming 2004-05 sixth grade school year, recommended a daily 45 minute special class program with a teaching assistant (TA), individual and group counseling, OT consultation services and monthly team meeting with parent at petitioner's Iroquois Middle School (Iroquois) (Dist. Exs. 26, 27 at p. 2; Parent Ex. 61).¹  The special class was described as appropriate for students who are capable academically, but require a highly structured environment due to social-emotional needs and for those students whose management needs warrant a carefully constructed behavior management system (Dist. Ex. 28).  The special class program included mainstreaming opportunities with support in the resource room and/or skills classes as well as close adult supervision in all classes (id.).  Minutes from the CSE meeting indicate that respondent was not in favor of the CSE's recommended IEP and "would like something more therapeutic" (Dist. Ex. 27 at p. 2).  

          The student attended a local day camp during summer 2004 (Parent Ex. 24).  The special education consultant employed by the camp reported most of her days were spent working 1:1 with the student to help him participate in all activities, remain behaviorally appropriate and control his impulsiveness (id.).  Administration of the Vineland Adaptive Behavior Scales to the student in July 2004 while at summer camp yielded scores at the low adaptive level in all areas with the exception of the written and community subdomains, which placed the student in the moderately low adaptive level (Dist. Ex. 75 at p. 3).

          The CSE reconvened on August 3, 2004 to finalize the student's IEP for the upcoming 2004-05 school year (Dist. Exs. 30, 31).  The minutes of the meeting describe the student as academically capable, with weaknesses in writing, spelling, attention and social skills (Dist. Ex. 31).  Respondent requested that her son be placed in a therapeutic day program (id.).  The CSE recommended the program outlined in the May 2004 IEP (id.). According to the meeting minutes, the proposed program was accepted under a variety of conditions, including the addition of counseling goals to the student's IEP, the development of a behavior intervention plan for the student and preparation of a packet of information about the student to be sent to a day treatment program for review (Dist. Exs. 31 at pp. 2-3; 32).  The CSE agreed to meet in October 2004 to review the student's progress (Dist. Ex. 31 at p. 3).  By letter dated August 10, 2004, respondent notified petitioner's administrator of student support services (administrator) that the proposed program was neither a small self-contained nor a day treatment program as recommended by the independent child and adolescent psychologist and the student's psychiatrist and was not appropriate to meet the student's needs (Dist. Ex. 33).  Also in August 2004 respondent was notified the student was eligible for academic intervention services (AIS) in reading and math (Parent Exs. 22, 23).

          In early September 2004 a private psychiatric evaluation of the student was conducted (Parent Ex. 25).  Following a record review, an interview with respondent and a brief interview with the student, the psychiatrist stated the student needed a small, full-time self-contained classroom with a high teacher to student ratio or a day treatment program as recommended by the independent psychological evaluation report. 

          The student began the 2004-05 school year in the program and placement recommended by the August 2004 IEP and was enrolled in regular education classes for Social Studies, Science, English, Math, Spanish, Art and Physical Education (Dist. Ex. 35).  A special education teacher or TA accompanied the student to all classes and to lunch (id.).  In September 2004, a behavior intervention plan was developed to address the student's difficulties with focusing and impulsivity (id.).  During fall 2004 respondent notified petitioner's staff she did not believe the student's program was appropriate to meet his needs (Dist. Exs. 36, 37, 48). 

           In October 2004, the student was not accepted for admission to the day treatment program that petitioner contacted after the August 2004 CSE meeting because the admissions coordinator of the program determined it was "too restrictive" for the student (Dist. Exs. 32, 39).  After reviewing the information about the student sent by petitioner, the admissions coordinator opined that the student's needs would best be met in an environment such as a small self-contained classroom with a social emotional focus (Dist. Ex. 39).

         The student's November 2004 report card revealed he earned grades in the B to C- range for all classes that reported a grade (Dist. Ex. 68).  By letter dated November 26, 2004 respondent requested an impartial hearing, stating that she disagreed with the student's current educational placement (Dist. Ex. 48 at p. 1).

         The CSE convened to review the student's program on December 16, 2004 with 17 attendees, including respondent, counsel for the family, and an additional parent member (Dist. Ex. 53). The resultant IEP, which is the first IEP in dispute herein, continued the student's August 2004 special class program with a TA, group and individual counseling, OT consultation and a monthly team meeting with his parent (Dist. Exs. 53 at p. 1; 54 at p. 3).  The IEP contained annual goals and short-term objectives in the areas of English/Language Arts, study skills, work behaviors/confidence skills, social-emotional skills, homework/classroom skills and OT (Dist. Ex. 53 at pp. 8-14).  The CSE recommended that the student participate in a regular sixth grade curriculum and receive various testing accommodations, including extended time, location with minimal distractions, answers dictated and access to an AlphaSmart (Dist. Ex. 53 at p. 4).  Minutes from the meeting stated the CSE would make revisions/additions to some of the student's IEP goals and an FBA of the student would be conducted by Wildwood Programs (Wildwood),² at respondent's request, and reviewed at a CSE meeting in February 2005 (Dist. Ex. 54 at pp. 2-3). 

         By letters dated December 23, 2004, respondent withdrew her request for an impartial hearing and notified petitioner of her intent to enroll the student at a private school at public expense (Dist Exs. 55, 56).

        In January 2005, Wildwood conducted the student's FBA and developed a behavioral support plan (Dist. Ex. 58).  Following observations of the student at Iroquois, the educational consultant selected the student's excessive motor activity and non-compliance behaviors for analysis (Dist. Ex. 58 at pp. 2-3).  The resultant behavioral support plan recommended preventative strategies, suggestions for teaching new behaviors, reinforcement strategies and levels of environmental support (Dist. Ex. 58 at pp. 7-10).  The behavioral support plan stated staff would continue to document the frequency and duration of target behaviors and the plan would be reviewed at least once per month (Dist. Ex. 58 at p. 11).

         On January 9, 2005, the student was removed from petitioner's school by respondent and he began attending HCS (Parent Ex. 77 at p. 3).

         A CSE meeting was held on February 18, 2005 in order to review the Wildwood FBA (Dist. Exs. 59, 60).  The CSE recommended continuation in a regular education sixth grade curriculum and participation in a skills English class in a special class setting that used the regular education sixth grade curriculum for reading and modifications of the sixth grade curriculum for writing (Dist. Ex. 59 at p. 5).  Other additions to the February 2005 IEP program included consultant teacher services for Science and daily resource room services (Dist. Ex. 59 at p. 2).  New annual goals and short-term objectives were also added (Dist. Exs. 59 at pp. 30-38, 60 at p. 2).

        The CSE convened on June 22, 2005 for the student's annual review.  Participants included respondent, an additional parent member and a representative from respondent's unilateral placement  (Dist. Ex. 62).  For the upcoming 2005-06 school year the CSE recommended that for seventh grade the student participate in special class English and receive consultant teacher services for Science, resource room services, and a full time 1:1 TA.  Related services of twice weekly group counseling services and one time per month OT consultation services were also recommended.  The CSE further recommended quarterly team meetings with respondent.  The extensive resultant IEP, the second IEP in dispute herein, provided the student with annual goals and objectives to improve the student's performance in the areas of study skills, personal independence, critical thinking, homework/classwork completion, on-task behavior, conflict resolution, communication, and self-monitoring of his behavior in the classroom (Dist. Ex. 62 at pp. 31-43).  The IEP included the student's Wildwood FBA and behavioral support plan (Dist. Ex. 62 at pp. 17-23, 26-30).  Minutes from the CSE meeting characterize the CSE's recommendations as a special class program (Dist. Ex. 63 at p. 1). 

          By letter dated June 28, 2005, respondent requested an impartial hearing, stating she objected to the program and services recommended for her son for the 2004-05 school year, and requesting reimbursement for the student's tuition and transportation costs at HCS (Dist. Ex. 69).  By letter dated August 25, 2005, respondent notified petitioner she intended to enroll her son at HCS for the 2005-06 school year at public expense because she disagreed with the proposed placement (Parent Ex. 70). The hearing request was amended by letter dated August 31, 2005, which included a request for HCS tuition and transportation reimbursement for the 2005-06 school year (Dist. Ex. 70).

            The impartial hearing commenced on September 14, 2005 and concluded on December 21, 2005, after six days of testimony.  At the hearing, respondent asserted that her son had been denied a free appropriate public education (FAPE) by respondent for the 2004-05 and 2005-06 school years and that she should be reimbursed for her tuition payments for her unilateral placement of the student at HCS from January 2005 through the end of the 2005-06 school year.  Specifically, respondent asserted that the CSE failed to consider relevant evaluative information, that the IEPs failed to adequately detail the student's present levels of performance, that alternatives to the CSE's recommended placement were not considered, that goals and objectives were not discussed and were not appropriate to meet the student's needs, that a behavioral intervention plan was not included or incorporated into the 2004-05 IEP, and that the recommended placement was inappropriate to meet the student's needs.  Respondent also asserted that HCS was appropriate to meet the student's special education needs and that she should therefore be reimbursed for the tuition payments she made for a portion of the 2004-05 school year and the entirety of the 2005-06 school year.

             Petitioner asserted at the impartial hearing that it had offered the student a FAPE in the least restrictive environment (LRE) for both school years in question, that HCS was an inappropriate placement, and that the equities did not favor respondent.  Specifically, petitioner asserted that the recommended placement in both the 2004-05 and 2005-06 IEPs for the student offered the student a FAPE in the LRE, and were premised upon the student's past success in a regular education setting, including his progress in the fall of 2004.  Petitioner asserted that respondent fully participated in the CSE meetings and that petitioner responded and complied with respondent's requests, including that a day treatment center be investigated and that Wildwood Institute be retained to conduct an FBA.  Petitioner further argued that appropriate evaluative data had been considered, that the IEPs appropriately reflected the student's present levels of performance, that a behavioral intervention plan was in place, and that the IEPs in question were reasonably designed to enable the student to make meaningful educational progress, which it argued he did demonstrate in the fall of 2004, prior to respondent's unilateral placement of the student in January 2005. 

            In a decision dated April 17, 2006, the impartial hearing officer determined that that petitioner failed to recommend an appropriate placement for the student for the 2004-05 and 2005-06 school years, that HCS was an appropriate placement, and that equitable considerations supported an award of tuition reimbursement.  Specifically, the impartial hearing officer found that the IEPs for the 2004-05 and 2005-06 school years failed to include testing results, failed to identify the student's needs and how to address them, and failed to include an adequate behavioral intervention plan or sufficient goals.  He further held that petitioner's recommendation was predetermined prior to a May 2004 CSE meeting.  He concluded that petitioner's recommendation was not appropriate because it was not a small, self-contained structured environment.  The impartial hearing officer awarded tuition reimbursement at HCS for the portion of the 2004-05 school year in which the student attended HCS, as well as for the 2005-06 school year, and also awarded the expenses of sending the student to HCS.

            Petitioner appeals, asserting that the impartial hearing officer erred in finding that petitioner failed to offer the student a FAPE for the 2004-05 and 2005-06 school years, in finding HCS appropriate, and in concluding that the equities favored tuition reimbursement.  Petitioner asserts that the impartial hearing officer erred in many of his findings, including his finding the 2004-05 and 2005-06 IEPs inappropriate, erred in placing the burden of proof on petitioner, erred in finding that respondent was denied meaningful participation in the IEP development, and erred in finding that the IEPs failed to accurately describe the student's present levels of performance.  Petitioner seeks annulment of the impartial hearing officer's decision.  Respondent requests that the impartial hearing officer's decision be upheld in its entirety.

            One of the main purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487)³ 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, 531 [2005]).  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[8]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).⁴

            A FAPE is offered to a student when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07).  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]).  The Second Circuit has determined that "a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression' and if the IEP affords the student with an opportunity greater than mere "trivial advancement" (Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 [2d Cir. 2005], quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]), in other words, likely to provide some "meaningful" benefit (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see also Viola v. Arlington Cent. Sch. Dist., 414 F. Supp. 2d 366, 381-82 [S.D.N.Y. 2006]).  In determining whether a regular education class is appropriate, objective factors such as the attainment of passing grades and regular advancement from grade to grade are generally accepted indicators of satisfactory progress and one important factor in determining educational benefit (Rowley, 458 U.S. at 207, n.28, 203-04; Walczak, 142 F.3d at 130; Viola, 414 F. Supp. 2d at 382).  This is true even when the student has been educated in special education classes (Walczak,142 F.3d at 130).  The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

           In determining an appropriate placement in the LRE, the IDEA requires that children with disabilities be educated to the maximum extent appropriate with children who are not disabled and that special classes, separate schooling or other removal of children with disabilities from the regular educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. § 1412[a][5][A]; see 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]; see also Bay Shore Union Free Sch. Dist. v. T., 405 F. Supp. 2d 230, 239-40 [E.D.N.Y. 2005]; Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 144 [N.D.N.Y. 2004]). In determining whether a student can be educated in regular classes, it is not necessary to establish that the student will learn at the same rate, or master as much of the regular education curriculum as his or her disabled peers (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 [5th Cir. 1989]). The relevant question is whether a student can achieve the goals of his or her IEP within a regular education program, with the assistance of supplementary aids or services (Mavis v. Sobol, 839 F. Supp.  968, 982 n.25 [N.D.N.Y. 1993]; see Application of a Child with a Disability, Appeal No. 05-010; Application of a Child with a Disability, Appeal No. 03-027: Application of a Child with a Disability, Appeal No. 03-009; Application of the Bd. of Educ., Appeal No. 02-081; Application of a Child with a Disability, Appeal No. 93-4).  The fact that a student with a disability might make greater academic progress in a special education class may not warrant excluding the student from a regular education program (Oberti v. Bd. of Educ., 995 F.2d 1204, 1213 [3d Cir. 1993]).

          The Daniel R.R./Oberti 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 v. New Fairfield Bd. of Educ., 217 F. Supp. 2d 261, 274 [D.Conn. 2002]; A.S. v. Norwalk, 183 F. Supp. 2d 534, 542 n.8 [D.Conn. 2002]; Mavis, 839 F. Supp. at 985).  When determining whether a student with a disability can be educated satisfactorily in a regular class with supplemental aids and services, the factors to be considered 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).  Where a child is so disruptive in a regular education classroom that he significantly impairs the education of other children, then the regular education placement is not appropriate (see Oberti, 995 F.2d at 1217-18).  The CSE must also consider the unique benefits, academic and otherwise, which a student may receive by remaining in regular classes, e.g., language and role modeling with no disabled peers (Greer v. Rome City Sch. Dist., 950 F.2d 688 [11th Cir. 1991]).

          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).  An IEP must 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, Section 1, Question 1).

              An IEP must also include a statement of the special education and related services and supplementary aids and services to be provided to or on behalf of the student, as well as a statement of the program modifications or supports for school personnel that will be provided to the student (34 C.F.R. § 300.347[a][3]; see 8 NYCRR 200.4[d][2][iv]).  Such education, services and aids must be sufficient to allow the student to advance appropriately toward attaining his or her annual goals (34 C.F.R. § 300.347[a][3][i]; see 8 NYCRR 200.4[d][2][iv][a]).

            As a preliminary matter, I note that the impartial hearing officer was somewhat unclear as to which party was assigned the burden of proof on prong one of the Burlington/Carter analysis:  the decision initially references that respondent "met her burden" and then later references prior case law that assigned the district with the burden (IHO Decision, pp. 43-45).  The impartial hearing commenced before and concluded after the Schaffer v. Weast decision, which was issued on November 14, 2005 (126 S.Ct. 528 [2005]).  In Schaffer, the United States Supreme Court held that the "[t]he burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief." (Schaffer, 126 S.Ct. 528, 537 [2005]).  Accordingly, respondent, as the party seeking relief, has the burden of persuasion to demonstrate that petitioner failed to offer the student a FAPE.  Further, regardless of where the burden of persuasion falls, I find that the evidence in the record in the present case establishes that petitioner offered a FAPE to the student for the 2004-05 and 2005-06 school years.

            First, as the impartial hearing officer correctly determined, the December 2004 IEP is the relevant IEP to consider for the student's 2004-05 school year because it was in place at the time of respondent's unilateral placement of the student (Dist. Ex. 53).  The relevant IEP for purposes of an award of tuition reimbursement is the IEP which the parents had at the time when they enrolled their child in the private school (Application of the Bd. of Educ., Appeal No. 05-105; Application of a Child with a Disability, Appeal No. 04-046).  This issue is not in dispute by the parties in this appeal.

             Second, the December 2004 IEP's recommendations were based upon the student's progress in petitioner's special class program throughout the fall of 2004, as detailed below.  In addition to the information contained in the August 2004 IEP, which the December IEP was based upon and which contains the same program recommendation, the December IEP recommends that the student undergo an FBA by Wildwood, pursuant to the request of respondent, and includes OT goals for sensory modulation and homework/classroom goals (Dist. Exs. 30, 53 at pp. 4, 12-14).  At the CSE meeting in December 2004, the student's teachers reported the progress he made in the program in fall 2004 and the administrator testified he felt strongly the placement was a "correct" one (Tr. pp. 56-58, 61-62).  The IEP reflects that the student was considered for a full-time special class program but that program was considered too restrictive (Dist. Ex. 53 at p. 5).

              Respondent testified that the December 2004 CSE did not consider her concerns regarding the student's program (Tr. pp. 784-85).  It is undisputed that the CSE did not agree with respondent's proposal of either a day treatment center or a self-contained classroom.  The record reflects that petitioner was aware of its legal obligation to provide the student with a FAPE in the LRE, and appropriately declined to deviate from that mandate, despite respondent's insistence on more restrictive settings for her son (Tr. pp. 61-62).  Minutes of the December 2004 CSE meeting reflect that the student's program was designed to use flexible responses to his behaviors while in the mainstream classes and that he had made "tremendous" progress since the beginning of the year (Dist. Exs. 41, 54).  The CSE minutes state that the student had made social and behavioral improvements, was able to be in the mainstream, and completed at or above grade level work on his assignments, which were not modified from the general education curriculum (Dist. Ex. 54).  Comments also include "Overall, [the student's] behavior and grades have improved as he is adjusting to his new school. [The student's] teachers are pleased with his work and social growth" (Dist. Ex. 54 at p. 3).

              The August 2004 IEP, which placed the student in petitioner's special class program, was undisputedly the operative IEP when the student began the 2004-05 school year (Tr. pp. 355-56).  In August 2004 the CSE reviewed the independent psychological evaluation and discussed the student's proposed program (Tr. pp. 37, 336-37; see Dist. Ex. 28).  The program was explained at the CSE meeting and the parent met separately with the special education teacher (Tr. p. 39).  The program was described as a small class for up to six middle school age students with social, emotional and or behavioral difficulties.  Daily 45–minute meetings provided counseling and emotional support to assist the students with academics and to help keep them organized and focused (Tr. pp. 37-38).  The age range of the students was from 12 to 14 years old and all students in the special class exhibited difficulty with peers, adult staff or both (Tr. p. 40).  Students in this class may need more adult supervision due to their behaviors on a given day (Tr. pp. 40-41).  If required by a student on a particular day, the special education teacher provided more support by pushing into the student's class or pulling a student out of class and providing instruction in her classroom or in a different room (Tr. pp. 37-38).  If a student did not complete work or did not cooperate with the teacher, the student was removed from class to complete the work in a separate location (Tr. pp. 40-41).  When a student demonstrated the ability to act appropriately, he or she was returned to the regular education class (Tr. p. 41).  When students were not with the special education teacher they were with a shared or 1:1 TA (Tr. pp. 38-39). The program differed from a regular education program with an aide because of the special education teacher's involvement in all aspects of the student's program, the amount of interaction with the TAs, her time spent pushing into the students' classes and the availability of flexible self-contained classroom time (Tr. pp. 41, 319-23).  The special education teacher described the program as highly structured in the sense that students were made aware of boundaries and provided with clear expectations for their behavior and work completion (Tr. pp. 439-40).

               The special education teacher of the student's program had taught the class since its inception in January 2002 and had been a special education teacher for 30 years (Tr. pp. 312, 365).  Her role was to oversee the students' programs, develop behavior plans with school psychologists and work closely with the TAs (Tr. pp. 319-20).  During the 2004-05 school year the program was composed of four students, the special education teacher and three full-time TAs (Tr. pp. 319-20).  The special education teacher testified that, during that school year, three of the four students in the program were considered to be in the average range of cognitive functioning, and one student's cognitive functioning was reported to be "slightly" below average (Tr. p. 320).  From September 2004 until his removal from the program in January 2005, the student attended regular education classes with either the special education teacher or with one of two TAs for all subjects including Science, Social Studies, English, Math and Spanish (Tr. pp. 322-23, 444).  He also attended regular education homeroom, Art, Technology and an Advocacy class (Tr. p. 322).  The student was assigned to "check in" with the special education teacher or a TA each morning in order to assist with organization for the day, to meet with regular education teachers, or to work on classwork or homework (Tr. pp. 322-24).  The special education teacher testified the student met with her in the resource room daily for 45 minutes per day, 30 minutes of which was 1:1 (Tr. pp. 325-26).  The student worked with the special education teacher on class assignments, homework and social skills (Tr. p. 326).  The student's special education teacher stated she modified the amount of Math homework the student was required to complete, and that he sometimes required tasks broken down and assistance with note taking (Tr. pp. 326, 361, 495).

              The student's IEP also provided for monthly team meetings and related services (Dist. Ex. 53).  The student met with the school psychologist for one individual and one group counseling session per week (Tr. p. 237).  Counseling sessions focused on the student's social interaction skills, conversation skills and conflict resolution (id.).  The school psychologist used two social skills curriculums, one to address problem-solving skills and one that addressed impulsivity and social skills (Tr. pp. 237-38).

               In addition to pull-out counseling services, the special education teacher stated she addressed the student's need for social skill development during a portion of the time she saw him daily in resource room (Tr. pp. 325-26).  The special education teacher provided instruction to the student in appropriate ways to gain attention, communication skills through role play, appropriate eye contact and voice tone skills and other interactive abilities (Tr. pp. 326-27).  The student participated in a group social skills program at lunchtime with the school guidance counselor and in December 2004 the school psychologist recommended adding a small group counseling session to the student's program (Tr. pp. 271-72, 357-58).  Further, additional recommendations were made in December 2004 to improve the student's attending and focusing skills (Tr. pp. 356-57; Dist. Ex. 51).  In addition to the services provided for by his IEP, the student received AIS services in Math and Reading (Dist. Ex. 68 at pp. 3-6).

               During the first week of school in September 2004, the special education teacher and two of petitioner's school psychologists developed a behavior intervention plan for the student as discussed during the August 2004 CSE meeting (Tr. pp. 338, 501; Dist. Ex. 35).  Respondent received the proposed behavior intervention plan and suggested changes to it (Tr. pp. 501-02). The behavior intervention plan identified the student's difficulty with focusing and impulsivity as behaviors of concern (Dist. Ex. 35).  The plan called for the use of daily checklists to track the student's behaviors in the classroom with a reward system based on his daily performance (Dist. Ex. 35).  After receipt of respondent's request that Wildwood provide petitioner with technical assistance regarding the student's behaviors, the December 2004 CSE agreed to obtain an independent FBA to be conducted by Wildwood (Dist. Exs. 47, 53 at p. 4).

              Team meetings were held by phone conference and the special education teacher stated she discussed the student with respondent on the phone (Tr. p. 358).  The special education teacher sent home daily checklists and monthly progress reports that were in addition to scheduled IEP updates and his report card (Tr. p. 358; see Dist. Exs. 40, 46, 52).  The special education teacher met with the student's teachers once per week and received from them progress reports regarding the student (Tr. pp. 359-60; see Dist. Ex. 78).  The student's regular education teachers informed the parent when the student was missing assignments (Tr. p. 358).

            The record reflects that the student progressed in the fall of 2004 in the very areas of respondent's concern, namely academic advancement and independence (Tr. pp. 33-34, 800-01).  During the fall of 2004, the record reveals that the student was actively involved in Science, Math and Social Studies (Tr. p. 329).  The special education teacher described the student as very academically capable, although she noted he performed better in the morning than in the afternoon due to fatigue (Tr. p. 339).  She stated the student could be involved in the afternoon classes if he was interested in the topic (Tr. p. 340).  The special education teacher testified that the student produced work at the sixth grade level and that a sixth grade instructional level was appropriate for him (Tr. p. 341).

            The special education teacher reported that the student's reading skills were average to above average, with grade level reading comprehension skills (Tr. pp. 341-42; Dist. Ex. 49; seeDist. Ex. 59 at p. 8).  Although she stated the student's math skills were below grade level due to difficulty with multiplication facts, the student was able to "maintain" a sixth grade math curriculum when modifications were provided, and she noted that in all subjects he was required to learn the same sixth grade content as the other students (Tr. pp. 342-43).

            The student's handwriting skills were an area of weakness.  The student used graph paper to assist with math assignments and the special education teacher informally encouraged him to use correct letter formation, noting that he had the ability to form letters and numbers (Tr. pp. 343-44, 454).  The student had access keyboards to support his penmanship deficits (Tr. p. 350). The special education teacher stated the student's keyboarding skills were age appropriate and although it may take him longer, the student completed the same writing assignments as the other students (Tr. pp. 344-45).  Reportedly the student was good at notifying a teacher when he wanted to use an assistive technology device for a writing assignment and enjoyed using a computer (Tr. pp. 350, 539).  The student's regular education Social Studies teacher testified the student's written expression progressed in that he provided more explanation in his written product (Tr. p. 540).

            The student's special education teacher, and regular education Science and Social Studies teachers testified that the student was given the same material content and assignments, and was graded using the same standards used for regular education students (Tr. pp. 345, 494-95, 542-43, 578).  In a report card dated November 19, 2004, the student's grades were in the B to C range and included comments such as "participates in class discussions," "seeks help when needed," "performance on quizzes/tests is very good," "understands the factual information covered in class," and "has excellent observation skills" (Dist. Ex. 68 at pp. 1-2).  For subjects that reported "Effort" scores, the student achieved designations of "3" (satisfactory) or "4" (very good) (see Tr. pp. 559-60; Dist. Ex. 68 at pp. 1-2).

            A review of monthly progress reports from October to December 2004 written by the student's special education teacher indicated the student's work in all classes was satisfactory or above, he was respectful and polite, did not display aggressive behaviors, initiated social interaction with peers, used his locker independently and was organized for school (Dist. Exs. 40, 46, 52).  The special education teacher noted that the student may have appeared to be unfocused in regular classes; however, he readily answered questions and participated (id.).  The reports indicated that the special education teacher observed a decrease in the amount of inappropriate behaviors demonstrated by the student (Dist. Exs. 46, 52).  The special education teacher concluded that the student was "very successful," happy and productive at Iroquois, as evidenced by report cards, progress reports, assignments and test results (Tr. pp. 365, 522).  She disagreed with respondent's assertion that the student did not have the academic foundation to succeed with a middle school curriculum (Tr. p. 365).  The special education teacher testified that over time the student was much more independent in navigating the hallway, organizing his books and playing with other students (Tr. pp. 370-71).  The majority of regular education teacher weekly reports from September to December 2004 indicate the student demonstrated at least satisfactory classroom behavior and classwork completion (Dist. Ex. 78).

             The purpose of the TA in the special class program was to assist all students, not just respondent's son, and they were instructed to be on the other side of the classroom from the student unless he needed assistance (Tr. pp. 294-95, 371-72, 465, 543, see Tr. pp. 61-62, 221).  At the beginning of the school year the student required close supervision due to inappropriate behaviors (Tr. pp. 332-33).  The school psychologist testified that when she observed the student in the regular education classes, the regular education teachers were involved with his behavior management instead of the TA (Tr. p. 292).  She stated the TA did not interfere with the student's ability to be accepted by his peers and she did not sense the student was self-conscious about the presence of the TA (Tr. pp. 292-94).  The regular education Science teacher stated the amount of guidance the student required decreased over time (Tr. pp. 566-70).

            The student sat at unassigned tables for lunch with regular education peers (Tr. p. 324). The special education teacher reported initially the student interacted inappropriately with other students at lunch; however, as the year progressed he was observed behaving appropriately in the lunchroom with the other children, without any TA or special education teacher guidance (Tr. pp. 324-25, 334).  She also stated the student participated in recess with other students, or the student would select children to go with him to the resource room to play a game (Tr. pp. 324-25).  Although the student was reported to require much adult support at the beginning of the 2004-05 school year, by the end of September 2004 he no longer required a TA to walk with him in the hallway (Tr. pp. 333-34).  The regular education Science teacher stated by December 2004 the student worked cooperatively in groups, even when the roles within the groups were not clearly defined and consensus of the group was required (Tr. p. 573).

            The school psychologist testified the student made progress toward his IEP counseling goals and objectives (Tr. pp. 242-44; Dist. Ex. 71).  Initially she used a visual cue card with the student to help him manage his impulsivity; however, as the school year progressed the student demonstrated self-monitoring and required less obvious cues (Tr. p. 243). The school psychologist opined the student was socially "doing fine" in the group sessions, and his biggest deficit was his impulsivity (Tr. p. 271).  She stated that his performance in the group improved once he knew the other group members (Tr. pp. 241-42).  The special education teacher stated the student had a nice relationship with two students who were in his program, and that a number of students asked about him and missed him after he was gone, even continuing to inquire about him into the 2005-06 school year (Tr. pp. 351-53; see also Tr. p. 279). 

            The special education teacher implemented the September 2004 behavior intervention plan at the beginning of the school year and testified that it was effective (Tr. p. 368).  She stated the student never saw the principal for disciplinary reasons and never acted in a rude manner (Tr. pp. 346-47).  The student did exhibit episodes of noncompliance in the classroom by placing his head on the desk and refusing to complete work (Tr. pp. 346-47, 354). When this occurred, the student was removed from the class and assigned to a study carrel near the principal's office to complete the work he would have been doing in class (Tr. pp. 347-48).⁵  The educational consultant from Wildwood reported that a review of the student's school records from October to December 2004 indicated the student was removed from the regular education class for noncompliance an average of one time per week (Dist. Ex. 62 at p. 28).  The special education teacher testified that once the student was familiar with the program routine he "stayed in the mainstream most of the time," and by January 2005 removals from regular education class for behavioral reasons averaged one half-hour per week (Tr. p. 437).  The student's regular education Social Studies teacher testified that compared to behavior observed at the beginning of the school year, there was a big change in the student's ability to attend to parts of class that did not interest him and to stay in class (Tr. pp. 540-42).  She reported the student made progress in his ability to interact appropriately and to demonstrate appropriate behavior (Tr. pp. 535-36).

            The educational consultant from Wildwood who conducted the January 2005 FBA and developed the student's behavioral support plan testified she observed the student at school in two or three classes and met with his team on several occasions (Tr. pp. 187, 190-91; Dist. Ex. 58).  During her observations in a regular education Science class which consisted of approximately 20 students, the student participated and raised his hand, interacted with other students and did not exhibit behavioral or social difficulties (Tr. pp. 193-94).  The student was observed to be "fidgety" in his regular education English class; however, the educational consultant testified the student attended to what was happening in the class (Tr. pp. 194-95).  The student had difficulty focusing in Math class during her observation, and was removed to complete his work in a separate location (Tr. p. 196).  The educational consultant testified that staff reported the student had made tremendous progress since the beginning of the year and was doing much better in school (Tr. p. 200).  She stated that the special education teacher and TA had positive interactions with the student and she never observed them "guarding" him as respondent had described (Tr. pp. 201-02).  She testified that the behavioral support plan developed from her observations could be implemented in the student's program and, based on her observations, he was functioning successfully overall and appeared to be benefiting from the program (Tr. pp. 209, 230).⁶  She further stated her observations were consistent with the progress reported by the student's teachers (Tr. p. 211).

            Regarding the June 2005 IEP, at the June meeting for the 2005-06 school year the CSE recommended the same program provided by the student's December 2004 IEP be continued for seventh grade, and also maintained the special class English and consultant teacher services for Science that had been recommended by the CSE in February 2005 (Dist. Ex. 62; see Dist. Ex. 59 at p. 2).  The CSE added special class English to the student's program due to his difficulty with written language and in response to a recommendation made by Wildwood (Tr. p. 69; Dist. Ex. 62 at pp. 2, 19-20).  Consultant teacher services for Science were added due to the amount of technical writing required in that course (Tr. pp.  588-90; Dist. Ex. 62 at p. 2).  The record reflects that the June 2005 IEP recommendations for the 2005-06 school year appear to be based on the student's success in the program the prior school year, and in consideration of the student's writing deficits which could negatively affect his performance in English and Science classes.

            Respondent asserts that the student required a small self-contained placement. The record reflects that the student participated successfully in large mainstream classes as well as in small groups (Tr. pp. 502-03).  The student's special education teacher stated the student did not necessarily function better in a small group, and that time of day and interest in the content of the instruction were better predictors of the student's success than the size of the group (Tr. p. 463).  The school psychologist observed the student in the regular education classes and stated he raised his hand to participate and volunteered additional information, and the content of his exchange was appropriate (Tr. pp. 245-47).  She testified she did not observe the student have difficulty "conforming" to the larger group (Tr. p. 272).  The regular education Social Studies teacher stated the student benefited from the sixth grade curriculum in a class of 25 students because he was receiving positive recognition from other students based on what he contributed to the class (Tr. p. 557).  She opined the student needed the opportunity to practice interpersonal skills in small and large group settings, and that his behavior could be addressed in the context of the sixth grade class (Tr. p. 558).  The regular education Science teacher stated the student did not require a small class but needed the stimulation of the other students.  She reported the student benefited from the large class setting, enjoyed class discussion and participated in class (Tr. pp. 578-79).

            Although the district complied with respondent's request to submit a packet of information to a day treatment program, petitioner's administrator testified he did not consider sending the student to a board of cooperative educational services (BOCES) placement as the day treatment program's admissions coordinator had suggested because the student was able to benefit from the regular education program (Tr. pp. 51-52).  The December 2004 IEP stated the student was considered for a full-time special class program but that was considered too restrictive (Dist. Ex. 53 at p. 5).  Petitioner's administrator testified the recommended program could meet the student's needs in the LRE and that the program met the independent psychology report's recommendation for a stable, predictable, safe environment where the student could build consistent connections (Tr. p. 43).  He testified the program's provision of frequent interaction with the special education teacher and TA also met the independent psychology report's recommendation for more intensive intervention necessary for the student to stay focused on tasks and to put thoughts on paper legibly (Tr. p. 44).

            The fact that experts hired by respondent recommended programming different from the program ultimately recommended by the CSE does not mean that the CSE's recommendation was inappropriate (see e.g., Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 145 [N.D.N.Y. 2004]; see also Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989]).  Where the IEP is reasonably calculated to confer educational benefit, the existence of other contrary recommendations do not mandate a different recommendation by the CSE (see id.).  Additionally, the IDEA does not require states to develop IEPs that "maximize the potential of handicapped children" (Rowley, 458 U.S. at 197 n.21, 199).  What the statute guarantees is an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Tucker, 873 F.2d at 567 [internal citation omitted]; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).  Under the Rowley standard, the district is required to offer a program which provides the child with meaningful access to an education with "sufficient educational benefit" (Rowley, 458 U.S. at 202), which the Second Circuit has interpreted to be "more than mere trivial advancement" (Mrs. B., 103 F.3d at 1121; see Walczak, 142 F.3d at 130; see also M.S., 231 F.3d at 105).  The IDEA does not require school districts to maximize the potential of each child with a disability (Rowley, 458 U.S. at 199; see Walczak, 142 F.3d at 130), it simply requires school districts to provide access to specialized instruction and related services which are individually designed to provide educational benefit to the child (Rowley, 458 U.S. at 200-201).  The record fails to reflect that the private evaluators were aware of or considered the IDEA requirements when making their recommendations.  For example, the private psychiatrist testified that "the best educational setting for this boy would be a small, self-contained setting" (Tr. pp. 899, 904), and that one of his concerns was that the student would not be "optimizing" his learning in petitioner's program (Tr. p. 908).

            Additionally, the private psychiatrist never observed the student in the school setting, never spoke with district representatives, and never reviewed teacher progress reports or report cards for the student (Tr. pp. 916-17).  Further, none of the evaluators who recommended either a small self-contained classroom or day treatment for the student had ever observed the student in petitioner's special class program and there is no indication in the record that they discussed the student with his special education teacher (Tr. pp. 473-74, 810, 813, 916).

            Contrary to the impartial hearing officer's conclusions, I find that the present levels of performance contained in the student's December 2004 and June 2005 IEPs reflect the evaluation results that were available to the CSE at the time the IEPs were formulated.  The student had been extensively evaluated (Tr. p. 916), and there was no requirement for the CSE to list every past evaluation, as the impartial hearing officer appeared to believe.  Additionally, contrary to the impartial hearing officer's reference, the CSE was required to consider the independent psychological evaluation report, but was not required to specifically list it on an IEP (34 C.F.R. §§ 300.346, 300.347).  It is undisputed by the parties that the independent psychological report was reviewed by the CSE (Tr. p. 667).  The independent psychological report describes the student's difficulty with inattention and impulsivity, as do the IEPs in question (Dist. Exs. 22 at p. 3, 53 at pp. 2-3, 62 at p. 7).  Additionally, information regarding the student's academic performance, including evaluation results obtained by respondent that were included on the IEP, were consistent with the independent psychological evaluation results for the student, as detailed above.  Although not referenced on the December 2004 IEP, a behavior intervention plan was in place for the student at that time, and that IEP references that Wildwood was going to conduct an FBA to be considered at a February 2005 IEP meeting, which did in fact occur (Dist. Exs. 35, 53 at p. 4).  The June 2005 IEP contains both the FBA and behavioral support plan that Wildwood developed for the student (Dist. Ex. 62 at pp. 17-22, 26-30).  Further, both IEPs in question provided for monthly (December 2004 IEP) or quarterly (June 2005 IEP) meetings with the parent (Dist. Exs. 53, 62). 

             Regarding the June 2005 IEP, the headmaster of HCS participated by phone and this information was included on the IEP (Tr. pp. 398-99, 402).  The student was reportedly being instructed on the fourth grade level at HCS, and therefore it was anticipated by petitioner that HCS was requiring "significantly below what [the district] would require of him" and that the student would have in fact lost ground by the time he returned to respondent's schools for what was expected to be his seventh grade year (2005-06) (Tr. pp. 401-02, 512, 516).  The present levels of performance on the student's June 2005 IEP reflected his present levels when he was removed from petitioner's schools, and petitioner noted that the student would be tested upon his return (Tr. pp. 401-03, 518-19).

            Further, I find that the impartial hearing officer erred in finding that petitioner had predetermined the CSE's recommendations for the student (see, e.g., Application of a Child with a Disability, Appeal No. 05-110).  According to respondent's testimony at the impartial hearing, she did not tell the December 2004 CSE that she intended to unilaterally place her son because she was "waiting to see what the CSE might come up with"  (Tr. p. 811).  While respondent has asserted that she believed petitioner was unwilling to consider any other program recommendation, the record as a whole suggests that in fact respondent became unwilling to accept program recommendations other than day treatment or a self-contained classroom. At respondent's request, petitioner did in fact pursue other options.  Petitioner sent referral information to a day treatment program which rejected the student because it felt it would be overly restrictive for this student.  Also, despite the fact that the student's inappropriate behaviors had substantially decreased by the end of 2004, petitioner, at respondent's request, arranged for Wildwood to conduct an FBA.  Notably, the Wildwood evaluator concurred with petitioner's teachers and concluded that the student was progressing in his present program.  In summary, the record as a whole does not suggest that respondent was prevented from meaningful participation in the IEP development process (see, e.g., Cerra, 427 F.3d at 194).

              The student's inappropriate behaviors at home were described throughout the record as at times aggressive and violent, contrary to what the student exhibited in the school setting, where aggression and violence were not observed.  Petitioner was not required to address home behaviors which did not have an impact upon the student's educational performance, and was also not required to take into account possible future behaviors, as the impartial hearing officer concluded in his decision (IHO Decision, p.  47).  The impartial hearing officer held that more comprehensive and intensive services were required "to prevent deterioration of academic functioning and the need for more intensive services later on" (id.).  Also, contrary to the record, the impartial hearing officer concluded that the student's dependence on adults increased while he attended petitioner's school and that he did not work independently.  Testimony by multiple witnesses, as detailed above, established that this was not the case.  The impartial hearing officer credits respondent's witnesses regarding the student's "increased anxiety and oppositional behavior"  (IHO Decision, p. 48), but these witnesses did not observe the student in the school environment.

               The record demonstrates that the student has benefited from the special class program in petitioner's schools.  Although the student may have been difficult to manage at home, there is no evidence in the record that the student's behavior at home affects his ability to benefit from his educational program.  The record therefore does not afford a basis to conclude that the student requires a more restrictive placement to receive educational benefit (compare, Walczak, 142 F.3d at 131-32 [residential placement not appropriate where student can make meaningful social and academic progress in a less restrictive program], with, Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1122 [2d Cir. 1997] [residential placement appropriate and necessary to address emotional problems and home life problems, where child was otherwise not making educational progress]; see also Application of a Child with a Disability, Appeal No. 04-021 [behaviors at home do not mandate a more restrictive placement where the child's ability to benefit from his present educational program was not affected]). 

             The written IEPs in question do contain certain deficits, although under the circumstances of this case, I do not find that these deficits rise to the level of a denial of FAPE.  Upon review of the IEPs and supporting information in the record, I find that the IEPs contain sufficient information to allow for measurement of progress in most of the student's areas of need.  Those goals and objectives, which lack clarity and specificity, are supported in part by testimony and by narrative progress reports.  The inadequacies in the goals and objectives do not rise to the level of requiring a conclusion that the child was not offered a FAPE; however, I strongly encourage petitioner to ensure that all service providers work to develop more specific language for describing measurement criteria for IEP goals and objectives.

               Based upon the information before me, I find that the December 2004 and June 2005 IEPs, at the time they were formulated, were reasonably calculated to enable the student to receive educational benefit (see, e.g., Viola, 414 F. Supp. 2d at 382; Application of the Bd. of Educ., Appeal No. 06-010; Application of a Child with a Disability, Appeal No. 05-021).   In light of the circumstances of the present complex case, as detailed above, I therefore find that petitioner offered the student an appropriate program for the 2004-05 and 2005-06 school years, as detailed herein, and I annul the impartial hearing officer's decision.

            Having determined that the student was not denied a FAPE for the 2004-05 and 2005-06 school years, it is not necessary for me to consider the appropriateness of the program respondent obtained for her son, or whether the equities support her claim for tuition reimbursement.

THE APPEAL IS SUSTAINED. 

IT IS ORDERED that the impartial hearing officer's decision is annulled in its entirety.