Application of the NEW YORK CITY DEPARTMENT OF EDUCATION for review of a determination of a hearing officer relating to the provision of educational services to a child suspected of having a disability
Michael Best, Special Assistant Corporation Counsel, attorney for petitioner, Hilary Steuer, Esq., of counsel
Law Office of Neal Howard Rosenberg, attorney for respondent, Neal H. Rosenberg, Esq., of counsel
Petitioner, the New York City Department of Education, appeals from the decision of an impartial hearing officer which annulled the determination of its Committee on Special Education (CSE) that respondent's daughter was ineligible for special education programs and services, and ordered that respondent's daughter be eligible as a student with a disability and that petitioner reimburse respondent for her daughter's tuition costs at the Dalton School (Dalton) for the 2005-06 school year. The appeal must be sustained.
Respondent's daughter was 11 years old and in a fifth grade regular education class at Dalton at the commencement of the impartial hearing in May 2006. Dalton has not been approved by the Commissioner of Education as a school with which school districts may contract to educate students with disabilities (see 8 NYCRR 200.7, 200.1[d]). At the time of the impartial hearing, the student was not classified as eligible for special education services and her classification is a matter of dispute.
Respondent's daughter attended a program for gifted students at Public School 166 (P.S. 166) from kindergarten through third grade (Tr. p. 80). The record reflects the student's consistent academic success in petitioner's program. Her 2001-02 report card from P.S. 166, when the student was in second grade, reflects that she was progressing in petitioner's gifted program (Tr. p. 221; Dist. Ex. 17). Her 2002-03 report card from the end of third grade in petitioner's gifted and talented program indicates that the student met or exceeded grade level standards (Tr. pp. 220-21; Dist. Ex. 16). In addition, on standardized citywide testing that was conducted at the end of her third grade year, the student performed well on the English Language Arts (ELA) test and scored within level four, the highest level possible. She scored 100 percent in both the literary response and expression, and critical analysis areas of the ELA test, achieving scores that are higher than the average scores of 61 percent and 64 percent, respectively, for all New York City students who took the citywide test (Tr. pp. 221-22; Dist. Ex. 15). Her score of 95 percent on the information and understanding area of the test was substantially higher than the average score of 65 percent (Tr. pp. 221-22; Dist. Ex. 15). On the third grade standardized citywide test for math, the student scored at level three, meeting grade level standards (Dist. Ex. 15).
The student was diagnosed with bipolar disorder during the 2002-03 school year (third grade) (Tr. pp. 14, 16; Dist. Ex. 9), during which time she continued to perform well academically. For the 2003-04 school year, respondent placed the student at Dalton, where she was placed in an accelerated academic program in a general education environment. Respondent testified that she placed her daughter at Dalton after she became "dysfunctional in the home" and at the recommendation of her daughter's psychiatrist, who could not "medically stabilize" her (Tr. pp. 107-08). She has remained at Dalton and was enrolled in Dalton's accelerated academic program during the 2005-06 school year, the school year at issue on this appeal.
On October 5, 2005, during the student's fifth grade year at Dalton, by letter respondent referred her daughter to petitioner for evaluation, without further explanation (Parent Ex. E; Dist. Ex. 3). Respondent testified at the impartial hearing that a conversation with a friend had been the impetus for her referral of her daughter for evaluation (Tr. pp. 92-93). Respondent consented to the initial evaluation of her daughter on December 5, 2005 (Dist. Ex. 4).
Petitioner's CSE convened on January 23, 2006 with petitioner's school psychologist, who also served as the district representative; petitioner's social worker; petitioner's special education teacher assigned to the CSE, who also holds a master's degree in educational psychology (Tr. pp. 317-18), and who observed the student at Dalton on December 13, 2005 (Tr. p. 318; Dist. Ex. 7); the student's teacher from Dalton (by telephone); the student's private psychologist; the parents; and the additional parent member in attendance (Tr. p. 234; Dist Ex. 11 at pp. 1-2). Testimony by petitioner's school psychologist indicates that the January 23, 2006 CSE "reviewed everything" (Tr. p. 286), including the educational records bureau (ERB) report from 2002 (Tr. p. 287; Dist. Ex. 20); results of the psychoeducational evaluation conducted by petitioner's school psychologist on December 5, 2005 (Tr. p. 210; Dist. Exs. 6, 11 at pp. 3-1, 3-2, 4-1); report cards from P.S. 166 when the student was in second grade in 2001-02 and third grade in 2002-03 (Tr. p. 220; Dist. Exs. 16, 17); results of the student's standardized citywide ELA test from 2003 (Tr. pp. 221-22; Dist. Ex. 15); a letter from the student's private psychiatrist (Tr. pp. 224, 336; Dist Ex. 9, Parent Ex. C); the private psychological evaluation report dated December 31, 2005, January 2, 2006 and January 9, 2006 (Tr. pp. 336-37; Dist Ex. 10, Parent Ex. B); petitioner's observation of the student at Dalton (Dist. Ex. 7); and the student's Dalton fall 2005 report card (Tr. pp. 223, 225-29; Dist. Exs. 8, 11 at p. 3-1).
The December 2005 psychological evaluation report describes the student as articulate, highly imaginative, focused, and "very bright and highly motivated with a great deal of energy that needs to be channeled" (Dist. Ex. 6 at p. 7). Overall, the student's cognitive functioning fell within the upper end of the superior range of the Stanford Binet Intelligence Scale: Fifth Edition Abbreviated Battery (id.). Her academic functioning was found to be commensurate with her cognitive abilities (id.). Socially and emotionally, the student is described as having adequate personal adjustment and coping skills and support systems in place, as well as positive outlets for her problems (id.). No behavioral or emotional problems are reported by the student (id.).
Respondent's private psychological and neuropsychological testing report dated December 2005/January 2006 was provided to petitioner's school psychologist and considered at the January 23, 2006 CSE meeting (Tr. p. 225; Dist. Ex. 10). It indicates that respondent's daughter has diagnoses of bipolar disorder and attention deficit hyperactivity disorder (ADHD), inattentive type (Dist. Ex. 10 at p. 9). The document prepared at the January 23, 2006 CSE meeting includes results of the Wechsler Intelligence Scale for Children - IV (WISC-IV) and indicates that the student's performance yielded a full scale IQ score of 115, which is in the high average range of cognitive functioning (84th percentile), a verbal comprehension score of 130, in the very superior range (98th percentile), and scores in the average range on subtests measuring perceptual reasoning (66th percentile), working memory (61st percentile), and processing (50th percentile) (Tr. p. 226; Dist. Ex. 11 at p. 3-1). Comparing respondent's December 2005/January 2006 neuropsychological testing (Dist. Ex. 10) with the December 2005 psychoeducational testing conducted by petitioner's school psychologist (Dist. Ex. 6), the school psychologist testified that respondent's neuropsychological test results complemented as well as supplemented the psychoeducational testing that she conducted (Tr. p. 226). Petitioner's school psychologist also explained her disagreement with some of the findings noted in respondent's December 2005/January 2006 report that were based on respondent's May/June 1999 psychoeducational evaluation of the student, including use of an incorrect birth date which resulted in the student being compared with a group of older students (Tr. pp. 228-29, Dist. Ex. 18). The school psychologist further explained that the background information explained in respondent's December 2005/January 2006 neuropsychological testing (Tr. pp. 229-30; Dist. Ex. 10) did not incorporate respondent's November 1999 report of intelligence testing, thereby omitting information that the Stanford Binet Intelligence Scale: Fourth Edition (Stanford Binet) had been administered to the student twice within 1999 (Dist. Ex. 19; Tr. pp. 230-31). Petitioner's school psychologist stated that administration of the same test twice within the same year could elicit the "practice effect," defined as an improvement in the student's scores due to practice and familiarity with test format. The student's score on the Stanford Binet went from the 83rd percentile in June 1999 to the 98th percentile in November 1999 (Tr. pp. 231, 233). The school psychologist stated that with a score in the 98th percentile, the student was eligible to enter petitioner's gifted and talented program (Tr. p. 231); she opined that the student's expectations of her capabilities may actually exceed her capacity, and that the student might be overachieving (Tr. p. 233).
The record reflects that the CSE discussed three possible disability classifications for the student with the parents: learning disability, emotional disturbance, and other health impaired (Tr. p. 235). The CSE ultimately determined that respondent's daughter was not eligible to be classified as a student with a disability (Dist. Ex. 11).
Regarding the classification of learning disability, the CSE determined that the student did not meet the discrepancy formula and the criteria for learning disability, according to state regulations (Dist. Ex. 12; Tr. p. 236). Petitioner's school psychologist opined that the student's bipolar disorder was not interfering with her educational performance (Tr. p. 289). The CSE also determined that the student's ability to speak, listen, read, write, or learn in general was not affected by her bipolar disorder and that her bipolar disorder did not impact upon her educational performance (Tr. pp. 288-89).
Regarding the classification of emotional disturbance, the CSE determined that the student did not meet the definition of a student with an emotional disturbance based upon the information before them (Tr. pp. 236-37). Petitioner's school psychologist stated in her evaluation report that results of administration of the Behavioral Assessment System for Children-Second Edition (BASC-2) administered on December 5, 2005 "are not indicative of any degree of behavioral psychopathology and functional impairment" (Dist. Ex. 6 at pp. 6-7). In addition, the December 2005/January 2006 private neuropsychological evaluation report indicates that the student sometimes has difficulty processing visual cues that require an immediate response, particularly in social situations (Dist. Ex. 10 at p. 9). Information about the student provided by respondent's private psychologist is consistent with information provided in the record by petitioner's school psychologist that the student has the same thematic, identity, and emotional concerns as most youngsters her age (Tr. pp. 237-38, 303; Dist. Exs. 6 at pp. 6-7, 10 at p. 9).
Lastly, the CSE considered the classification of other health impairment and determined that the student did not meet the definition of a student with an other health impairment based upon the information before them (Tr. pp. 238-39, 246). The record reflects that the January 23, 2006 CSE was informed that the student was doing "very well academically" at Dalton (Tr. p. 332), that she was exceeding age and grade expectancy, and that she may even be overachieving (Tr. pp. 238-39). In addition, the CSE understood from the psychiatrist's letter that the student's bipolar symptoms had at least partially stabilized after she started receiving medication and supportive psychotherapy (Tr. p. 224; Dist. Ex. 9).
After the January 23, 2006 CSE took the student's bipolar condition and all of the testing into consideration, it determined that the student's educational performance was not adversely affected by the bipolar condition (Tr. p. 289). Testimony by the school psychologist indicates that this decision was explained to respondent (Tr. p. 235). Petitioner's CSE classified the student as "non-handicapped" and recommended that she participate in the general education environment (Tr. p. 242; Dist. Ex. 11 at p. 1).
Respondent served a due process complaint notice on January 9, 2006, which was amended on January 25, 2006, and requested classification of the student and tuition reimbursement for Dalton for the 2005-06 school year (Dist. Exs. 1, 2).
The impartial hearing was held on May 5, 2006 and June 2, 2006. By decision dated September 11, 2006,1 the impartial hearing officer found that the student was eligible for special education services as a student with an other health impairment (IHO Decision, p. 7). He concluded that the student had been denied a free appropriate public education (FAPE)2 for the 2005-06 school year by virtue of petitioner's failure to classify her as a student with a disability (id. at p. 8). He then awarded tuition reimbursement to respondent for the 2005-06 school year after finding that respondent's placement of the student at Dalton was appropriate and that the equities favored respondent (id. at pp. 8-9).
Petitioner appeals the entirety of the impartial hearing officer's decision and asserts that the impartial hearing officer erred in finding the student eligible for special education services under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482). Petitioner asserts that, while the student's bipolar disorder may result in inconsistent behavior, it has not been established that it adversely affected her educational performance, and that therefore petitioner's CSE appropriately declined to classify the student as a student with a disability on January 23, 2006. Respondent submitted an answer, disputing petitioner's assertions and asserting that there was testimony and documentary evidence to support the impartial hearing officer's conclusion that the student should be classified as a student with an other health impairment.
As detailed herein, I concur with petitioner that petitioner's CSE appropriately determined that the student was ineligible for special education programs and services based upon the information before it, which did not establish that the student's educational performance was adversely affected by bipolar disorder or ADHD, or that the student needed special education services under the IDEA.
The central purpose of the IDEA is to ensure that students with disabilities have available to them a FAPE (Frank G. v. Bd. of Educ., 459 F.3d 356, 363 [2d Cir. 2006]; see Schaffer v. Weast, 126 S. Ct. 528, 531 ; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 ; 20 U.S.C. § 1400[d][A]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written individualized education program (IEP) (20 U.S.C. § 1401[D]; see 20 U.S.C. § 1414). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206, 207). "The IEP is the central mechanism by which public schools ensure that their disabled students receive a free appropriate public education" (Polera v. Bd. of Educ., 288 F.3d 478, 482 [2d Cir. 2002]). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 114[a]; 8 NYCRR 200.6[a]). The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (Schaffer, 126 S. Ct. at 537).
In order to be classified as a child with a disability under federal or state law, a student must have a specific physical, mental or emotional condition to the extent that the student requires special services and programs (20 U.S.C. § 1401 [defining a child with a disability as one who, by reason of their disability, "needs special education and related services"]; 34 C.F.R. § 300.8[a] [same];3 Educ. Law § 4401; 8 NYCRR 200.1[zz] [defining a student with a disability as one who "requires special services and programs"]; Application of a Child Suspected of Having a Disability, Appeal No. 05-047).
The regulations of the Commissioner of Education define "other health impairment" (OHI) as:
[H]aving limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or tourette syndrome, which adversely affects a student's educational performance.
(8 NYCRR 200.1[zz] [emphasis added]; 34 C.F.R. § 300.8[c]).
To be classified as a student with an OHI, the student's impairment must therefore "adversely affect the student's performance" to the extent that the student "needs special education and related services" (20 U.S.C. § 1401[A][ii]; 34 C.F.R. § 300.8[a]; Educ. Law § 4401; 8 NYCRR 200.1[zz]).
As detailed below, after reviewing the record, I find that it does not support a finding that the student's diagnoses of bipolar disorder and ADHD were adversely impacting her educational performance or that special education was required. The student's achievement on standardized tests was consistent with her cognitive abilities (Dist. Ex. 6).
Although the record indicates that respondent's daughter has some social and emotional difficulties due to her bipolar disorder, the record does not reflect that these have risen to the level where they are adversely affecting her educational performance or her ability to benefit from regular education, or that she needs special education (20 U.S.C. § 1401; 34 C.F.R. § 300.8[a]; Educ. Law § 4401; 8 NYCRR 200.1[zz]). Notably, the record reflects that the student was doing "very well academically" at Dalton (Tr. p. 332), that she was exceeding age and grade expectancy, and may even be overachieving (Tr. pp. 238-39). Her academic functioning was reported to be "commensurate with her cognitive abilities" (Dist. Ex. 6 at p. 7).
The impartial hearing officer in the present case based his conclusion that the student's educational performance was adversely affected by her bipolar disorder on testimony by the student's private school teacher that the student at times exhibited bipolar behavior in school (IHO Decision, p. 7; Tr. pp. 157-59). The impartial hearing officer acknowledged that there was "no empirical evidence . . . that her disorder had any impact on her educational performance . . ." (IHO Decision, p. 7). The private school teacher testified that the student at times appeared depressed, cried or had classroom outbursts (Tr. pp. 157-58). The impartial hearing officer then concluded that "[a]lthough [the student] scored in the above-average range for both test scores and grades alike, it is more likely than not that her scores and grades would be higher if not for the disorder" (IHO Decision, p. 7). The record in this case does not support this speculative conclusion. I therefore disagree with the impartial hearing officer's decision that the student is properly classified as a student with an other health impairment.
Respondent asserts that the impartial hearing officer's determination was correct and that it was also supported by documentary evidence, in addition to the private school teacher's testimony detailed above. Having reviewed the evidence upon which respondent relies, which was also considered by petitioner's CSE, I find that the CSE correctly determined that the student's educational performance was not adversely affected and that she does not require special education services. First, the private psychologist's report dated December 2005/January 2006 indicated that the student had emotional and social vulnerabilities for which the evaluator recommended medical and psychological support, small class size, experienced teachers and a "highly orderly environment" (Dist. Ex. B at p. 10). She opined that the student may need academic support in the future and may need accommodations on standardized tests, such as extended time and a separate location, because of her anxiety and distractibility (id.). Second, respondent's private psychiatrist's one-page letter dated December 14, 2005 makes a conclusory statement that "[the student's] uneven academic and social functioning interferes with her education, and an individualized education program is needed to meet her needs" (Dist. Ex. C). The letter references that the student can be impulsive, aggressive, and demanding; acknowledges that she is "extremely gifted in many areas"; and further states that the student could benefit from "smaller classes, increased 1:1 teaching, greater flexibility with academic activities, and increased support when her symptoms interfere with school and social functioning" (id.). Lastly, respondent cites to a 1999 psychoeducational evaluation report from when the student was four years old and in kindergarten, which concluded that the student "deserves a well structured, stimulating educational environment that can capitalize on her tremendous creativity and wealth of associations and ideas even as it offers her clear academic structures and goals" (Dist. Ex. 18 at p. 2). These documents do not provide a factual basis for concluding that the student's educational performance was being adversely affected, and while the CSE appropriately considered them, it was not required to classify her as a student with a disability based on this information.
As noted above, the student performed successfully while she attended petitioner's gifted and talented program, and she has performed successfully most recently in Dalton's accelerated program, based upon age and grade expectancies and her own cognitive abilities. During the 2002-03 school year, when the student was in third grade in petitioner's program, despite her 26 days absent and 51 days late, her performance exceeded grade expectancy, as she was at or above grade level under all circumstances, performing within level three and level four, the highest level on the report card (Tr. pp. 301-02; Dist. Ex. 16 at pp. 1-2). The January 23, 2006 CSE reviewed available documents that indicate the student's grades are commensurate with the results of standardized cognitive and achievement testing (Tr. p. 286; Dist. Ex. 6 at p. 7). The evidence in the record does not suggest that the student needs special education services (Tr. pp. 296-98, 350, 357).
Petitioner's school psychologist testified that school performance needs to be considered as part of the total picture. She acknowledged results of the WISC-IV indicated that the student's relative weaknesses were in processing speed and working memory (Dist. Ex. 10 at p. 5), which are skills that are needed to function in the classroom. The school psychologist indicated that it was important to determine if those skills are significantly delayed and how they impact on the student's educational performance (Tr. p. 248). The record reflects that the student's consistently excellent grades and improving performance while she was attending petitioner's talented and gifted program (Tr. p. 355, Dist. Ex. 16 at pp. 1-2, Dist. Ex. 17 at pp. 1-2) indicate that the January 23, 2006 CSE correctly determined that the student's educational performance was not adversely affected by the diagnoses of bipolar disorder (Tr. p. 289; Dist. Ex. 9) or ADHD (Dist. Ex. 10 at p. 9). Further, the special education teacher who performed the observation of the student at Dalton reported that the student's private school teacher praised the student's abilities (Dist. Ex. 7 at p. 1). The special education teacher elaborated in her testimony that the private school teacher had indicated to her that she was pleased with the student's academic skills, was concerned with her difficulty maintaining friends, and that the student was doing well academically at Dalton (Tr. pp. 322-30). The special education teacher also elaborated that her observation of the student revealed appropriate interaction with teachers and other students (Tr. p. 321). She further testified that Dalton's individual class progress reports that she reviewed did not indicate any socialization concerns (Tr. p. 325). For example she testified that the science class report indicated the student was attentive and "excellent" in participating in classroom discussions (Tr. p. 327) and that the physical education report reflected that she successfully participates in team sports such as soccer, volleyball and football (Tr. pp. 329-30). Pertaining to the latter, the special education teacher opined that successful team sport activity required "very highly sophisticated social skills" (Tr. p. 330).
The testimony of respondent's witnesses at the impartial hearing did not demonstrate that the student should be classified as a student with a disability, because it did not demonstrate that the student needs special education services. The private treating psychologist of the student testified that the student would do better in a small environment because it would make her feel more positive about herself (Tr. p. 43). Her recommendations also included challenging academics, the opportunity for breaks, prompting, and social skills development (Tr. pp. 48, 51-53). The private school teacher testified that her recommendations for the student would include 19 or fewer students in a class, a person with whom the student could "continually check in," a rigorous curriculum, and access to a school nurse and school psychologist (Tr. pp. 175-76). Respondent testified that, in her opinion, a public school program for her daughter should include the following: appropriate academics, a "functionally appropriate" program, counseling, a one to one teacher, a small classroom, a stable and highly structured environment, rules, and the absence of other "rapid cyclers" like her daughter (Tr. pp. 93-94). Testimony by petitioner's witnesses revealed that in a public school placement, as a general education student, the student would likely have access to a nurse, psychologist, social worker, and/or guidance counselor and that "time out" rooms such as the nurse's office or counselor's office could be used if needed (Tr. pp. 332-34). In addition, she noted that prompting and "positive reinforcement" are part of "good teaching" (Tr. p. 332) and that the student was succeeding at Dalton without one-to-one remediation (Tr. p. 334). Moreover the record does not reveal why or how special education would remediate the student's history of tardiness. Petitioner's school psychologist and special education teacher testified that the student need not be eligible as a student with a disability or have an IEP to receive the prompting, refocusing, and assistance for maintaining social relationships that the student currently receives at Dalton, because all of those interventions are available in petitioner's general education settings (Tr. pp. 296-98, 350, 357). In addition, petitioner's public school would be able to provide greater flexibility for the student with academic activities in the general education setting with increased support (Tr. p. 244), and the student would be able to speak with either the teacher, the social worker, guidance counselor or psychologist to address whatever anxieties she would be feeling (Tr. p. 245), replicating the services that the record describes as occurring at Dalton (Tr. p. 355).
In conclusion, I find that the CSE appropriately declined to classify the student as a student with a disability because the record as a whole does not demonstrate that the student's educational performance was adversely affected by her bipolar disorder or that she needs special education services. I therefore disagree with the impartial hearing officer's conclusion that the student should be classified as a student with an other health impairment. As the student does not meet the criteria for classification as a child with a disability, she is not entitled to the remedies available under IDEA. For the foregoing reasons, the necessary inquiry is at an end and petitioner is not required to reimburse respondent for the tuition costs associated with her daughter's placement at Dalton for the 2005-06 school year.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the impartial hearing officer's decision is annulled to the extent that it found respondent's daughter eligible to receive special education services and programs under the IDEA and ordered reimbursement to respondent of tuition for the student's attendance at Dalton for the 2005-06 school year.
1 State and federal regulations require an impartial hearing officer to render a decision within 45 days after the expiration of the adjusted or non-adjusted resolution period (8 NYCRR 200.5[j]; 34 C.F.R. § 300.515[a]), unless an extension has been granted at the request of either party (8 NYCRR 200.5[j][i]; 34 C.F.R. § 300.515[c]). "In cases where extensions of time have been granted beyond the applicable required timelines, the decision must be rendered and mailed no later than 14 days from the date the impartial hearing officer closes the record. The date the record is closed shall be indicated in the decision" (see 8 NYCRR 200.5[j][v]).
The transcript reflects that the 45-day compliance deadline was extended (Tr. pp. 365-66). I remind the impartial hearing officer of the requirement to include the record close date within his decision and to ensure that his decision is rendered and mailed within 14 days from the record close date.
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.
3 The Code of Federal Regulations (34 C.F.R. Parts 300 and 301) has been amended to implement changes made to the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004. The amended regulations became effective October 13, 2006. In this case, none of the new provisions contained in the amended regulations are applicable because all relevant events occurred prior to the effective date of the new regulations. However, for convenience, citations herein refer to the regulations as amended because the regulations have been reorganized and renumbered.