06-129

           Petitioner, the Board of Education of the Sachem Central School District, appeals from the decision of an impartial hearing officer, which found that it failed to offer an appropriate educational program to respondents' son and ordered it to reimburse respondents for their son's tuition costs at the Gersh Academy (Gersh) for that portion of the 2005-06 school year when the student attended Gersh.  The appeal must be sustained.

            At the commencement of the impartial hearing on June 13, 2006, respondents' son was 13 years old and attending eighth grade at Gersh (Tr. pp. 27, 399-400).  The student exhibits significant deficits due to Asperger's disorder, obsessive compulsive disorder (OCD), Tourette's syndrome, oppositional defiant disorder (ODD), and orthopedic difficulties with his legs that required surgery in 2005 (Tr. pp. 402-04; Dist. Ex. 15 at p. 13).  These deficits impact the student's social development, motor and communication skills, management within the classroom, environment within the school, activities of daily living, study and organization skills, anxiety level, play, and learning (see Dist. Ex. 1 at pp. 9-25). 

            Gersh is a private school for students with neurobiological disorders, such as autistic spectrum disorders, Tourette's syndrome, anxiety, depression, attention deficit hyperactivity disorder (ADHD), or OCD (Tr. pp. 156-58, 292-93).  The Commissioner of Education has not approved Gersh as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7; Tr. pp. 197-98).  The student's eligibility for special education programs and services as a student with multiple disabilities is not in dispute in this appeal (8 NYCRR 200.1[zz][8]; Tr. p. 31).

            Respondents' son began receiving early intervention services after being diagnosed with autism when he was two years old (Tr. pp. 402-04; see Dist. Ex. 5 at p. 1; Dist. Ex. 7 at p. 1; Dist. Ex. 8 at p. 1; Dist. Ex. 9 at p. 1).  The student was diagnosed with pervasive developmental disorder-autistic type (PDD) and high functioning Asperger's disorder at ages four and five (Dist. Ex. 9 at p. 1).  The record indicates that the student also exhibits some components of OCD, Tourette's syndrome, a nonverbal learning disability, ODD, and a writing disability (Tr. p. 403).  Respondents' son attended a variety of district placements, Board of Cooperative Educational Services (BOCES) centers, and BOCES district-based programs from kindergarten through the fifth grade (see Tr. pp. 403-27, 430-38).  In fifth grade during the 2002-03 school year, the student received in-school and out-of-school suspensions for noncompliant behavior, and as a result, respondents removed him from school and petitioner provided home instruction (Tr. pp. 422-24, 426-27, 429-38).  Testimony by petitioner's coordinator of student services noted that the student's difficulties during the 2002-03 school year resulted in a "long history of disciplinary actions" that "eroded" the "cooperation between the school and [respondents]" (Tr. p. 82).

            For sixth grade during the 2003-04 school year, petitioner's Committee on Special Education (CSE) placed the student in a 6:1+1 special class in the Jefferson Academic Center at the Eastern Suffolk BOCES (Jefferson) (Tr. pp. 41, 439-42).  Jefferson is described in the record as a "self-contained learning center for children with a variety of difficulties" including Asperger's disorder (Tr. p. 42).  The student's mother brought the Jefferson program to petitioner's attention after learning about it from one of her son's private evaluators (Tr. pp. 439-42; 498-500).  Between October and December, the student received two one-day out-of-school suspensions for noncompliant behavior (Tr. pp. 83-85, 442-43, 446-47, 499-502).

            On August 10, 2004, petitioner's Subcommittee on Special Education (sub-CSE) convened for the student's annual review and to develop an individualized education program (IEP) for the 2004-05 school year (Dist. Ex. 1 at pp. 1, 7).  The sub-CSE recommended continuing the student's placement in a 6:1+1 special class at Jefferson for the 2004-05 school year (Tr. pp. 42, 462; Dist. Ex. 1 at p. 16).  The student's mother testified that she did not agree with the proposed placement for the 2004-05 school year and voiced her disagreement at the meeting (Tr. pp. 462-63).  She further testified that at some point after the August 10, 2004 sub-CSE meeting, she went for a site visit at Gersh as a potential placement for her son for the 2004-05 school year (Tr. pp. 464-68; see Parent Ex. EE).  Respondents did not, however, place their son at Gersh for the 2004-05 school year (Tr. p. 468; Dist. Ex. 2 at p. 1).

            On September 29, 2004, petitioner's CSE convened (Tr. pp. 43-45, 467; Dist. Ex. 2 at p. 1).  The CSE continued to recommend a 6:1+1 special class at Jefferson and related services (Tr. pp. 43-45, 395-97, 467; Dist. Ex. 2 at p. 6).  Petitioner's coordinator of student services, who attended the CSE meeting, testified that respondents would not allow their son to return to Jefferson (Tr. p. 397; Dist. Ex. 2 at p. 6).  Respondents invoked their rights to pursue an impartial hearing, and the CSE offered home instruction (Tr. pp. 396-97; Dist. Ex. 2 at pp. 1, 7).  Petitioner contracted with an outside agency, Metro Therapy, Inc., to provide home instruction and related services to the student during the 2004-05 school year (Tr. pp. 43-46; Dist. Exs. 3, 5-9).  Respondents withdrew their request for an impartial hearing, and the student completed seventh grade on home instruction (Tr. pp. 397-98, 468).

            During the 2004-05 school year, Metro Therapy, Inc., conducted the following evaluations of the student: a physical therapy evaluation, an annual review report containing a summary of the 2004-05 school year and recommendations for the 2005-06 school year prepared by the student's special education teacher, an occupational therapy (OT) evaluation, a social history, and a psychological evaluation (Dist. Exs. 3, 5-9; see Dist. Ex. 15 at pp. 1-2). 

            The physical therapist's report, dated October 2004, contained information about the student's musculoskeletal assessment, functional status and gross motor skills (Dist. Ex. 5 at pp. 1-4, 7-14).  The report documented deficits in the student's range of motion, flexibility, postural deviations, endurance, ambulatory skills, standing, high level balance, and stair climbing activities (Dist. Ex. 5 at pp. 2-5).  The physical therapist opined that the student required supervision for "all activities such as ambulating particularly with other students around, stairclimbing (sic) without railing, and standing in a class line" (Dist. Ex. 5 at p. 5).  She further opined that the student's ambulatory deficits may affect his "ability to safely exit a building during times of emergency" and that his postural and range of motion deficits may "impede his ability to attend to classroom activities or on his learning abilities" (Dist. Ex. 5 at p. 5).  The physical therapist recommended two 30-minute sessions of physical therapy per week in a 1:1 setting (Dist. Ex. 5 at p. 6).

            According to the annual review report completed in February 2005, the student's special education teacher opined that in order for him to progress in the regular education curriculum, the student's primary area of need was his negative attitude (Dist. Ex. 6 at pp. 2-3).  She reported that the student exhibited a "short fuse," and he refused to attempt tasks when he was unsure of his ability to succeed (Dist. Ex. 6 at p. 2).  The report noted that he became defiant and noncompliant if he was not "part of planning strategies to achieve his academic goals" (Dist. Ex. 6 at p. 2).  She reported that the student's anger could sometimes be defused in a short time with the right words or it could persist to the extent that work sessions could not proceed (see id.).  The special education teacher noted that many of the student's IEP goals were related to his behavior (id.).

            The annual review report summarized the student's progress toward attaining his IEP goals and identified the student's IEP goals and objectives that required continued services (Dist. Ex. 6 at pp. 2-3).  The special education teacher also identified writing, math and the student's behavior as areas of continued need, and she recommended placement in a school based program for the 2005-06 school year with a "strong support team" that understood the student's disability (Dist. Ex. 6 at pp. 1-4).  The special education teacher's report noted strategies she used with the student, including books on tape, the Internet, and a calculator (Dist. Ex. 6 at p. 3).  She opined that the student's placement should be "in a flexible environment" to allow him to work at his own pace and to feel some "control over his style of learning" (Dist. Ex. 6 at p. 4).  The annual review report contained recommended goals and objectives for writing and behavior, as well as other goals and objectives identified by codes (Dist. Ex. 6 at pp. 3, 6-7).  The student's mother testified that the CSE's secretary accessed the goals and objectives, identified by codes, using her laptop computer during the CSE meeting on August 8, 2005 (Tr. p. 504).

            The OT evaluation report, dated October 2004, indicated that the student was referred due to concerns regarding sensory processing, handwriting, and fine motor skills (Dist. Ex. 7 at p. 1).  The occupational therapist administered the Test of Visual-Motor Skills-Revised (TVMS-2) to evaluate the student's visual-motor strengths, weaknesses, and ability to translate with his hand what he visually perceived (Dist. Ex. 7 at p. 2).  The student achieved a standard score (SS) of 55 (1st percentile) on the TVMS-2, which the therapist characterized as a "poor performance score" (Dist. Ex. 7 at p. 2).  The therapist opined that the student exhibited a "true delay" in the skills that form the foundation for handwriting and drawing (Dist. Ex. 7 at p. 2).

            The occupational therapist administered the Motor Free Visual Perpetual Test (MVPT-3) to assess the student's five visual perceptual skills necessary for academic success:  spatial relations, visual discrimination, figure ground, visual memory, and visual closure (id.).  The student achieved a SS of 82 (11th percentile), which the therapist characterized as "below average" (Dist. Ex. 7 at p. 2).

            In addition to the standardized tests, the occupational therapist evaluated the student's postural stability, fine motor skills, bilateral coordination, visual motor skills, sensory processing skills, motor planning skills, handwriting, and activities of daily living (Dist. Ex. 7 at pp. 2-5).  She summarized that the student, upon clinical observation, presented with "decreased postural stability, inconsistent crossing midline, immature grasp and immature ocular motor skills as well as difficulty in processing various sensory stimuli" (Dist. Ex. 7 at p. 5).  Based upon the results of her evaluation, the occupational therapist recommended one session per week of OT in a group setting (Dist. Ex. 7 at p. 8).  In addition, the occupational therapist recommended four goals to improve the student's "ability to use sensory information," "functional shoulder, arm, and hand control," "visual perception and/or perceptual motor skills," and "written communication skills" (Dist. Ex. 7 at p. 5). 

            A psychologist with Metro Therapy, Inc. completed the student's psychological evaluation in February 2005 (Dist. Ex. 9 at p. 1).  The psychologist administered the Stanford-Binet Intelligence Scales-Fifth Edition (Stanford-Binet-5), the Vineland Adaptive Behavior Scales-Interview Edition (Vineland), the Bender Visual-Motor Gestalt Test (Bender Gestalt), the Beery Developmental Test of Visual-Motor Integration (VMI), and the Sentence Completion Test to the student (Dist. Ex. 9 at pp. 3-5; see Dist. Ex. 15 at pp. 1-2).  During the evaluation, the psychologist observed varying degrees of eye contact, lengthy delays in responding to questions or in understanding directions, and many varieties of self-stimulatory behavior, including flicking or snapping his hands, tapping on the tabletop, and twirling his clacker toy (see Dist. Ex. 9 at p. 2).  At times, the student sub-vocalized (id.).  The psychologist reported that the student displayed good frustration tolerance, but high distractibility (id.).

            Administration of the Stanford-Binet-5 yielded a full scale IQ score of 73 (4th percentile), a verbal IQ score of 75 (5th percentile), and a nonverbal IQ score of 74 (4th percentile) (Dist. Ex. 9 at p. 3).  The psychologist noted that, overall, the student's scores indicated below average cognitive functioning (id.).  On the Vineland, the student achieved a SS of 70 (2nd percentile) on the adaptive behavior scales, which the psychologist reported as indicating "below average adaptive functioning" (Dist. Ex. 9 at pp. 3-4).  With respect to the student's social/emotional functioning, the psychologist opined that the student's scores on the Vineland indicated "borderline levels for social skills" (Dist. Ex. 9 at p. 5). 

            Although requested, respondents declined consent to allow Metro Therapy, Inc. to administer a vocational assessment and the Wechsler Individual Achievement Test-II (WIAT-II) to the student during the 2004-05 school year (Dist. Ex. 3 at pp. 1-2; Dist. Ex. 6 at pp. 3, 7-8).

            In preparation for the student's 2005-06 school year, petitioner began to mail screening packets to potential placements on or about May 24, 2005 (Tr. pp. 21, 55-61; see Dist. Exs. 10-14).  The record reveals that the screening packets contained approximately 75 pages of information about the student, including his most recent evaluations conducted by Metro Therapy, Inc. during the 2004-05 school year, a 2003-04 report card with teacher reports and progress reports, the student's September 29, 2004 IEP, 2003-04 educational reports and recommendations from Jefferson, and Jefferson's proposed goals and objectives for the student's 2004-05 school year (Tr. pp. 21, 57, 232-34; see Dist. Ex. 17).  Respondents visited approximately four potential placements (Tr. pp. 470-72).  The student's mother testified that at least two schools did not offer a placement to her son (Tr. pp. 471-72; see Tr. pp. 59-60; Dist. Ex. 13).  The record indicates that Eastern Suffolk BOCES received the student's screening packet and, after review, notified petitioner by letter dated June 7, 2005, that they could offer an appropriate placement for the student in a 6:1+1 special class at Jefferson (Tr. pp. 232-36; Dist. Ex. 14).

            On August 8, 2005, petitioner's CSE convened for a reevaluation review and developed an IEP for the student's 2005-06 school year (Dist. Ex. 15 at pp. 1, 13).  The IEP included the most recent evaluative data obtained by Metro Therapy, Inc. during the 2004-05 school year (Dist. Ex. 15 at pp. 1-2).  Petitioner's CSE members included the following individuals:  the Metro Therapy psychologist who performed the most recent psychological evaluation (via telephone), a psychologist representing the Jefferson program (via telephone), the CSE's secretary, the student's parents, the Metro Therapy, Inc. physical therapist who provided therapy to the student during the 2004-05 school year and performed the most recent physical therapy evaluation of the student (denoted "occupational" therapist in the record; via telephone), a parent member, petitioner's social worker, the CSE chairperson, petitioner's school psychologist, and a special education teacher from petitioner's district (Tr. p. 62; Dist. Ex. 15 at p. 13; see Dist. Exs. 5, 9).  The student's mother described the meeting as "quite lengthy," indicating that it lasted between two to three hours and that the CSE reviewed "all the reports" (Tr. pp. 470, 472, 503).  She testified that the CSE discussed the student's related services (Tr. p. 472).  With respect to the student's proposed goals and objectives, the student's mother testified that although they were discussed "generically," no "specifics" were discussed and she was not asked her opinion about the appropriateness of the goals and objectives (Tr. pp. 472-75).  She did testify, however, that she was able to voice her opinion regarding "some of them" but there were "actually, too many goals" for her son (Tr. p. 474). 

            The CSE recommended placement in a 6:1+1 special class at Jefferson with the related services of counseling, OT, physical therapy, and speech-language therapy (Tr. pp. 63-64; Dist. Ex. 15 at pp. 9-10).  The CSE developed three annual goals and 12 objectives to address the student's speech-language needs in the areas of auditory skills, expressive language and pragmatic language (Dist. Ex. 15 at pp. 4-5).  The CSE also developed five annual goals and 23 objectives to address the student's OT needs in the areas of self-care, classroom materials and activities, graphomotor skills, perception/perceptual motor skills, and postural control (Dist. Ex. 15 at pp. 5-7).  To address the student's physical therapy needs, the CSE generated four annual goals and 15 objectives in the areas of motor tasks relating to arrival and dismissal, building management, and classroom management, and motor skills necessary for appropriate physical and social development (Dist. Ex. 15 at pp. 7-8).  With respect to the student's social and behavioral needs, the CSE developed two annual goals and eight objectives to address his needs in the areas of interactions with adults and peer relationships (Dist. Ex. 15 at p. 9).  The CSE also generated an annual goal and four objectives to address the student's needs in the areas of English Language Arts (ELA) and reading (Dist. Ex. 15 at p. 3). In addition, the CSE developed two annual goals and nine objectives to address the student's needs in the areas of organization, study skills, time management, and classroom management (Dist. Ex. 15 at p. 4). 

            The record reveals that respondents requested an impartial hearing for the 2005-06 school year by letters dated August 26, 2005, and January 25, 2006 (Parent Ex. A at p. 1; Parent Ex. Z at p. 1).  In the August 2005 letter, respondents advised petitioner of their rejection of the proposed placement for their son at the Jefferson program because it was not an appropriate placement to meet their son's educational needs (Parent Ex. Z at p. 1).  Respondents' letter notified petitioner of their intentions to send their son to Gersh for the 2005-06 school year, retain an attorney, and pursue an impartial hearing to seek funding for the costs of their son's tuition at Gersh (id.). 

            In the January 2006 request for an impartial hearing prepared by respondents' attorney, respondents alleged that petitioner failed to provide their son with a free appropriate public education (FAPE)¹ for the 2005-06 school year due to procedural and substantive violations (Parent Ex. A at p. 1).  Respondents alleged that the proposed placement at Jefferson for the 2005-06 school year would not provide appropriate instruction "such that he will be provided with an opportunity to progress in the general curriculum, meet appropriate annual goals, and/or achieve any educational growth" (Parent Ex. A at p. 2).  Respondents also claimed they were denied meaningful participation in the preparation of the 2005-06 IEP because petitioner's CSE refused to "consider the parents' input and opinions regarding its proposed placement for the student" and they were denied a role in formulating the student's annual goals and objectives (Parent Ex. A at pp. 3, 5).  Respondents alleged that the annual goals and objectives do not "appropriately address any or the entirety of [the student's] educational deficits," lack measurability, and were not individually tailored to address the student's needs (Parent Ex. A at pp. 5-6).  Respondents also alleged that petitioner failed to conduct a functional behavioral assessment (FBA) prior to developing the student's 2005-06 IEP and failed to adequately evaluate and determine the student's vocational skills, aptitudes, and interests (Parent Ex. A at pp. 6-7).  The letter indicated that respondents reserved their right to challenge the composition of petitioner's CSE, "including, but not limited to, the qualifications of any of the team members and/or the manner in which any of said team members participated in the review meeting" (Parent Ex. A at p. 7).

            At the impartial hearing, petitioner and respondents presented testimonial and documentary evidence (Tr. pp. 1-505; Parent Exs. A-LL; Dist. Exs. 1-17). According to the student's mother's testimony, she was "surprised" when the CSE recommended Jefferson, and she stated that no discussion took place at the CSE meeting regarding the student's placement (Tr. pp. 475-76).  She testified regarding her and her son's experiences and dissatisfaction with the building wide behavioral program at Jefferson during the student's sixth grade school year in 2003-04 (Tr. pp. 442-59).  In particular, the student's mother testified that the positive reinforcement system used at Jefferson became a punishment for her son because he was never able to earn points, which would have allowed him to earn rewards (Tr. pp. 453-59).

            Petitioner's coordinator of student services testified regarding the approach taken to secure a placement for the student for the 2005-06 school year, given the history between the parties and his knowledge and understanding of the parties' past experiences placing the student in an appropriate setting (Tr. pp. 62-66, 69-72, 79-84; see Tr. pp. 408-38).  In particular, he stated that "we wanted to start from scratch" and thus recommended obtaining respondents' consent "to send out packets to a variety of programs" (Tr. pp. 55-56).  In addition, he testified that Jefferson had "all of the component puzzle pieces for [the student]" and that the CSE's goal was to return the student to a program "where he would benefit from the social interaction with other students" since he had been on home instruction for the 2004-05 school year (Tr. pp. 65-66).

            With respect to the recommended placement at Jefferson, petitioner's coordinator of student services testified that respondents did not voice disagreement with the proposed placement at the meeting and "[t]here was a lot of discussion about knowing the full ramifications of a decision like this" (Tr. pp. 115-16).  He also recalled asking respondents at the meeting to "be a little bit cooperative with us, to give this thing a shot before we made any final determinations for moving him" (Tr. p. 115).  Petitioner's coordinator of student services also testified that the CSE discussed Jefferson's building wide behavior plan at the meeting, and he referred to some of the counseling goals and objectives contained in the student's IEP, which included information about how the student "needed to be treated academically," as evidence of those discussions (Tr. pp. 109-10).

            The Jefferson building principal also testified at the impartial hearing (Tr. pp. 227-86).  She testified that Jefferson was an appropriate placement for the student because, academically and behaviorally, he was very similar to the profiles of other students at Jefferson (Tr. pp. 234-39).  The principal further testified that students are grouped according to their academic achievement and social capabilities (Tr. pp. 247-53).  She also testified regarding the behavior program used at Jefferson (Tr. pp. 237-38).  In particular, she described how students earned points and rewards, which could be turned in for prizes at the school store (Tr. pp. 237, 254-59).  The principal's testimony detailed how the behavior program could be modified, how a counselor at Jefferson could create a "program specific for [a] child," or how behavior contracts could be specialized for certain children (Tr. pp. 237-38, 254-59).  With respect to this student, the principal testified that she believed Jefferson could accommodate the student's needs because "[w]e don't give everybody the same program, so if a child has a special need we work around it and try to make it work for that particular child and family" (Tr. p. 238).

            Petitioner's coordinator of student services testified that the Jefferson program "had all of the component puzzle pieces" for the student in a program that would provide him with social interaction and all of his related services (Tr. pp. 64-66).  The principal of the Jefferson program testified that if students do not succeed with their program's point system for behavior management, individual contracts are developed for them.  She stated that the recommended program meets the individual needs of the students and it was her opinion that they could accommodate the student and all of his needs (Tr. pp. 236-38). The CSE decided the Jefferson program could provide the services the student needed in a way that would be acceptable and beneficial (Tr. pp. 65-66). The CSE indicated that there was flexibility on the part of the Jefferson program to create and mold a program for the student that would be effective (Tr. pp. 237, 254-257).

            By decision dated October 5, 2006, the impartial hearing officer determined that respondents met their burden of proving that petitioner failed to offer the student a FAPE for the 2005-06 school year, that Gersh was an appropriate placement, and that the equities favored respondents (IHO Decision, pp. 8-15).  The impartial hearing officer directed petitioner to reimburse respondents for the costs of their son's tuition at Gersh upon petitioner's receipt of copies of paid receipts (IHO Decision, p. 15). 

            The impartial hearing officer concluded that respondents met their burden of establishing that the program developed by petitioner's CSE at the August 8, 2005 meeting was not appropriate to meet the student's needs for both procedural and substantive reasons (IHO Decision, p. 11).  In particular, the impartial hearing officer based his determination upon the following:  petitioner's failure to include a special education teacher of the student at the CSE meeting on August 8, 2005; petitioner's failure to give sufficient time or attention to discuss respondents' concerns about Jefferson's school wide behavioral system and the student's specific behavior needs; and petitioner's failure to include parent counseling and training in the student's 2005-06 IEP pursuant to the Regulations of the Commissioner of Education, which pertain to educational programs for students with autism (IHO Decision, pp. 11-14; see 8 NYCRR 200.13).

            Petitioner appeals the decision of the impartial hearing officer and alleges that the impartial hearing officer improperly invalidated the student's 2005-06 IEP and, therefore, improperly determined that petitioner failed to offer a FAPE to the student for the 2005-06 school year.  Petitioner contends that the proposed placement in a 6:1+1 special class at Jefferson was appropriate to meet the student's needs. Specifically, petitioner asserts that the impartial hearing officer erred when he made the following findings and conclusions:  the CSE's failure to include a special education teacher of the student constituted a denial of FAPE; the CSE failed to adequately discuss the student's behavior needs; the failure to include parent counseling and training pursuant to state regulations invalidated the student's IEP; and respondents met their burden to establish that Gersh was an appropriate placement for the student.  Petitioner also asserts that respondents did not raise the issue of parent counseling and training as a basis to invalidate the student's 2005-06 IEP in their request for an impartial hearing.

            Respondents assert in their answer that the impartial hearing officer's decision should be upheld and that petitioner's appeal should be dismissed.  Respondents allege that the "substantial weight" of the evidence supported respondents' contentions that the student's annual goals were not objectively measurable and were not discussed at the meeting.  Respondents further contend that petitioner should not be allowed to assert on appeal that the Jefferson psychologist who attended the August 8, 2005 CSE meeting would be the psychologist providing the student's counseling services, because petitioner did not raise this argument during the impartial hearing.

            The central purpose of the Individuals with Disabilities Education Improvement Act (IDEA) (20 U.S.C. §§ 1400-1482)² is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]).  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[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22).³   The "core of the statute" is the collaborative process between parents and schools, primarily through the IEP process (see Schaffer, 126 S. Ct. at 532).  The federal and state statutes and regulations concerning the education of children with disabilities provide for a collaborative process between parents and school districts in planning and providing appropriate special education services (see Schaffer, 126 S.Ct. at 532; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192-93 [2d Cir. 2005]).

            A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra, 427 F.3d at 192).  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, 471 U.S. at 370-71).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (id. at pp. 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). 

            The first step is to determine whether the district offered to provide a FAPE to the student (see Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]).  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 206-07; Cerra, 427 F.3d at 192).  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]).  The IDEA directs that, in general, a decision by an impartial hearing officer shall be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]).  Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; see 34 C.F.R. § 300.513[a][2]).  Also, an impartial hearing officer is not precluded from ordering a school district to comply with IDEA procedural requirements (20 U.S.C. § 1415[f][3][E][iii]). 

             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, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]), in other words, is likely to provide some "meaningful" benefit (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120  [2d Cir. 1997]).  The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).  The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114, 300.116; 8 NYCRR 200.6[a][1]).  The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer, 126 S.Ct. at 537 [finding it improper under the IDEA to assume that every IEP is invalid until the school district demonstrates that it is not]). 

             An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of the Bd. of Educ., Appeal No. 06-076; Application of a Child with a Disability, Appeal No. 06-059; Application of the Bd. of Educ., Appeal No. 06-029; 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). 

            In this case, the impartial hearing officer concluded that the IEP developed at the August 8, 2005 CSE meeting failed to offer the student a FAPE for the following reasons:  petitioner failed to include a special education teacher of the student at the CSE meeting on August 8, 2005; petitioner failed to give sufficient time or attention to discuss respondents' concerns about Jefferson's school wide behavioral system, and failed to address his specific behavior needs in the IEP; and petitioner failed to include parent counseling and training in the student's 2005-06 IEP pursuant to state regulations pertaining to educational programs for students with autism (IHO Decision, pp. 11-14).  For the reasons set forth below, I disagree with the impartial hearing officer and conclude that petitioner offered a FAPE to the student for the 2005-06 school year. 

            The impartial hearing officer determined that neither petitioner's special education teacher who attended the August 8, 2005 CSE meeting, nor the student's Metro Therapy, Inc. physical therapist (special education provider) who attended the August 8, 2005 CSE meeting via telephone, met the requirement of "a special education teacher of the student" as set forth in the state regulations regarding mandatory CSE members (IHO Decision, pp. 11-13; see 8 NYCRR 200.3[a][1][iii] [requiring "not less than one special education teacher of the student, or, if appropriate, not less than one special education provider of the student" as a mandatory CSE member]; 20 U.S.C. § 1414[d][1][B][iii]; 34 C.F.R. § 300.321[a][3]).

            The record reveals that in addition to the petitioner's special education teacher and the Metro Therapy, Inc. physical therapist in attendance at the CSE meeting, a psychologist representing the Jefferson program also attended the meeting.  Testimony in the record reflects that the Jefferson psychologist was very familiar with the programs and services offered at Jefferson, she could have been a special education provider of the student in eighth grade for his counseling, and she had been provided with the student's file prior to the CSE meeting (Tr. pp. 105-06; 245-46).  Also, although the impartial hearing officer correctly concluded that the special education teacher at the CSE meeting never taught the student, nor would she be the special education teacher implementing the proposed IEP, the CSE also included the student's physical therapist, who provided services to the student during the 2004-05 school year when the student received home instruction and who conducted the most recent physical therapy evaluation of the student.

            The record also reveals that because the student's IEP contained physical therapy, OT, speech-language therapy, and counseling for his social, emotional, and behavioral needs, it was appropriate to include the student's then physical therapy provider and/or the Jefferson psychologist at the CSE meeting to develop the student's 2005-06 IEP.  The record reveals that petitioner attempted to include the student's special education teacher who provided home instruction during the 2004-05 school year; however, she was unavailable for the CSE meeting.  The testimony at the impartial hearing indicates that petitioner's CSE reviewed the special education teacher's detailed report of the student's progress and needs during 2004-05, and the CSE incorporated the report into the student's IEP in many of the student's counseling goals and objectives.

            Given that this student was finishing a year of home instruction and has had minimal social interactions with peers, the CSE appropriately concluded, under the facts of this case, that it was important to return him to a program where he would be able to interact with a variety of adults and students.  The record supports the conclusion that the Jefferson program would be prepared to work with the student in the areas of his needs and integrate him into the new class (Tr. pp. 62-65).  Thus, I find that the CSE, as composed, did not deny the student a FAPE.   I further note that the record is devoid of evidence that respondents raised any objection to the composition of the CSE at the meeting or that respondents raised questions or concerns at the CSE meeting about the student's programs or services that went unanswered or unexplained by the CSE. 

            As the newly amended IDEA mandates, even if a procedural violation occurs, an impartial hearing officer can only conclude that a denial of FAPE occurred if the procedural violation (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; see 34 C.F.R. § 300.513[a][2]).  Based upon the facts presented in the record, I find that the impartial hearing officer erred when he concluded that, as a result of the composition of the CSE, respondent was denied a FAPE for the 2005-06 school year. 

            I also disagree with the impartial hearing officer's determination that the student's IEP was invalid because it failed to provide for parent training and counseling pursuant to the state regulations regarding educational programs for autistic students.  I note that although the student's IEP did not separately provide for parent training and counseling, state regulations include parent training and counseling as a component of the student's proposed placement in the 6:1+1 special class at Jefferson (8 NYCRR § 200.6[g][4][ii][a], [g][8] [noting that "for parents of students placed in special classes described in subparagraphs (4)(ii) and (iii) of this subdivision, provision shall be made for parent counseling and training as defined in section 200.1(kk) of this Part for the purpose of enabling parents to perform appropriate follow-up intervention activities at home"]).  The record includes testimony by Jefferson's principal regarding the parent training offered through Jefferson (Tr. pp. 283-86).  It appears that had the student attended the 6:1+1 special class at Jefferson, respondents would have had the opportunity to attend the parent training classes.  However, respondents did not raise this issue in their request for an impartial hearing or at the impartial hearing itself, and therefore, under the circumstances of this case, I find that the impartial hearing officer improperly relied upon this issue as a reason to invalidate the student's 2005-06 IEP.

            Finally, I disagree with the impartial hearing officer's conclusion that the CSE did not allow adequate time or pay adequate attention to respondents' concerns regarding Jefferson's behavior plan.  Notably, the impartial hearing officer prefaces his determination of this issue with the following:  "I find that [respondents] were accorded the opportunity to be heard" (IHO Decision, pp. 13-14).  It is unclear from the record just how the CSE did not allow adequate time or pay adequate attention to respondents' concerns, considering that the meeting lasted between two and three hours according to the student's mother's own testimony.  The record reveals that in the past, respondents participated in every CSE meeting, corresponded with petitioner's CSE chairperson, visited proposed placements, offered suggestions for consideration, hired an attorney to review recommended testing and/or evaluations, and discussed issues of concern with petitioner's CSE or the CSE chairperson, since the student's entry into petitioner's district. 

            An overall reading of the record reveals respondent was afforded an opportunity to meaningfully participate in the formulation of the August 2005 IEP (see Cerra, 427 F.3d at 186; see also Viola v. Arlington Cent. Sch. Dist., 2006 WL 300449 [S.D.N.Y. 2006]).

            I encourage the parties to endeavor to work cooperatively in planning and providing appropriate special education services to meet the needs of the student.

THE APPEAL IS SUSTAINED.