Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the NEW YORK CITY DEPARTMENT OF EDUCATION
Skyer, Castro, Foley & Gersten, attorney for petitioners, Sonia Mendez-Castro, Esq., of counsel
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Martin Bowe, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for the costs of privately obtained services for their son for the 2006-07 school year. The appeal must be sustained in part.
During the impartial hearing in fall 2006, petitioners' son was nearly five years old and attending preschool at the Children's Aid Society (CAS). His eligibility for special education programs and classification as a student having autism are not dispute in this appeal (see 8 NYCRR 200.1[zz]).
The child has deficits in cognition, communication, motor development, social skills, and adaptive skills (Dist. Ex. 10 at p. 5). He was identified as having a pervasive developmental disorder -- not otherwise specified (PDD-NOS) when he was approximately 18 to 20 months old, and began receiving Early Intervention (EI) services after his second birthday (Tr. pp. 333-35; Parent Ex. C at p. 1). The child's EI services consisted of approximately 40 hours per week of a combination of home-based applied behavioral analysis (ABA) therapy, occupational therapy, physical therapy and speech-language therapy (Tr. pp. 334-35).
The child transitioned from EI to the jurisdiction of respondent's Committee on Preschool Special Education (CPSE), which evaluated and identified the child as eligible to receive special education services as a preschool student with a disability, and provided special education and related services (Parent Ex. B at p. 1). The child initially attended The Third Street Music Settlement (Third Street) and subsequently attended The Barrow Street School (Barrow) three days per week for three hours per day during the 2005-06 school year (Tr. pp. 346-47).
A special education itinerant teacher (SEIT) progress report dated August 12, 2005 indicated use of the Assessment of Basic Language and Learner Skills (ABLLS), Hawaii Early Learning Profile (HELP) Checklist/Strands, and ABA data to document and track the child's skill repertoire (Parent Ex. F at pp. 1, 2). The report noted that the child made progress in the cognitive, communication/language, social/play, and self-help/daily living skills domains, but he continued to demonstrate significant delays (id.). The SEIT recommended continued ABA/SEIT services for 30 hours per week to address the child's goals (Parent Ex. F at p. 2).
In a September 16, 2005 occupational therapy evaluation progress report, the occupational therapist stated that the child's inability to process sensory information affected his level of sustained attention, which affected his ability to acquire age appropriate gross and fine motor skills (Parent Ex. E at p. 2). The occupational therapist recommended that individual occupational therapy services continue three times per week for 60 minutes per session in an office-based setting using sensory techniques (id.).
A speech and language progress report dated September 17, 2005 stated that administration of the Pre-School Language Scale-4 (PLS-4) was attempted but only some items of the test were completed due to the child’s non-compliance (Parent Ex. C at p. 1). Receptively, the child was able to identify various common pictured objects, identify his own body parts, and recognize action in pictures (id.). The child inconsistently demonstrated understanding of pronouns and followed some one-step directions with multiple prompts and contextual cues (id.). He also was able to name some objects in pictures, respond to yes/no questions, request items verbally, and intermittently request assistance (id.). At times, when the child was not able to label pictured objects, he was able to do so when provided with a phonemic cue (id.). Expressively, the child demonstrated scatter skills which made it "impossible to assess his age level of performance," but the last progress report indicated that he demonstrated some skills in the two year six month to the two year eleven month age range (id.). The speech-language pathologist described the child as having a severe communication disorder, characterized by deficits in receptive and expressive language skills, as well as reduced pragmatic skills (id.). She recommended that the child continue to receive individual speech-language therapy five times per week for 60 minutes per session (Parent Ex. C at p. 2).
A physical therapy progress note written in September 2005 (Parent Ex. D at pp. 1-2) indicated that administration of the Peabody Developmental Motor Scale – 2 (PDMS-2) yielded an age equivalent score of 28 to 31 months for gross motor skills, equivalent to a delay of 34 to 40.4 percent (Parent Ex. D at p. 2). The physical therapist recommended that the child continue to receive individual physical therapy services two times per week for 60 minutes per session (id.).
On October 17, 2005, respondent's CPSE convened to review the child's program (Parent Ex. B at p. 2). The CPSE recommended 12-month programming (Parent Ex. B at p. 1), and two individual 60-minute physical therapy sessions per week, five individual 60-minute speech-language therapy sessions per week, and four 60-minute individual occupational therapy sessions per week (Parent Ex. B at p. 21). In addition, the CPSE recommended 24 hours of SEIT services and the initiation of paraprofessional services for 120 minutes per day four times per week (Parent Ex. B at pp. 2, 19, 21).
A January 2006 educational progress report written by the child's SEIT indicated that although the child had made gains in his ability to attend tasks, he continued to engage in repetitive vocalizations or singing, which interfered with his ability to attend to teacher directed tasks (Dist. Ex. 10 at p. 2). The report also indicated that the child made steady gains in his social/emotional development, but still needed a great deal of support to complete teacher directed activities (id.) The report further stated that the child's interest in his peers had emerged, as he demonstrated ability to note which peers were not present at the preschool and asked why (id.). The report further stated that with the SEIT acting as a facilitator the child engaged in play with his peers (Dist. Ex. 10 at pp. 2-3). The report further noted that without the SEIT, the child tended to engage in his own play (id.). The report further indicated that the child had shown improvement in his speech-language skills, his physical development and his self-care skills (Dist. Ex. 10 at pp. 3-5). The report reflected that the SEIT recommended that the child continue to receive services in a preschool classroom (which the report described as a "socially stimulating environment"), SEIT services, occupational therapy, speech-language therapy, and ABA services (Dist. Ex. 10 at p. 5).
A January 25, 2006 speech-language progress report indicated that with a 1:1 ratio and continued intervention, the child continued to make progress in his speech-language functioning (Dist. Ex. 7 at p. 2). The report also noted that the child's overall processing and comprehension of verbal information improved, but remained severely impaired for his age (id.). The speech-language pathologist specifically noted the importance of the child receiving 1:1 intense intervention for progress to continue in speech and language (id.). The report specifically indicates, "[the child's] significant language delays contribute to and exacerbate his behavioral difficulties," and that his emerging ability to express some physical states such as "go to sleep" when he is tired has helped reduce some of his behavioral tantrums (id.). The speech-language pathologist recommended that the child continue to receive speech-language therapy five days per week for 60 minute sessions in the home (Dist. Ex. 7 at p. 4).
A January 25, 2006 SEIT progress report indicated use of the ABLLS, HELP, and ABA data to document and track the child's skill repertoire (Dist. Ex. 8 at p. 1). The report noted that the child made progress in the cognitive, communication/language, social/play, and self-help/daily living skills domains, but he continued to demonstrate significant delays (id.). The SEIT recommended continued ABA/SEIT/paraprofessional services for 30 hours per week to address the child's goals (Dist. Ex. 8 at p. 2).
The occupational therapist who provided therapy to the child at Special Programs in Occupational Therapy Services (SPOTS), a sensory gym in Manhattan, prepared a progress report on January 25, 2006 (Dist. Ex. 9). She indicated that the child occasionally resorted to biting and screaming behaviors to avoid challenging activities and tried to manipulate the therapist (Dist. Ex. 9 at p. 1). She further indicated that these negative behaviors were infrequent and the child demonstrated improved frustration tolerance and ability to process multisensory information (id.). The report also noted that the child evidenced an increase in eye contact with the therapist (Dist. Ex. 9 at p. 2). The report recommended that the child continue to receive 1:1 occupational therapy services three times a week for 60 minute sessions in the office-based setting (id.).
An occupational therapy progress report, dated January 26, 2006, written by the in-home therapy provider, indicated that the child appeared more related and was better able to sustain his focus of attention during activities (Dist. Ex. 6 at p. 1). In reporting on the child's progress, the therapist noted that the child had made "great leaps" in the past year (Dist. Ex. 6 at p. 2) and recommended continued individual occupational therapy twice weekly for one hour per session (Dist. Ex. 6 at p. 3).
A March 15, 2006 SEIT progress report noted that the child required full time support in the classroom in addition to routine, consistency and structure (Dist. Ex. 5). The report noted that the child continued to make slow, steady progress in all areas of his development, however his attention span was limited and he required verbal prompts to focus and attend (id.). The report further noted that teacher directed activities were difficult for the child, and that he required a five minute warning before a transition (id.). The SEIT recommended that the child continue to receive his services and opined that he responds well to ABA, SEIT services, and 12 months of schooling (id.).
A March 28, 2006 report of a classroom observation at Barrow reflected that respondent's observer characterized only one instance of the child’s communication behavior as a "whine,'' for which he was appropriately redirected by the SEIT (Dist. Ex. 4 at p. 1). The observation report indicated no incidence of any behavioral outburst during the observation and provided examples of the child following directions with prompts by the teacher or SEIT (Dist. Ex. 4 at pp. 1-2). The report also indicated that the child required prompts to interact with other children (Dist. Ex. 4 at p. 2). The child was observed to engage in parallel play, and it was reported that transitions were difficult for him (id.).
A March 31, 2006 SEIT progress report stated that the child made gains in his ability to follow more complex directions, talk about items in their absence, request desired items, play independently, and label items by their function, feature or category, but he continued to display significant delays in his receptive and expressive language, cognitive, motor, self-help and social-emotional domains (Dist. Ex. 3). The SEIT recommended in the report that the child continue to receive SEIT services for 24 hours per week (id.).
A Committee on Special Education (CSE) meeting to develop the child's individualized education program (IEP) was scheduled for May 22, 2006 (Parent Ex. G). The day before the meeting, respondent's school social worker called petitioners and advised them that the child's file did not contain the service providers' progress reports (Tr. p. 350). Petitioners provided the documents to the CSE prior to the meeting (id.). Attendees at the May 22, 2006 CSE meeting included the parents, an additional parent member, respondent's district representative (who also participated as the school psychologist), respondent's social worker, respondent's special education teacher, and the child's SEIT, who participated by telephone (Parent Ex. I at p. 2).1 There was no regular education teacher in attendance as a member of the CSE.
Respondent's May 2006 CSE determined that the child was eligible for special education services as a student with autism (Parent Ex. I at p. 1). The CSE recommended that the child be placed in a self-contained 6:1+1 special education class located within one of respondent's specialized schools (Parent Ex. I at p. 2). The CSE also recommended a change in the duration and frequency of related services that the child should receive (id.). Specifically, the CSE recommended that the child receive speech-language therapy six times a week for 30 minutes per session, occupational therapy four times a week for 30 minutes per session, and physical therapy two times a week for 30 minutes per session (id.). The CSE further recommended the termination of services by the assigned 1:1 behavior management paraprofessional (id.). The IEP also indicated that the CSE considered placing the child in a self-contained special education class in a community school, but determined the class was "far to (sic) inadequate to address [the child's] linguistic, social, emotional, and pre-K skills" (Parent Ex. I at p. 13).
As a reason for recommending that the child not participate in the general education environment, the IEP indicated that "global delays preclude participation in general education setting" (Parent Ex. I at p. 12). The IEP also included a page titled "Behavior Intervention Plan” (BIP), which noted that a BIP would be developed, as well as page titled "Functional Behavior Assessment" (FBA) (Parent Ex. I at pp. 16, 17).
On or about June 22, 2006, petitioners submitted a due process complaint notice requesting an impartial hearing and asserting that respondent failed to offer the child a free appropriate public education (FAPE) based on procedural and substantive grounds (Parent Ex. A). Specifically, petitioners asserted that a) the CSE did not consider general education with support services for the child as a placement option; b) the CSE did not consider the child's inclusion in a general education environment for all non-academic activities; c) respondent failed to include a regular education teacher at the CSE meeting; d) the CSE did not address the child's physical deficits in the Health/Physical Management Needs portion of the IEP; e) the IEP recommended a reduction in frequency and duration of all related services without the appropriate clinical material to document such changes; and f) the child is entitled under all applicable laws to remain in his current placement during the pendency of the appeal since petitioners have not agreed otherwise (Parent Ex. A at p. 2).
The due process hearing started on August 22, 2006; however, due to witness unavailability, it was postponed. At that time, petitioners requested that in the interim the impartial hearing officer make a determination that during the pendency of the due process hearing the child continue to receive his services as stated in the October 17, 2005 IEP (Tr. p.7). The impartial hearing officer denied petitioners' request, and petitioners appealed the denial. That appeal, Application of a Child with A Disability, Appeal No. 06-105, was subsequently withdrawn on October 20, 2006 as a result of a settlement agreement between the parties as to pendency.
The due process hearing resumed with testimony occurring on September 19, 26, and 27, 2006. At the hearing, a SEIT testified that she provided SEIT services to the child at home for four or five hours per week and at the preschool every day for a total of six hours per week (Tr. p. 36). The SEIT also stated that she telephonically participated at the CSE meeting for about 20 minutes, during which time she did not assist in the development of goals for the IEP (Tr. p. 46). She stated that she had no access to the evaluations that the CSE was reviewing, that evaluations and a reduction of services were not discussed with her, and that she was not asked to assist in the proposal of any goals for the child (Tr. pp. 46-50).
Respondent's school psychologist testified that had he known that at the time of the CSE meeting the child was in a general education environment, he would have considered including a regular education teacher as part of the CSE (Tr. pp. 174-75). He stated that if he had known that the child attended an integrated environment, he would have been "surprised" because "[the child] has marked difficulty" as well as "aggression and biting behavior" (Tr. p. 170). He also stated that the CSE did not consider a general education placement (Tr. p. 173).
Respondent's assistant principal for P.S. 138 testified that at the May 22, 2006 CSE meeting, she had no knowledge that the child had attended integrated programs (Tr. p. 231). She further testified that had she known that the child attended an integrated preschool program, she would have discussed this with the parent (Tr. pp. 232, 235). Respondent's social worker, who also was part of the May 22, 2006 CSE, testified that he was unaware that the child had attended integrated preschool settings (Tr. p. 328).
Respondent's special education teacher, who was part of the May 22, 2006 CSE meeting, testified that she knew that at the time of the CSE meeting the child was attending Barrow, that it was an integrated program, and that she understood that to mean a general education program (Tr. p. 288).
The child's father testified that his son had always attended an integrated preschool setting, and that his CPSE services were always delivered both at home and in the preschools (Tr. p. 337). He also testified that at the CSE meeting there was no discussion of a possible general education placement or inclusion program, or of the availability of special education teacher support services (SETSS), or goals and objectives (Tr. pp. 357-60).
The impartial hearing officer rendered her decision on October 23, 2006. She determined that respondent offered the child a FAPE in the least restrictive environment (LRE), and that the recommended special education and related services were designed to meet the child's unique needs. She further found that the child's IEP was developed through a collaborative process between petitioners and respondent. She found that the services selected by petitioners were not appropriate because they were merely a continuation of the preschool services that the child had already received, and that the child was no longer eligible to receive them because of his age. The impartial hearing officer determined that a regular education teacher was not required at the May 22, 2006 CSE meeting because respondent never provided general education services to the child.
On appeal petitioners assert that the impartial hearing officer erred when she determined that a) respondent offered to provide petitioners' son a FAPE based upon respondent predetermining the child's placement; b) a general education teacher was not required to attend the May 22, 2006 CSE meeting; and c) respondent's proposed placement for petitioners' son was in the LRE. They also assert that the impartial hearing officer erred in not giving proper credence to the "uncontroverted" testimony of all of petitioners' witnesses.
Petitioners request that a State Review Officer find that a) the impartial hearing officer's failure to make a pendency determination resulted in unnecessarily delaying the proceedings; b) the child's pendency during the course of the proceedings is the last agreed upon placement as specified in his October 17, 2005 IEP; and c) respondent failed to offer a FAPE. Petitioners request an order that respondent reimburse them for the costs of the services they incurred in unilaterally continuing the services delineated in their son's October 17, 2005 IEP.
Respondent asserts that the impartial hearing officer did not err when she a) determined that a general education teacher was not required at the May 22, 2006 CSE meeting because respondent previously had not been providing general education to the child; b) determined that the recommended placement and services were appropriate; and c) denied petitioners' request for reimbursement.
A central purpose of the Individuals with Disabilities Education Act (IDEA)2 is to ensure that students with disabilities have available to them a FAPE3 (20 U.S.C. § 1400[d][A]; seeSchaffer v. Weast, 126 S. Ct. 528, 531 ; Bd. of Educ. v. Rowley, 458 U.S.176, 179-81, 200-01 ; 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[D]; 34 C.F.R. § 300.17;4 see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[a]). The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer, 126 S. Ct. at 532, 537 [finding it improper under the IDEA to assume that every IEP is invalid until the school district demonstrates that it is not]).
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 parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 ; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ). 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" (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412 [a][C][ii]).
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 v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). 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]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). 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][E][ii]; see 34 C.F.R. § 300.513[a]; Matrejek v. Brewster Cent. School Dist., 2007 WL 210093, at *2 [S.D.N.Y. Jan. 9, 2007]). 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][E][iii]).
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 a Child with a Disability, Appeal No. 07-008, 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).
The IDEA "expresses a strong preference for children with disabilities to be educated 'to the maximum extent appropriate,' together with their non-disabled peers." (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]). A FAPE must be provided to a child with disabilities in the "least restrictive setting consistent with the child's needs" (see Perricelli, 2007 WL 465211 at *1, citing Walczak, 142 F.3d at 122). In addition, federal and state regulations require that districts ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services (34 C.F.R. § 300.115[a]; see 8 NYCRR 200.6[a]).
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][A]; see 34 C.F.R. §§ 300.114[a][i], 300.116[a]; 8 NYCRR 200.6[a]; 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]; see Application of a Child with a Disability, Appeal No. 06-136). 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]; 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; seeOberti, 995 F.2d at 1215; Warton v. New Fairfield Bd. of Educ., 217 F. Supp. 2d 261, 273 [D.Conn. 2002]; A.S. v. Norwalk, 183 F. Supp. 2d 534, 542 n.8 [D.Conn. 2002]; Mavis, 839 F. Supp. at 982). In determining whether a student with a disability can be educated satisfactorily in a regular class with supplemental aids and services, several factors should be considered, including: "(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 Mavis, 839 F. Supp. at 987-92). 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]).
Petitioners assert that the impartial hearing officer's decision is inconsistent with the LRE requirements of the IDEA. The record shows that progress reports prepared prior to the May 22, 2006 CSE meeting indicate that the child made progress in a regular education setting while receiving SEIT and related services (Dist. Exs. 3, 5, 6, 7, 8, 9, 10; Parent Exs. C, D, E, F). The record also shows that the March 28, 2006 observation at Barrow revealed that during the entire period of the observation the child displayed no tantrums or other inappropriate behavior, other than one "whine" when he was told to choose between using markers or playing with a puzzle (Dist. Ex. 4 at p. 1). However, the May 22, 2006 CSE did not consider a general education environment placement (Parent Ex. I at p. 7). The May 22, 2006 IEP indicates that only two options were considered for a possible placement for the child: a special education class in a community school or a special education class in a special education school (Parent Ex. I at pp. 1, 8). Moreover, as noted above, respondent's assistant principal testified that had she known that the child was in an inclusive preschool setting, she would have pursued discussions involving an inclusive program for petitioners' child (Tr. p. 235).
The SEIT testified that she was not asked to propose or assist in the development of the child's goals at the May 22, 2006 CSE meeting. She also stated that she did not have knowledge of the documentation the CSE was relying on in making its determinations, and she did not participate in the discussion or decision to reduce the child's related services. Moreover, none of the evaluations were discussed with her and she was not asked to provide any data concerning the child's testing or academic levels (Tr. pp. 46-50). The child's father testified that at the CSE meeting there was no discussion about a possible general education placement, an inclusion program, or the availability of SETSS (Tr. pp. 357-60).
At the time of the May 22, 2006 CSE meeting the child was in a regular education setting and was making progress with the use of supplementary aids and services. I find that the CSE failed to consider whether the child could be satisfactorily educated in a regular education environment with the use of supplementary aids and services, and that the CSE failed to consider the continuum of alternative placements and services in making its recommendation for the 2006-07 school year.
Petitioners also assert that the impartial hearing officer erred in finding that a regular education teacher was not required at the May 22, 2006 CSE meeting. The CSE must include "not less than one regular education teacher of the child (if the child is, or may be, participating in the regular education environment)" (20 U.S.C. § 1414[d][B][ii]; see 34 C.F.R. § 300.321[a]; see also 8 NYCRR 200.3[a][ii]). The regular education teacher "shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate positive behavioral interventions and supports and other strategies and supplementary aids and services, program modifications, and support for school personnel (20 U.S.C. § 1414[d][C]; see 34 C.F.R. § 300.324[a]; 8 NYCRR 200.3[d]).
The record shows that when the CSE met in May 2006, the child was attending preschool in a regular education environment (Tr. pp. 346-47). Respondent's special education teacher, who participated in the May 22, 2006 CSE meeting, testified that she knew at the time of the CSE meeting that the child was attending Barrow, that it was an integrated program, and that she understood that to mean a general education program (Tr. p. 288). Respondent's CSE chairperson admitted that had he known that petitioners' son was attending a regular education preschool, he certainly would have ensured that a general education teacher was present at the May 22, 2006 CSE meeting (Tr. p. 174). The record further shows that no regular education teacher was present at the May 2006 CSE meeting (Parent Ex. I at p. 2). Given the circumstances of this case, the CSE should have included at least one regular education teacher of the child. A regular education teacher would have been able to contribute to discussions with petitioners and other CSE members about the supplementary aids and services, program modifications, curricular modifications, and school personnel support that were available and would have been appropriate to ensure the child's involvement in the general curriculum and participation in the regular education environment to the maximum extent appropriate.
Based on the above, I find that respondent failed to offer a FAPE to the child for the 2006-07 school year.
Having determined the first criterion for an award of reimbursement, I now turn to the second criterion of the Burlington/Carter analysis. In addressing this criterion, I note that on appeal petitioners assert no claim for reimbursement for services that were privately obtained and for which they expended out of pocket funds. Nor does the petition claim that they obtained services at their own expense that were appropriate to meet the student's special education needs. Therefore, the petition in this case fails to state a claim for reimbursement (8 NYCRR 279.4[a]); Application of a Child with a Disability, Appeal No. 06-096). While petitioners request reimbursement in their ad damnum clause, they do not set out a sufficient legal basis for such reimbursement. As such, I find that I cannot order reimbursement for services when petitioners have not asserted that the services were appropriate or that reimbursement was improperly denied.
Lastly, the evidence at the impartial does not demonstrate that petitioners' met their burden of persuasion to show that they are entitled to reimbursement. The hearing record shows that while petitioners seek a continuation of SEIT services and related services, it does not show that petitioners actually obtained services at private expense for which they are entitled to reimbursement.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the impartial hearing officer's decision is annulled only to the extent that she determined that respondent offered to provide a free appropriate public education to petitioners' son; and
IT IS FURTHER ORDERED that, unless the parties otherwise agree, that within 30 days of the date of this decision respondent's CSE shall reconvene and develop a new IEP for petitioners' son consistent with this decision.
1 Both parties submitted similar copies of the May 22, 2006 IEP into evidence. Petitioners' copy (Exhibit I) contains 17 pages, with page I-17 labeled "Functional Behavioral Assessment." Respondent's copy (Dist. Ex. 2) does not contain this page. Therefore, citations to the May 22, 2006 IEP will be to Parent Ex. I.
2 On December, 3, 2004, Congress amended the IDEA, and the amendments became effective on July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004), Pub. L. No. 108-446, 118 Stat. 2647). As the relevant events in the instant appeal took place after the effective date of the 2004 amendments, the provisions of IDEA 2004 apply and the citations contained in this decision are to the newly amended statute.
3 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.
4 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.