05-023

            Petitioner, the Board of Education of the Gates-Chili Central School District, appeals from the decision of an impartial hearing officer which determined that petitioner failed to offer to provide a free appropriate public education (FAPE) to respondents' son for the 2004-05 school year.  Respondents cross-appeal from those parts of the impartial hearing officer's decision which denied their requests for: 1) an audiological evaluation; 2) a functional behavioral assessment (FBA); 3) a finding on the appropriateness of petitioner's recommendation for adapted physical education (APE); and 4) a finding that placement at petitioner's Neil Armstrong Elementary School (Armstrong) was appropriate for their son.  The appeal must be dismissed.  The cross-appeal must be sustained in part.

            Initially, a procedural matter must be addressed.  Petitioner has submitted a reply to respondents' answer and cross-appeal. Pursuant to the Regulations of the Commissioner of Education, a reply is limited to any procedural defenses interposed by respondent or to documentary evidence included with the answer (8 NYCRR 279.6).   A reply may not be used to generally respond to each of the allegations made in the answer, as petitioner has attempted to do (Application of a Child with a Disability, Appeal No. 04-002; Application of a Child with a Disability, Appeal No. 95-28).  Accordingly, petitioner's reply will be considered for the limited purpose of answering the cross-appeal (Application of a Child with a Disability, Appeal No. 04-064; Application of a Child with a Disability, Appeal No. 04-002; Application of a Child with a Disability, Appeal No. 95-28).  

            At the time of the hearing, which was held in December 2002, respondents' son was five years old and was attending Stepping Stones Learning Center (Stepping Stones) in accordance with an individualized education program (IEP) dated May 29, 2003, as his pendency placement (Dist. Ex. 27).

           The child was placed in a 10:1+1 inclusion preschool classroom for the 2003-04 school year (Dist. Exs. 27, 31).  Petitioner's Committee on Preschool Special Education (CPSE) recommended attendance for five half-days per week at Stepping Stones and the related services of individual occupational therapy (OT) twice per week for 30 minutes, group OT once per week for 30 minutes, group speech-language therapy five times per week for 30 minutes, and music therapy twice per week for 30 minutes (Dist. Exs. 27, 31).  Petitioner's CPSE also recommended a 1:1 aide (id.).  In addition to his classroom program, respondents' son received applied behavioral analysis (ABA) in the home, which included:  speech-language therapy four times per week for one hour, special education itinerant teacher (SEIT) services six times per week for one hour, paraprofessional services ten times per week for one hour, and psychological services once per week for 30 minutes (id.).  The child has been classified as a preschool student with a disability (Dist. Exs. 2, 27).  The child has been diagnosed as having autism and developmental delays (Dist. Ex. 16).  The child was scheduled to transition from the CPSE to the Committee on Special Education (CSE) for the 2004-05 school year. 

           For the 2004-05 school year, petitioner's CSE determined that the child remained eligible for special education as a student with autism (Dist. Ex. 47; 8 NYCRR 200.1[zz][1]).  The CSE recommended placement in a Board of Cooperative Educational Services (BOCES) program in a 6:1+1 self-contained special education classroom (BOCES #1) five times per week for five and one-half hours per day (id.).  The committee recommended a full-time 1:1 aide, consultation with an autism specialist five times per month for one hour, consultation with the Center for Autism and Related Disorders (CARD),¹ 50 times per year for one hour and monthly staff training by CARD for one hour (id.).  Petitioner's CSE also recommended the related services of group music therapy twice per week for 30 minutes, group OT twice per week for 30 minutes, and individual speech-language therapy five times per week for 30 minutes (id.).  The child's recommended classification, needs, goals and objectives, and related services as described on the IEP dated August 23, 2004 (2004-05 IEP) are not in dispute (Tr. pp. 60, 142, 694-95; Dist. Ex. 47).  Respondents object to their son's recommended placement in the BOCES #1 program and have requested that he attend Armstrong or another in-district elementary school (Dist. Ex. 48; Amended Answer pp. 19, 20).

          The 2004-05 IEP describes the child as having significant delays in sensory processing, adaptive behavior, and speech-language skills (Dist. Ex. 47).  He was described as a visual learner who learns best when tasks can be modeled for him, and when provided with individual ABA instruction paired with the opportunity to generalize skills in a small group.  The 2004-05 IEP also indicated that the child has severe delays in receptive and expressive language and articulation skills.  He can identify all the letters of the alphabet and can rote count to 20.  He can identify cards with simple sight words and pictures.  He can recognize his name in print and verbally spell it out.  The child is in the beginning stages of letter formation and requires an adult to help him grasp a writing instrument (Dist. Ex. 47).

          Respondents' son does not consistently respond to his name and requires a substantial amount of motivation and reinforcement to stay focused in the learning environment (Dist. Ex. 47).  He can follow verbal directions when paired with gestures or modeling (id.).  According to the 2004-05 IEP, the child engages in self-stimulatory behaviors which include repeating sounds and phrases, hand-flapping, and jumping up and down (id.)  The IEP contained the recommendations of redirection and physical prompting to avoid self-stimulation during transitions and class time (id.).  The child requires adult support to participate in a game or lesson (Dist. Ex. 47).  He is unable to choose peers for a small game activity, requiring assistance with other children's names, asking questions, and taking turns (id.).  When receiving services at home, he sometimes requires prompting to greet his service providers (id.).  The child was described as active and as enjoying gross motor activities.  He demonstrates difficulty with postural control and bilateral use of his body.  Sensory processing and fine motor delays, including grasp and visual motor integration were also noted in the 2004-05 IEP (id.).  The child demonstrates a significant delay in self-help skills.  He is able to use the bathroom independently, but requires prompting and assistance with dressing (Dist. Ex. 47).

         Respondents were not in agreement with the placement recommended by petitioner's CSE on August 23, 2004, and requested an impartial hearing on August 24, 2004 (Dist. Ex. 48).

         The impartial hearing began on December 2, 2004.  Testimony was heard for four days and concluded on December 10, 2004.  The impartial hearing officer rendered his decision on January 31, 2005, finding petitioner in violation of the procedural requirements of the Individuals with Disabilities Education Act (IDEA), Article 89 of the New York State Education Law, and their respective implementing regulations, including improper CSE composition, inadequate physical/social history, failure of petitioner to notify respondents that no further evaluations were necessary or of their right to an assessment, untimely Board of Education approval of the IEP recommendations (IHO Decision, pp. 35-42).  The impartial hearing officer further found that the cumulative effect of these procedural violations resulted in a denial of a FAPE to the child for the 2004-05 school year (IHO Decision, pp. 41-42).  The impartial hearing officer then considered the appropriateness of the CSE's recommendations and found that the BOCES # 1 program "would be appropriate if the staff were to agree to make sure that [the child] gets real exposure to typically developing peers, especially to generalize skills" (IHO Decision, p. 45).  The impartial hearing officer also considered the appropriateness of an in-district elementary school, as requested by respondents, and concluded:  "the evidence does not support [the child] being maintained in a regular education class at Armstrong" (IHO Decision, pp. 43-44).  The impartial hearing officer also stated that respondents did not present any evidence to explain how "an integrated classroom could be satisfactorily established at Armstrong" (IHO Decision, p. 45).  The impartial hearing officer ordered petitioner to reconvene its CSE and write an IEP that complies with the procedural and substantive requirements of federal and state law and includes:  a social history, physical examination, a highly structured program with a limited amount of students and run by staff well-trained in working with autism, opportunities for exposure with typically developing peers, a strong ABA component, an integration plan, a transition plan, parent counseling and training, and an "analysis of the propriety of the selected physical education program" (IHO Decision, pp. 46-47). 

            In this appeal, petitioner alleges that it did not violate the procedural requirements of federal and state law and that the impartial hearing officer should have ordered the child to be placed in the recommended program after finding "in essence" that petitioner's recommended program and placement were appropriate  (Pet. ¶¶ 2, 65-73).  Petitioner contends that it offered a substantively appropriate program for the 2004-05 school year (Pet. ¶¶ 35-52), and that placement at respondents' choices of either Stepping Stones or Armstrong is inappropriate (Pet. ¶¶ 53-64). Petitioner requests that the State Review Officer find 1) that the impartial hearing officer erred in finding procedural errors denied the child a FAPE for the 2004-05 school year; ²) petitioner offered an appropriate program to respondents' son; and 3) order that the child attend the BOCES #1 program recommended by its CSE on August 23, 2004 (Pet. p. 20). 

            In their amended answer and cross-appeal, respondents appeal from those portions of the impartial hearing officer's decision which 1) misapprehended the parents' argument regarding the attendance of petitioner's school psychologist at the CSE meeting; 2) found an FBA, behavioral intervention plan (BIP), and audiological evaluation were not required; 3) determined there was insufficient evidence to make a determination about the appropriateness of a FAPE; and 4) determined Armstrong to be an inappropriate program and placement for their son (Amended Answer ¶ 28).  Respondents request that the State Review Officer order petitioner to 1) obtain an audiological evaluation and FBA; 2) plan for the child's enrollment at Armstrong or another elementary school within the district; 3) contract with CARD or another provider to begin comprehensive personnel development immediately in autism and ABA; and 4) develop a transition plan and an IEP that conforms with statutory and regulatory requirements (Amended Answer pp. 19-20).  As to respondents' third request, that issue is not properly before me because it was not raised before the impartial hearing officer, as such I do not review it (see Application of a Child with a Disability, Appeal No. 04-019, Application of a Child with a Disability, Appeal No. 03-095; Application of a Child with a Disability, Appeal No. 02-024, Application of a Child with a Disability, Appeal No. 01-024; Application of a Child with a Disability, Appeal No. 99-060).

            The purpose of the IDEA is to ensure that children with disabilities are provided a FAPE (20 U.S.C. § 1400[d][1][A]; see Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2d Cir. 1987]).  A FAPE consists of specialized education and related services embodied in an IEP (34 C.F.R. § 300.13).  A board of education bears the burden or proving the appropriateness of its recommended program.  To meet this burden, a board of education must first show that it complied with the procedural requirements set forth in the IDEA, and also that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).  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 student's right to a FAPE has been affected when the procedural violation results in the loss of the student's educational opportunity or seriously infringes upon the parents' opportunity to participate in the development of the student's IEP (see Evans v. Bd. of Educ., 930 F. Supp. 83, 93-94 [S.D.N.Y. 1996]; W.A v. Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]; Application of the Bd. of Educ., Appeal No. 04-037; Application of a Child with a Disability, Appeal No. 02-092).  

           An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (20 U.S.C. § 1414[d]; Application of a Child with a Disability, Appeal No. 04-082; Application of a Child with a Disability, Appeal No. 02-092; Application of a Child with a Disability, Appeal No. 01-105).  Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also8 NYCRR 200.4[d][2][i]).  School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).

         An appropriate program is provided when school districts create an IEP that is tailored to meet the unique needs of each child with a disability and includes personalized educational services that are likely to produce progress rather than regression (Rowley, 458 U.S. at 181, 197; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 346  [5th Cir. 2000];Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379, 383 [2d Cir. 2003]; Sherman v. Mamaroneck Union Free Sch. Dist., 340 F.3d 87, 93 [2d Cir. 2003]; M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 2000]; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121 [2d Cir. 1997]; see also, E.S. v. Indep. Sch. Dist., 135 F.3d 566, 569 [8th Cir. 1998]; Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 247-48 [5th Cir. 1997]; Wall v. Mattituck-Cutchogue Sch. Dist., 945 F.Supp. 501, 511-12 [E.D.N.Y. 1996]; Application of a Child with a Disability, Appeal No. 04-101).  This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). 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. § 300.550[b]; 8 NYCRR 200.6[a][1]).

         Petitioner contends that the impartial hearing officer erred in finding that it violated the procedural requirements of the IDEA, and in finding that those violations resulted in a denial of a FAPE to the child for the 2004-05 school year.

         The impartial hearing officer determined that the August 23, 2004 CSE was improperly composed because it did not include a representative from the recommended BOCES #1 class.  The record supports the determination that petitioner did not have a representative from the BOCES #1 program at the August 23, 2004 CSE meeting (Dist. Ex. 46; Tr. pp. 67, 677).  Petitioner's director of special education and the department head for the ABA programming at Stepping Stones testified that they were familiar with the recommended program and placement and both attended the August 23, 2004 CSE meeting (Tr. pp. 248, 695). If a recommended placement is to be in a school other than the school district in which the student would normally attend if the student did not have a disability, the school district must ensure that a representative of that school attend the CSE meeting in which the IEP containing such recommendation is developed (8 NYCRR 200.4[d][4][i][a]; see 34 C.F.R. § 300.349[a][2]; Application of a Child with a Disability, Appeal No. 04-044; Application of a Child with a Disability, Appeal No. 04-043; Application of a Child with a Disability, Appeal No. 03-091; Application of a Child with a Disability, Appeal No. 03-046; Application of a Child with a Disability, Appeal No. 03-088; Application of the Bd. of Educ., Appeal No. 03-062). If a representative of the school cannot attend, the school district must use other methods to ensure participation by the school including individual or conference telephone calls (id.). 

         Petitioner concedes that a representative of BOCES did not participate in the CSE meeting, and petitioner has presented no evidence of its attempts to ensure participation of a representative of the BOCES #1 program by any methods.   

        Under these circumstances, the absence of a representative of the recommended program compromised the development of an appropriate IEP for respondents' son for the 2004-05 school year and seriously infringed upon respondents' participation in the creation of the IEP (Werner v. Clarkstown Cent. Sch. Dist., ___ F. Supp. 2d ___, 2005 WL 767878 at *3 [S.D.N.Y. Mar. 31, 2005]; Application of a Child with a Disability, Appeal No. 03-091; Application of a Child with a Disability, Appeal No. 03-088).  Had a representative of the BOCES #1 program been in attendance at that CSE meeting, respondents would have had a direct and appropriate opportunity for meaningful discussion to address their LRE placement and programming concerns and to discuss whether the BOCES #1 program would meet the child's individual needs (Application of the Bd. of Educ., Appeal No. 04-058).³

            The impartial hearing officer also found that petitioner's "constellation of procedural errors" resulted in a denial of a FAPE.            

            I agree with the impartial hearing officer's determination to the extent that he concluded: 1) that the CSE was not properly composed; 2) that the IEP did not include an adequate explanation of the extent to which the child would not participate in regular education programs (8 NYCRR 200.4[d][2][vii][a]); 3) that the IEP did not include transitional support services (8 NYCRR 200.13[a][6]); and 4) that the IEP did not provide for parent counseling and training for the purpose of enabling the parents to perform appropriate follow-up intervention activities at home (8 NYCRR 200.13[d]).  Taken together, I find that respondents' son was not offered a FAPE because of procedural violations in the formulation of the IEP, certain program services designed to meet the needs of this particular child were not provided for on the IEP, and the IEP did not adequately address LRE placement.

           I now turn to respondents' cross-appeal.  Respondents challenge the impartial hearing officer's finding that petitioner was not obligated to conduct an audiological evaluation (IHO Decision, p. 36) or an FBA (IHO Decision, pp. 40-41). 

           Respondents request an audiological evaluation (Amended Answer p. 19) and contend that their son requires an FBA to address his inattention and self-stimulatory behaviors (Amended Answer ¶ 98).  I agree with the impartial hearing officer's determination that an audiological evaluation was not required.   Respondents contend that their son requires an FBA to address his inattention and self-stimulatory behaviors (Amended Answer ¶ 98).  I agree with the impartial hearing officer's finding that an FBA would be premature because the child has not attended the recommended program and placement (IHO Decision, p. 41) (Application of a Child with a Disability, Appeal No. 04-033). 

          The impartial hearing officer also stated that the record is insufficient to make a determination regarding the propriety of recommending APE (IHO Decision, p. 40).   Respondents contend that the IEP provides for APE but does not indicate the extent to which their son would participate (Amended Answer ¶ 100).   APE consists of a specially designed program of developmental activities, games, sports and rhythms suited to the interests, capacities and limitations of students with disabilities who may not safely or successfully engage in unrestricted participation in the activities of the regular physical education program (8 NYCRR 200.1[b]).  The record reflects that petitioner recommended APE, but failed to explain "…the extent to which the student will participate in specially-designed instruction in physical education, including adapted physical education" as required by the Commissioner's Regulations (8 NYCRR 200.4[d][2][vii][c]).  I agree with respondents' contention relative to the appropriateness of APE.  Respondents have not requested any relief beyond reversing that part of the impartial hearing officer's decision, which determined that there was insufficient information to make a decision regarding the appropriateness of APE.  As such, I will annul that portion of the impartial hearing officer's decision. 

          Lastly, respondents request that the impartial hearing officer's determination that Armstrong was not an appropriate program and placement for their son be annulled (Amended Answer p. 19).  I agree with the impartial hearing officer that the needs of the child cannot be addressed in a regular education classroom at Armstrong (IHO Decision, pp. 44-45).  Furthermore, I agree that there was insufficient evidence presented at the impartial hearing to indicate that an integrated classroom could be established at Armstrong (IHO Decision, p. 45).  Petitioner also asserts that Stepping Stones and Armstrong are not appropriate (Pet. ¶¶ 53-64).  Inasmuch as the impartial hearing officer concluded that a regular education program would be inappropriate for the child, I find that petitioner has not been aggrieved by that part of the impartial hearing officer's decision (8 NYCRR 200.5[j][1]; Application of the Bd. of Educ., Appeal No. 04-016).

          I have considered petitioner's remaining contentions and I find them to be without merit.

          I have considered respondents' contentions that 1) the impartial hearing officer's analysis and conclusions relative to the LRE must be annulled (Amended Answer ¶ 28); and 2) that the Board of Education did not approve the CSE's recommendations in a timely manner (Amended Answer ¶101).  As to the first contention, I find it to be without merit.  As to the second contention, I find that respondents were not aggrieved by the impartial hearing officer's decision (8 NYCRR 200.5[j][1]; Application of the Bd. of Educ., Appeal No. 04-016).  I have also considered respondents’ remaining contentions and I find them to be without merit.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the impartial hearing officer is annulled to the extent it found there was insufficient evidence to determine the propriety of petitioner's recommendation for adapted physical education.