05-066

            Petitioners appeal from the decision of an impartial hearing officer which found that respondent provided their son a free appropriate public education (FAPE) during the summer of 2004 and the 2004-05 school year.  The appeal must be dismissed.

            Respondent asserts as an affirmative defense in its answer that the petition for review was served in an untimely manner.  A petition for review by a State Review Officer must comply with the timelines specified in section 279.2 of the Regulations of the Commissioner of Education (8 NYCRR 279.13).  The petition for review must be served upon the respondent within 35 days from the date of the decision sought to be reviewed (8 NYCRR 279.2[b]).  If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the period (id.).  A State Review Officer, in his or her sole discretion, may excuse a failure to timely seek review within the time specified for good cause shown (8 NYCRR 279.13).  The good cause for the failure to timely seek review must be set forth in the petition (id.).

             Petitioners do not set forth in their petition good cause for their delay in service of the petition for review upon respondent.  The impartial hearing officer’s decision is dated May 30, 2005 (IHO Decision, p. 38) and was sent electronically to the parties on June 2, 2005 (see Resp. Memo. of Law Ex. A).  Petitioners served the petition for review upon respondent on July 8, 2005 (seePetitioner's Aff. of Service sworn to July 8, 2005). In a reply affirmation, petitioners do not assert good cause for the delay in service and assert that the “only date” they “agree to recognize” for the decision is June 3, 2005, the date the decision was opened electronically by petitioners.¹ Petitioners assert that the decision was timely served within 35 days of June 3, 2005.²  I am not persuaded by petitioners’ argument. The petition for review should have been served no later than July 5, 2005, thirty-five days from the May 30, 2005 date of the impartial hearing officer’s decision. Under the circumstances presented here, petitioners did not timely serve the petition for review upon respondent and did not show good cause for the delay.  The petition is, therefore, dismissed as untimely served (Application of a Child with a Disability, Appeal No. 05-048; Application of a Child with a Disability, Appeal No. 04-103; Application of a Child with a Disability, Appeal No. 04-067; Application of a Child with a Disability, Appeal No. 03-109; Application of a Child with a Disability, Appeal No. 02-096).

            Although I will dismiss the petition for review as untimely, I have reviewed the merits of petitioners’ appeal and I concur with the impartial hearing officer’s determination to dismiss petitioners’ claims below. 

            The student is 12 years old and is eligible for special education program and services as a student with an other health impairment (OHI) (Dist. Ex. 1; see 8 NYCRR 200.1[zz][10]).  The student’s classification is not in dispute.  His educational history through the 2002-03 school year is set forth in Application of a Child with a Disability, Appeal No. 04-021, which in turn, is repeated in the decision of the impartial hearing officer (IHO Decision, pp. 2-5).  It will not be repeated here in detail but a general education overview will be provided.  

            The student was diagnosed as having an attention deficit hyperactivity disorder (ADHD) while attending a therapeutic preschool, and received occupational therapy (OT) and physical therapy (PT) in kindergarten during the 1998-99 school year (Dist. Ex. 2 at p. 1, Dist. Ex. 12 at P-N).  He repeated first grade in 2000-01 and in October of that school year a functional behavioral assessment (FBA) was completed and a behavioral intervention plan (BIP) was developed to address the student's difficulty in complying with directions when he was participating in a group activity (Dist. Ex. 2 at p. 2, Dist. Ex. 12 at P-S).  During the 2001-02 school year, the student was placed in an integrated second grade class and received related services of OT and adapted physical education (Dist. Ex. 2 at p. 2).   For third grade, during the 2002-03 school year, the student was again placed in an integrated class, where he received both direct and indirect consultant teacher services, as well as resource room, adapted physical education and OT (Dist. Ex. 12 at P-Y).

             In March 2003, when the student was in third grade, petitioners arranged for an evaluation by a private therapist, because their son was exhibiting increased behavior difficulties at home, including aggression and refusal to attend school (Dist. Ex. 2 at pp. 2-3).   The private evaluator recommended that the student be admitted to a day program at a psychiatric facility.  In April 2003 the student was placed in a partial hospitalization program at a psychiatric facility, where he received services during the school day (Dist. Ex. 2 at p. 3, Dist. Ex. 12 at SD-10).  A Committee on Special Education (CSE) convened for the student's annual review on April 10, 2003, while the student was hospitalized, but petitioners did not advise the committee of the student's hospital placement (Dist. Ex. 12, Apr. 10, 2003 IEP at pp. 2-3).  The April 10, 2003 CSE recommended extended school year (ESY) services of specialized reading instruction and individual OT for summer 2003 (Dist. Ex. 12, Apr. 10, 2003 IEP at p. 1).  For the 2003-04 school year, the CSE recommended placement in general education fourth grade classes accompanied by a one-to-one aide, indirect consultant teacher services once per week for 30 minutes, resource room services for 60-minute sessions five times per week, OT in a small group for 30-minute sessions twice per week and speech-language therapy in a small group for 30-minute sessions twice per week (id.).

             The student was discharged from the psychiatric facility on April 25, 2003 (Dist. Ex. 12 at SD-10).  In a letter dated May 6, 2003, the student's private therapist advised the CSE chairperson that, in addition to his diagnosis of ADHD, the student had been diagnosed as having Asperger's disorder (id.).  He recommended that the CSE change the student's classification to autism and revise his 2003-04 individualized education program (IEP) to include social skills goals and individual and group counseling to address the student's social and emotional needs arising from his Asperger's diagnosis (id.).

              The CSE reconvened on June 23, 2003 (Dist Ex. 12 at SD-2).  The student's private therapist participated in this CSE meeting by telephone, and the student's 2003-04 IEP was revised, incorporating the therapist's suggestions, which included identification of the student's Asperger's diagnosis, a description of his social/emotional needs and of situations which were likely to cause the student stress, social skills goals and objectives and the addition of counseling services to address social skills goals (id.).  The CSE did not recommend the addition of social skills training to the student's recommended ESY program in summer 2003 because it did not have evidence suggesting that the student was likely to experience substantial regression in social skills over the summer and the student's private therapist did not indicate that the student needed ESY services to prevent regression in social skills (Dist. Ex. 2 at p. 3).  The CSE did not change the student's classification from OHI to autism, and the record indicates that both the student's mother and his private therapist were in agreement that the student's classification need not be changed (Dist Ex. 12 at SD-2 p. 4).  The summer 2003 ESY services were the subject of Application of a Child with a Disability, Appeal No. 04-021.³

              The student reportedly made progress academically during the 2003-04 school year.  His fourth grade general education teacher reported that, after an initial period of adjustment in her classroom, the student participated in class discussions, was able to work with other students in small groups, was attempting to make friends, and was behaving like a "pretty typical fourth grader" (Tr. pp. 456-58).  The student's February 2004 New York State Testing Proficiency (NYSTP) English Language Arts (ELA) test score of 667 placed him at level three of the test rubric, indicating proficiency (Dist. Ex. 19) and his May 2004 NYSTP science score of 89 placed him at level four, indicating that he had met test standards "with distinction" (Dist Ex. 22).  The student's NYSTP math score of 706 also placed him at level 4, the highest level in the rubric for this state examination (Dist. Ex. 15).  The student's special education teacher reported that the student's performance on the ELA and math examinations was consistent with his classroom performance (Tr. pp. 205-06, 209-10).  An April 23, 2004 report of the student's progress on IEP goals and objectives indicated that the student had mastered nine objectives, had not yet begun work on one math objective, and had made progress on all remaining objectives (Dist. Ex. 13; Parent Ex. D).

              In addition to academic progress, the student's special education teacher reported that the student demonstrated "great social growth" in 2003-04, but in late March 2004, his behavior at school deteriorated to a marked degree, apparently in relation to dosage adjustments in the student's medication schedule (Tr. pp. 102, 218, 225, 458-60).  Classroom notes dated March 29, 2004 through April 16, 2004 describe inappropriate laughter, frequent out-of-seat behavior, cutting and ripping papers, pushing other students and failure to follow teacher directives (Parent Ex. E).  His general education teacher reported speaking to the student's mother about behavior changes the student began to exhibit at school after he returned from spring break, for which adjustments were made in the student's homework assignments (Tr. pp. 458-60).  The student's speech-language therapist reported that prior to spring 2004, the student was making progress on his speech-language goals and seldom exhibited inappropriate behavior, but after the 2004 spring break the student became more aggressive and defiant, his ability to maintain eye contact deteriorated, and he was unable to engage in conversations during speech-language therapy sessions (Tr. pp. 394-95, 402, 425-26, 434-35, 458). 

               A subcommittee of the CSE convened on May 10, 2004 for the student's annual review to prepare the student’s IEP for the 2004-05 school year (Dist. Ex. 1 at p. 5, Dist. Ex. 21).  The student's private therapist attended the meeting (Dist. Ex. 1 at p. 1).  Staff who had worked with the student in 2003-04 reported that the student had made "significant progress in all academic and related services areas" prior to difficulties related to medication adjustments at the end of March 2004 (Dist. Ex. 1 at p. 5).   His special education teacher reported that the student was able to comprehend concepts in all subject areas, learned best with direct auditory instruction, showed strengths in math and scientific reasoning, but had difficulty with recall of math facts (Dist. Ex. 5).  The student's reading comprehension was described as good and his sight vocabulary was described as reasonable (id.).  His teacher noted that the student had difficulty with decoding and rapid word naming, which affected fluency (id.).  His written expression was reported to be affected by weaknesses in spelling and in motor planning, but the student was reportedly able to understand elements of constructing a written response, dictate to a scribe and proof read for capitalization, punctuation and spelling (id.).  The student's speech-language therapist reported progress in following multi-step directions containing linguistic concepts and multiple meaning words as well as improvement in pragmatic language during the first half of the year, with the student initiating conversations with peers and participating in turn-taking activities (Dist. Ex. 6).  The school psychologist who provided push-in counseling services to the student in 2003-04 reported that the student initially demonstrated resistance to counseling through greater distractibility and increased ripping and chewing paper, but eventually became more accepting of the counselor's presence (Dist. Ex. 7).  The school psychologist also reported that the student's progress was enhanced by daily strategies implemented by his teacher and aide, and that the student's social skills and his acceptance by peers improved steadily prior to difficulties at the end of March (id.).  The school psychologist recommended an increase in counseling to twice per week with the second session to be an indirect service working with classroom teacher and aide (id.). 

               While the May 10, 2004 CSE subcommittee meeting was in progress, the student’s mother attempted, unsuccessfully, to contact her attorney by telephone (Dist. Ex. 26, audiotape).  At the end of the meeting, after the subcommittee had completed the student's IEP for 2004-05, including ESY 2004, the student’s mother was able to contact her attorney, who participated in the end of the meeting via speaker phone (Dist. Ex. 26, audiotape).  Petitioners’ attorney advised the CSE subcommittee that her client would reject the recommendations and pursue summer placement at Ramapo Anchorage Camp (Ramapo) through due process proceedings (Dist. Ex. 26).  However, since the student’s mother and the student's private therapist had agreed with all other CSE subcommittee recommendations with the exception of recommendations for summer 2004, an agreement was eventually reached which allowed for implementation of the May 10, 2004 IEP for the school year beginning in September 2004 (Dist. Ex. 26; Tr. pp. 61-62, 67, 659).

               For the 2004-05 school year, the CSE recommended ESY services of one-to-one specialized reading instruction five times per week for 40-minute sessions and one-to-one counseling once per week for 30-minute sessions for summer 2004 (Dist. Ex. 1 at p. 1).  For the 2004-05 school year, the CSE recommended placement in a general education fifth grade for all content courses except math, for which the student would be placed in a 12:1+1 self-contained class in order to provide him with more individualized instruction (Tr. p. 270).  The CSE also recommended resource room services five times per week, 45-minute sessions, a one-to-one aide in all settings, group speech-language therapy twice per week for 30-minute sessions, counseling once per week for 30 minutes in a group and counseling consultation as an indirect service once per week for 30 minutes, and an individual OT consultation once per week for 30 minutes (Dist. Ex. 1 at p. 1).

               By letters dated June 16, 2004 and June 21, 2004, the student’s mother requested an impartial hearing, objecting to the student’s summer 2004 placement and alleging that respondent failed to properly place the student at Ramapo for the summer of 2004 (Parent Exs. A, B).  The student’s mother requested reimbursement for Ramapo and compensatory education for harm done to the student (Parent Ex. B).

               On June 18, 2004, the student was hospitalized in a residential program at the psychiatric facility at which he had received day program services in April 2003 (Dist. Ex. 27).  Hospital reports stated that at the time of admission, the student's parents reported an increase in oppositional behavior and irritability at home, physical aggression, destruction of household items, and increased difficulty falling asleep, but that "behavior at school has been good" (Dist. Ex. 28 at p. 3). 

               A final report of student progress on 2003-04 IEP goals and objectives sent to petitioners on June 24, 2004 indicated that the student mastered 33 of his IEP objectives and made some progress or satisfactory progress on all other objectives (Dist. Exs. 4, 14).  The student's fourth grade report card for 2003-04 included final grades of B- in reading, A- in communications, A+ in math, A in social studies, B+ in science and a C- in spelling (Dist. Ex. 3).

               The student was discharged from the psychiatric facility on July 3, 2004 (Dist. Ex. 28).  The student's discharge summary recommended consideration of a "structured and therapeutic day program" for the student (Dist. Ex. 28 at p. 9).  By letter to the impartial hearing officer dated July 8, 2004, counsel for the student’s mother objected to the 2004-05 IEP, stating that no one was trained in the student’s disability, that the student did not benefit from the program, that the program was not specific enough and did not meet the student’s needs and that the program was harmful to the student (Parent Ex. C).  On behalf of the student’s mother, counsel requested placement of the student in an out-of-district school for students with Asperger’s syndrome (id.).

                Respondent's summer program commenced on July 1, 2004, while the student was still hospitalized (Tr. p. 127).  As of that date, petitioners had not advised respondent if they intended to send the student to the ESY program or enroll him at Ramapo (Tr. p. 130).  The CSE chairperson spoke with the student’s mother on several occasions prior to the beginning of the ESY program, assuring her that services per the student's IEP could be provided (Tr. p. 127).  The CSE chairperson also offered to enroll the student in an all-day ESY program at the district 's high school (Tr. pp. 126-27).  Noting that the program at the high school included children who were more severely involved than petitioners’ son, the CSE chairperson indicated that the program operated from 8:30 a.m. to 2:30 p.m. and included reading, math, social studies and science instruction as well as field trips, a physical education program, and barbecues every Friday, and that the student could participate in these activities (Tr. pp. 127, 133).

               On July 8 or 9, 2004, the student’s mother contacted respondent's CSE chairperson, advised him that her son was to be discharged from the psychiatric facility, and asked if he could begin to receive ESY services on the following Monday, July 12, 2004 (Tr. pp. 127-28).  The CSE chairperson indicated that the student could begin services on the date requested (Tr. p. 128).  However, when he contacted the student's 2003-04 special education teacher, who was to provide the student's 2004 ESY specialized reading program, that teacher advised the CSE chairperson that she was no longer available to provide reading instruction (Tr. p. 128).  The special education teacher arranged to meet with the ESY special education classroom teacher to assist her with preparing for the student's arrival on the following Monday (Tr. p. 128). 

               The student's first four days in respondent's ESY program were marked by significant behavior difficulties, including running in the halls, jumping on tables and on top of vending machines, and running out of the building (Tr. pp. 128-29).  On the student's second day in attendance, the student’s mother contacted the CSE chairperson and requested a one-to-one aide for her son (Tr. p. 132).  Although a one-to-one aide had not been recommended for the student for summer 2004, arrangements were made immediately to hire a one-to-one aide, who began to work with the student one or two days after the mother’s request for this service and who remained with the student for the duration of the summer program (Tr. p. 132).   On Thursday of that same week, the student’s mother took her son back to his doctor to adjust his medication, after which the student's behavior stabilized and he was able to participate in ESY activities (Tr. p. 129).

                For the duration of the summer 2004 ESY program, the student received daily reading instruction in the classroom for a minimum of one hour per day (Tr. p. 299).  Beginning August 2, 2004, the student also received 45 minutes per day individual specialized reading instruction per his IEP (Tr. p. 299).  Because his fourth grade special education teacher was no longer available to provide this service, the student's summer school special education teacher volunteered, without additional compensation, to provide reading instruction each morning for 45 minutes before the school day began at 8:30 a.m. (Tr. pp. 299, 320).  Counseling services per the student's IEP were provided by respondent’s social worker, who arranged to provide extra counseling sessions to make up for the days the student was not in attendance, and who provided push-in services when the student resisted leaving the classroom (Tr. pp. 134, 343-44, 353).

                 Despite his late start and his behavioral difficulties, the student reportedly made progress in his summer 2004 program (Tr. p. 310).  His special education teacher reported that the student became more responsive and more socially appropriate (Tr. pp. 315, 326-27).  The social worker who provided counseling services reported that, at the end of summer, the student played games and interacted with other children, and appeared "more comfortable and more outgoing" (Tr. p. 351).

                 The impartial hearing in this case was held on 10 days between July 1, 2004 and March 18, 2005.  The impartial hearing officer, in a decision dated May 30, 2005, found that the May 10, 2004 IEP was “procedurally correct” and reasonably calculated to provide the student with educational benefits in the least restrictive environment (LRE) (IHO Decision, p. 33).  The impartial hearing officer also found that the CSE successfully managed the student’s behavior, that the May 10, 2004 IEP satisfied requirements concerning goals and objectives and that the parent was regularly informed of the student’s progress during the 2004-05 school year (IHO Decision, p. 34).  The impartial hearing officer found the IEP appropriate and found that the student was provided a FAPE during the summer 2004 and the 2004-05 school year and denied petitioners’ request for relief (IHO Decision, pp. 37-38).

                On appeal, petitioners assert: 1) that the student made limited progress during the 2003-04 school year, which establishes the unreasonableness of the similar 2004-05 school year program; 2) that a subcommittee of the CSE convened on May 10, 2004 and was without authority to make changes to the student’s placement; 3) that no objective evaluative data was before the CSE subcommittee on May 10, 2004; 4) that the level of service in the May 10, 2004 IEP was insufficient to address the student’s needs; 5) that the student failed to benefit from the education provided to him; 6) that there was no FBA or statement of present performance levels in the student’s areas of need; 7) that an individualized assessment of the student to measure the student’s progress on goals and objectives was not timely done; 8) that respondent did not regularly report the student’s progress to petitioners; and 9) that the student was denied a FAPE for 2004-05.  Petitioners request that the impartial hearing officer’s decision be annulled and request an order: 1) declaring that the level of services provided to the student during 2004-05 were inappropriate; and 2) directing the CSE to develop an IEP that offers more intensive academic and behavioral intervention, including but not limited to the placement of the student in specialized schools or programs run exclusively for students with Asperger’s syndrome.

                The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]).⁴  A FAPE consists of special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[8][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).  The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 04-043).

                To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). 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]), e.g., resulted in the loss of educational opportunity (Evans v. Bd. of Educ., 930 F. Supp.83, 93-94 [S.D.N.Y. 1996]), seriously infringed on the parents' opportunity to participate in the IEP formulation process (see W.A. v. Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D. K., 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002]).  As for the program itself, the Second Circuit has observed that '"for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]; see Walczak, 142 F.3d at 130).  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]).

            An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  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 also 8 NYCRR 200.4[d][2][i]).  School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).

             Petitioners contend that the student’s behavior problems persisted during the 2003-04 school year and that the student made limited progress during the 2003-04 school year, which establishes the unreasonableness of the similar 2004-05 school year program.  The record does not support these contentions.

             During spring 2004, the student began to exhibit increasingly frequent inappropriate behaviors related to adjustments in his medication (Dist. Ex. 7; Tr. pp. 101-02 509-10).  The student was oppositional, unable to sit and focus on schoolwork, and required considerable 1:1 support. (Dist Ex. 6).  The CSE met on May 10, 2004 to develop the student’s 2004-05 program.  Despite petitioners’ assertions otherwise, reports of the student’s overall performance in 2003-04 indicated that the student had made progress.  A May 10, 2004 progress report completed by the student's resource room teacher stated that the student was able to comprehend concepts in all subject areas, showed strengths in math and scientific reasoning, and demonstrated good reading comprehension (Dist. Ex. 5).  The resource room teacher also reported that the student's written expression was affected by weaknesses in spelling and motor planning, but he was able to demonstrate understanding of elements of constructing a written response, could dictate to a scribe and could proof read for capitalization, punctuation and spelling (Dist. Ex. 5).  A May 10, 2004 speech-language progress report noted the student's progress in following multi-step directions containing linguistic concepts and multiple meaning words as well as improvement in pragmatic language (Dist. Ex. 6).  The speech-language therapist reported that the student had begun initiating conversations with peers and participating in turn-taking activities (Dist. Ex. 6).  The school psychologist's May 10, 2004 report of progress towards achieving counseling goals stated that although medication changes in spring 2004 coincided with a decline in social functioning, the student's social skills and acceptance by peers had improved steadily in 2003-04 (Dist. Ex. 7).  A progress report on the student's IEP goals and objectives in 2003-04 noted that the student mastered 33 of his IEP objectives and made progress on all remaining objectives (Dist. Ex. 4).  The student's general education report card for 2003-04 reported final grades of B- in reading, A- in communications, A+ in math, A- in social studies, B+ in science and C- in spelling (Dist. Ex. 3).  On 2004 NYSTP testing, for which his test accommodations were implemented (Tr. pp. 205-06, 266), the student's February 4, 2004 score of 667 on the ELA examination placed him at level three, indicating proficiency and his May 12, 2004 score of 706 on the NYSTP math examination placed him at level four, which is the highest level within the test rubric (Dist. Ex. 15).

               Petitioners contend that the subcommittee of the CSE that convened on May 10, 2004 was without authority to place the student into a special education, self-contained math class.  Under New York State Education Law, boards of education outside of a city having a population in excess of 125,000 inhabitants, such as respondent's, may appoint subcommittees on special education to assist the board of education (N.Y. Educ. Law § 4402[1][b][1][d]; 8 NYCRR 200.3[c]).  Such subcommittees have the authority to perform the same functions as the CSE, with the exception of instances in which a student is considered for initial placement in a special class, or a student is considered for initial placement in a special class outside of the student's school of attendance, or whenever a student is considered for placement in a school primarily serving students with disabilities or a school outside of the student's district (N.Y. Educ. Law § 4402[1][b][1][d]; 8 NYCRR 200.3[c][4]).  The subcommittees are required to evaluate each child with a disability at least annually and report to the CSE (N.Y. Educ. Law § 4402[1][b][1][d]; 8 NYCRR 200.3[c][6]).  In addition, the subcommittee must immediately refer to the CSE, upon written request of the parent, any matter in which the parent disagrees with the subcommittee's recommendation concerning a modification or change in the identification, evaluation, educational placement, or provision of a FAPE to the student (N.Y. Educ. Law § 4402[1][b][1][d]; 8 NYCRR 200.3[c][5]).  Each subcommittee is required to include as members: the student's parents; one regular education teacher of the student (if the student is or may be participating in the regular education environment); one special education teacher of the student, or, if appropriate, a special education provider of the student; a representative of the school district involved in special education; an individual who can interpret evaluation results; such other persons having knowledge or special expertise regarding the student as the school district or parents shall designate; if appropriate, the student; and a school psychologist whenever a new psychological evaluation is being reviewed or a change to a more restrictive program is being considered; and such other persons having knowledge or special expertise regarding the student (N.Y. Educ. Law § 4402[1][b][1][d]; see N.Y. Educ. Law § 4402[1][b][1][a]; 8 NYCRR 200.3[c][2]). 

                The record indicates that the CSE subcommittee of May 10, 2004 consisted of the following individuals: the director of pupil personnel services (chairperson); the student’s mother; a regular education teacher; a special education teacher; a speech-language teacher; an ELA/AIS teacher; an occupational therapist; the special education supervisor; the school psychologist; the student’s psychologist; a family member; and petitioners’ counsel, who participated by telephone (Dist. Ex. 1).  But for the absence of an additional parent member of a student with a disability residing in the school district or in a neighboring school district, respondent’s May 10, 2004 CSE subcommittee would have been a duly comprised CSE under New York State regulations (8 NYCRR 200.3 [a][1], [c][2]). The subcommittee did improperly recommend the student’s initial placement into a special math class (N.Y. Educ. Law § 4402[1][b][1][d]; 8 NYCRR 200.3[c][4]).  Petitioners do not allege any denial of educational opportunity or benefits, or infringement on meaningful parental participation, as a result of the procedural violation.  The student’s mother was an active and informed participant at the subcommittee’s May 10, 2004 meeting and did not voice any specific objection to the math class recommendation during this meeting (Dist. Ex. 26).  Although technically the subcommittee should not have recommended the math class and should have referred the matter to a CSE, I find that in this instance the error did not deny the student a FAPE.  I do, however, caution respondent to ensure in the future that recommendations of its subcommittee comply with the requirements of 8 NYCRR 200.3[c][4].

            Petitioners’ contentions that there was no objective evaluative data before the CSE subcommittee’s annual review on May 10, 2004 and that an individualized assessment of the student to measure the student’s progress on goals and objectives was not timely done are also not supported by the record.  The subcommittee reviewed detailed progress reports prepared by the student's special education teacher (Dist. Ex. 5), his speech-language therapist (Dist. Ex. 6), and the school psychologist who provided the student with counseling services (Dist. Ex. 7).  These three individuals were present at the May 10, 2004 CSE subcommittee meeting to review the progress reports and provide additional information and clarification as needed  (Tr. pp. 222, 391, 552).  The student's fourth grade general education teacher was also present at the May 10, 2004 meeting and participated in discussion of the student's performance and reviewed the student's third quarter report card grades (Tr. pp. 150-53, 496-97).  In addition to these written and verbal progress reports, the CSE had access to the results of the Peabody Picture Vocabulary Test administered in April 2003, the Beery Visual-Motor Integration test and the Test of Auditory-Perceptual Skills-Revised, administered on March 24, 2003, the Clinical Evaluation of Language Fundamentals administered on March 18, 2003, the Wechsler Individual Achievement Test administered on February 26, 2003, and the Wide Range Assessment of Visual Motor Abilities administered on September 10, 2002 (Dist. Ex. 1 at p. 4).  The CSE subcommittee also had access to written recommendations from the student's private therapist (Dist. Ex. 8) who was also present at the May 10, 2004 meeting (Tr. p. 92).  The private therapist's recommendations were incorporated into the IEP (Tr. pp. 96, 116, 779-80).  The private therapist indicated that he was pleased that his recommendations were incorporated into the IEP and praised respondent’s staff for their sensitivity to the student's needs (Tr. pp. 93, 97-98).

              I have listened carefully to the audiotape recording of the May 10, 2004 CSE meeting and I find that neither the student's mother nor his private therapist objected to any aspect of the IEP as it was being developed (Dist. Ex. 26).  I also note that the student's special education teacher sent a draft of the proposed IEP to the student's mother one week before the annual review and telephoned the mother on the evening before the CSE meeting to discuss the draft, and that petitioner did not express disagreement at that time (Tr. pp. 200-01).  Based on information in the record before me, I find that at the May 10, 2004 annual review, district staff provided current information about the student and engaged in dialogue with the student's private evaluator to develop a thorough description of the student's present performance levels, classification, needs, required services, accommodations and modifications, and appropriate goals and objectives (Dist. Ex. 26).   

            Petitioners contend that the level of service in the May 10, 2004 IEP was insufficient to address the student’s needs and that the student failed to benefit from the education provided to him.  Petitioners state that because the student continued to engage in inappropriate behaviors despite the provision of a one-to-one aide, and because the district failed to demonstrate that the student made any progress socially or emotionally during the 2004-05 school year, the student was denied a FAPE for the 2004-05 school year. 

            The appropriateness of an IEP is determined by assessing whether it was reasonably calculated to provide educational benefit at the time the IEP was formulated (Antonaccio v. Bd. of Educ., 281 F. Supp. 2d 710, 724-25 [S.D.N.Y. 2003]).  The record shows that the IEP developed at the May 10, 2004 CSE subcommittee reflects current evaluations of the student and provides the student appropriate special education services.  For example, it contains detailed descriptions of how the student's behaviors interfere with his learning, and identifies his need to become comfortable in a classroom, assess and advocate for his own needs, and develop independence in completing assignments (Dist. Ex. 1 at p. 4).  The IEP states that the student requires close supervision and intensive intervention to manage the school environment because of his significant difficulties with attention and impulsivity, and contains a list of classroom modifications required for the student to function successfully in a classroom (Dist. Ex. at pp. 2, 5).  Classroom modifications describe conditions that can cause stress for the student and affect his behavior, such as staff or schedule changes, crowds and noise (Dist. Ex. 2 at p. 2).  The IEP also notes that at times, the student is unable to maintain appropriate behavior with adults and peers in the classroom, and describes inappropriate behaviors in which the student engages to seek attention (Dist. Ex. 1 at p. 4).  The IEP notes that, despite his difficulty with social skills, the student demonstrates a desire to make friends and initiate conversations (Dist. Ex. 1 at p. 4).  Individual counseling was recommended to address social skills deficits and social skills goals recommended by the student's private therapist were incorporated into the IEP (Dist. Ex. 1 at pp. 5, 9). 

              I find that the program recommended in the May 10, 2004 IEP, at the time it was formulated, was reasonably calculated to enable the student to receive educational benefits and likely to produce progress.

             Also without basis in the record is petitioners’ contention that the proposed placement for ESY services in the summer 2004 did not adequately address the student’s needs and that counseling was “either not in place or ineffective.”   For the summer 2004, the CSE subcommittee recommended individual counseling once per week between July 1, 2004 and August 11, 2004 (Dist. Ex. 1 at p. 1).  Counseling services were initiated when the student began attending the recommended summer program but, because the student did attend the program until the beginning of the program's second full week, the social worker responsible for this service provided additional counseling in order to ensure a sufficient number of sessions (Tr. pp. 134).  The CSE chairperson testified that when the student resisted leaving the classroom for individual counseling, the social worker provided push-in counseling services in the classroom (Tr. p. 134, 343-44).

              The special education teacher who provided instruction to the student in summer 2004 testified in detail regarding the student's behaviors in July and August 2004.  She stated that at the beginning of the summer program, the student was inattentive and would make frequent attempts to leave the classroom (Tr. pp. 308-09).  To address these behavior difficulties, arrangements were made for the student to have the services of a one-to-one aide (Tr. p. 309).  The school nurse testified that, when the student first began to attend the summer 2004 program, she did not have documentation from the student's physician and was unable to administer medication to the student (Tr. p. 706).  The nurse began administering medication to the student after July 19, 2004, when she received the required physician's orders (Tr. p. 706).  Staff working with the student reported improvement in his behavior after his medication schedule was established (Tr. pp. 717, 326-27).  The student's special education teacher reported that the student's behavior improved and he became more responsive to instruction during his second week in the program (Tr. pp. 310, 327).  She testified that, by the end of the summer 2004 ESY program, the student was "on task academically with the other students in the classroom" and that socially he had progressed from refusal to speak to other students and making no eye contact to becoming "part of the class," participating in classroom activities and interacting appropriately with classmates  (Tr. pp. 313-14, 330).  The social worker who provided counseling to the student in summer 2004 testified regarding the student's progress, noting that by the end of summer the student would answer questions and participate in games (Tr. p. 351).

               Although no formal BIP was developed and implemented during the summer 2004 ESY program, I find that, within the constraints imposed upon staff by the delay in the student's participation until the second full week of the program as well as delays in arranging for administration of his medication, the student's social/emotional and behavioral difficulties were adequately addressed during the brief period that the summer program was implemented.   

                As for petitioners’ contention that respondent did not regularly report the student’s progress to petitioners, the record contains copies of report cards and quarterly reports of progress on the student's IEP goals and objectives (Dist. Exs. 3, 4, 13, 14; Parent Exs. D, EE, GG).  Between October 28, 2004 and December 22, 2004, petitioners received daily reports describing the student's behavior during each of the seven periods of the school day (Parent Ex. II).  When a new reward system was implemented on January 4, 2005 to address the student's difficulty attending to and completing tasks, petitioners received daily progress sheets and weekly reports of time on task (Parent Exs. JJ, KK).  In addition to these reports, the student's special education teacher spoke with the student’s mother "very frequently" about the student's progress and on November 1, 2004 the special education teacher, general education teacher and school psychologist met with the student’s mother at the mother’s request (Tr. p. 410).  Also, the CSE convened for a program review on November 29, 2004 to discuss the mother’s request that provision of scribe services be removed from her son's IEP (Tr. p. 414).  The May 10, 2004 IEP adequately describes how the student’s progress towards the annual goals were to be measured and how the student’s parents were to be regularly informed of such progress (Dist. Ex. 1 at pp. 6-9; see 34 C.F.R. § 300.347[a][7]; 8 NYCRR 200.4[d][2][x]).  Moreover, the record demonstrates that petitioners had ready access to the student’s service providers who promptly addressed any concerns raised regarding his behavior and academic progress.  I find that petitioners received adequate information regarding their son's performance.

            Although this appeal is dismissed on the grounds that petitioners have failed to pursue their appeal in a timely manner, I concur with the impartial hearing officer’s finding that the challenged IEP was appropriate when formulated and that respondent has met its burden of proving that it offered to provide a FAPE to the student during the summer 2004 and the 2004-05 school year.   I further concur with the impartial hearing officer’s findings that the student did show progress during the 2004-05 school year and that the 2004-05 IEP was properly implemented and therefore find petitioners’ claims in this regard to be without merit. 

              I have considered petitioners’ remaining contentions and I find them to be without merit.

THE APPEAL IS DISMISSED.