06-121

            Petitioners appeal from the decision of an impartial hearing officer that denied their request to be reimbursed for their son's tuition costs at the Transitional Learning Center (TLC)¹ School and for privately obtained related services for the 2005-06 school year.  The appeal must be dismissed. 

              At the outset, I must address two procedural matters.  Petitioners have attached copies of invoices to their verified petition for the period of October 2005 through April 2006 that reflect the cost of applied behavioral analysis (ABA) therapy and ABA supervision provided by Tri-State Learning Center, Inc. (Tri-State) to their son (Pet. Ex. C).  Petitioners did not offer these documents at the time of the impartial hearing.  Generally, documentary evidence not presented at an impartial hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Child with a Disability, Appeal No. 06-046; Application of a Child with a Disability, Appeal No. 05-080; Application of a Child with a Disability, Appeal No. 05-068; Application of the Bd. of Educ., Appeal No. 04-068).  Respondent objects to petitioners' submission, noting that the invoices (Pet. Ex. C) were available at the time of the impartial hearing.  Respondent also asserts that these documents lack probative value.  Under the circumstances, I decline to accept the additional evidence submitted by petitioners, because it is not necessary in order to render my decision.

            Second, petitioners have submitted a memorandum of law as a reply to respondent's verified answer.  Pursuant to State regulations, the scope of a reply is limited to any procedural defenses interposed by respondent or to any additional documentary evidence served with the answer (8 NYCRR 279.6).  Respondent's verified answer included no additional documentary evidence nor did it contain any procedural defenses.  Additionally, petitioners' reply fails to meet the form requirements for pleadings (8 NYCRR 279.8[a]).  By letter dated November 9, 2006, respondent objected to petitioners' reply, noting that their submission failed to comply with 8 NYCRR 279.6 and, as a result, it should not be considered.  I concur.  Accordingly, the allegations and responses contained in petitioners' reply fall outside the scope of a reply and therefore will not be considered (Application of a Child with a Disability, Appeal No. 05-128; Application of a Child with a Disability, Appeal No. 05-072; Application of a Child with a Disability, Appeal No. 04-064; Application of the Bd. of Educ., Appeal No. 02-076).

            At the commencement of the impartial hearing, the child was five years old and attending a mainstream kindergarten class at TLC three half-days and two full-days per week with approximately 21 hours of in-school ABA support provided by Tri-State staff (Tr. pp. 1140-41, 1582; see Parent Ex. U at p. 1; Dist. Ex. 39 at p. 2).²  TLC is described in the record as a multi-age Montessori classroom which the Commissioner of Education has not approved as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.7, 200.1[d]; Tr. p. 1994).  In addition, the child was receiving private and respondent-reimbursed occupational therapy services, as well as private speech-language therapy services (Tr. pp. 1157-58, 1820-21; see Parent Ex. U at p. 1; Dist. Exs. 45, 46).  Tri-State was providing approximately 16 hours of home/community-based direct service per week and approximately four to nine hours of team meeting/parent counseling services per week (Tr. pp. 1587, 1590). 

            The child has been diagnosed with an autistic disorder and his overall cognitive functioning is below average for his age (Dist. Exs. 1 at p. 10, 22 at p. 12).  He demonstrates relative strengths in the non-verbal perceptual and working memory domains, and deficits in receptive and expressive language skills, writing and social skills (Dist. Exs. 3 at p. 8, 22 at p. 12).  He exhibits perseverative behaviors and repetitive motor and vocal behaviors (Dist. Ex. 22 at p. 12).  The child's classification and eligibility for special education services as a student with autism are not in dispute (see 8 NYCRR 200.1[zz][1]) (Tr. p. 5).

             In October 2001, the child was evaluated and found eligible for the Early Intervention Program (EIP) due to developmental delays (Dist. Ex. 1 at p. 1).  He received home-based occupational therapy, speech-language therapy and special education services (id.).  In September 2002, a pediatric neurologist diagnosed the child with a pervasive developmental disorder (PDD) and a severe expressive and receptive language delay (id.).  In November 2002, the child attended a center-based special education classroom and continued to receive related services (id.).  In July 2003, at the age of three, the child was evaluated by the McCarton Center for Developmental Pediatrics (McCarton Center) (id.).  Results of standardized testing, observation and parent report indicated that the child had delays in cognitive, language, fine motor and graphomotor areas (Dist. Ex. 1 at p. 9).  Parental report of the child's adaptive behavior indicated that his skills were moderately low in the communication, daily living, socialization and motor domains (id.).  The child was diagnosed with an autistic disorder and the McCarton Center's recommendations included a 12-month program of continuous service, individual home-based ABA discreet trial therapy with supervision, parent training, related services including auditory integration training and attendance at a full-day five day per week program that used a modified ABA approach (see Tr. p. 1185; Dist. Ex. 1 at pp. 9-10).

             During the 2003-04 school year, the child attended respondent's full-day 8:1+2 special class preschool program and received occupational therapy and speech-language therapy (Tr. p. 1111; Dist. Ex. 2 at p. 9).  He also received approximately 70 hours of home-based ABA therapy per month, at first provided through the McCarton Center, then through Tri-State beginning in March 2004, which included special education itinerant teacher (SEIT) services (Tr. pp. 1194-95, 1675; Dist. Ex. 3 at p. 1).  In May 2004, petitioners and respondent's Committee on Preschool Special Education (CPSE) entered into a stipulation of settlement and discontinuance that resolved claims regarding the provision of preschool services to the child from September 1, 2003 through August 31, 2005 (Dist. Ex. 2 at pp. 1-8).  The stipulation included SEIT services, 70 hours of home-based intervention per month, speech-language therapy two times per week and occupational therapy one time per week (Dist. Ex. 22 at p. 6).

             In summer 2004, the child attended a private preschool summer program four mornings per week for two and one half hours with SEIT services (Tr. p. 1247; Dist. Exs. 3 at p. 1, 8 at p. 1, 11 at p. 1, 53).  In September 2004, the McCarton Center reevaluated the child (Dist. Ex. 3).  Administration of the Stanford-Binet Intelligence Scale, Fifth Edition, yielded a nonverbal IQ standard score (SS) of 81, a verbal IQ SS of 73 and a full scale IQ SS of 76 (Dist. Ex. 3 at p. 10).  The child achieved a SS of 59 on the Beery-Buktenica Developmental Test of Visual-Motor Integration (VMI) (id.).³  The evaluation report noted that the child had made significant progress in all areas; however, the child's social relatedness, language comprehension, spontaneous speech and play skills were deficient (id. at p. 8).  The child was diagnosed with an auditory processing disorder and graphomotor deficits (id. at p. 9).  In essence, McCarton Center recommendations were consistent with service recommendations from the July 2003 evaluation report (compare Dist. Ex. 1 at pp. 9-10 with Dist. Ex. 3 at pp. 8-9). 

             During the 2004-05 school year, the child continued attending the private general education preschool that he had attended over the summer for five half-days per week (Dist. Exs. 8 at p. 1, 11 at p. 1, 16 at p. 1, 22 at p. 15).  He received in-school SEIT services four days per week for two and one half hours per day (id.).  The child received a combination of privately obtained and respondent-reimbursed home-based ABA services, speech-language therapy, occupational therapy and also supervision and team meeting sessions (Tr. pp. 1103, 1106-09; Dist. Ex. 8 at p. 1).  In January 2005, petitioner mother attended a meeting conducted by CPSE staff (Tr. pp. 177, 223; Parent Ex. Q).  The purpose of the meeting was to welcome parents of children who received CPSE services and to introduce them to school district staff (Tr. p. 213).  Parents of incoming kindergarten students were provided with information regarding the Committee on Special Education (CSE) process and given the opportunity to ask questions about the CSE process (Tr. p. 1049; see Tr. pp. 1874-75).

             In February 2005, respondent's CPSE referred the child to its CSE and obtained consent from petitioner mother to conduct an initial evaluation (Dist. Exs. 41, 42).  That same month, petitioners met with the CSE Chairperson and alternate CSE Chairperson to determine what evaluations would be conducted and to discuss program options for the child for the upcoming school year, including consideration of the 10:1+1 special education class that was ultimately recommended for the child (Tr. pp. 39-44, 1884; see Dist. Ex. 22 at p. 9).⁴  In spring 2005, a number of evaluations, progress reports and observations of the child were conducted to prepare for the upcoming CPSE meeting that would transition the child to respondent's CSE (Dist. Exs. 4-19).

            On February 14, 2005, an audiological evaluation revealed that the child had a great deal of difficulty attending to auditory stimuli, although his auditory processing skills were "good" at that time (Dist. Ex. 4).  The audiologist diagnosed the child with an auditory attention disorder and recommended that he receive auditory integration training (id.).  In early March 2005, the child's private speech-language pathologist administered the Preschool Language Scale, Fourth Edition (PLS-4), which yielded a receptive language SS of 63 (1st percentile) and an expressive language SS of 67 (1st percentile) (Tr. pp. 1817, 1820-21; Dist. Ex. 5).  The speech-language pathologist recommended that the child continue to receive individual speech-language therapy and noted that he benefited from the ABA therapy (id.).  Later that month, respondent's speech-language pathologist administered the Clinical Evaluation of Language Fundamentals-Preschool, Second Edition (CELF-P2) to the child, which yielded a receptive language index total SS of 53, an expressive language index total SS of 70, a language content total SS of 57 and a language structure total SS of 60 (Dist. Ex. 11 at p. 2).  Respondent's speech-language pathologist opined that the child needed a small group language-enriched education setting, with carryover interventions imbedded onto the daily curriculum and small group (dyad) speech-language therapy to help the child develop pragmatic and social peer communication skills (Dist. Ex. 11 at p. 4). 

            On March 22, 2005, a physiatrist and occupational therapist evaluated the child (Dist. Exs. 12, 13).  The occupational therapist reported that the child's performance yielded below average scores on all standardized tests administered, including the VMI and an assessment identified in the record as the Peabody Fine Motor Scales-2 (Dist. Ex. 12 at p. 3).  She indicated that the child's decreased muscle strength, endurance, grasping skills and intrinsic hand strength negatively affected educational and functional performance in the classroom and recommended that the child receive direct occupational therapy for the 2005-06 school year (id.).  The physiatrist reported that the child was resistant to tabletop activities and noted evidence of motor planning difficulties and impaired bimanual coordination (Dist. Ex. 13).  The physiatrist concurred with the occupational therapist's recommendation that the child receive direct occupational therapy services for the upcoming school year (id.). 

             In March 2005, Tri-State case supervisors developed a behavioral plan for the child, tracked his progress with the Assessment of Basic Language and Learning Skills (ABLLS) and compiled a progress report of his skills and current curriculum programs (Dist. Exs. 7, 9, 10).  Tri-State case supervisors opined that in order to assist the child in the development and integration of language, academic and social skills, both home-based 1:1 ABA and attendance in a mainstream classroom in conjunction with experienced ABA therapist support should be maintained (Dist. Ex. 10 at p. 5).  That same month, the preschool-based SEIT opined that for the upcoming school year the child would benefit from continued exposure to typically developing children; direct, individual instruction for academic learning; and a home-based ABA program to reinforce academic instruction (Dist. Ex. 8 at p. 4).  Additionally, in March 2005, the child's mother and one of his aides visited the 10:1+1 special education class that respondent's staff had discussed at the February 2005 meeting (Tr. pp. 1887-97).  With respondent's assistance, the child's mother also visited other classrooms (Tr. p. 1897).

              In April 2005, the child's preschool teacher opined that the child would be successful in either a general education or "mixed" special/general education kindergarten class with the combination of the home-based ABA services and a classroom SEIT (Parent Ex. E).  One of the child's physicians recommended that he be placed in a mainstream kindergarten setting with an ABA therapist (Parent Ex. G).  The physician further recommended the provision of direct 1:1 ABA services after school, on weekends and during the extended year, and the continuation of the child's related services (id.).

             On April 7, 2005, respondent's behavior consultant/special education teacher conducted an educational evaluation of the child (Dist. Ex. 18).  Administration of the Young Children's Achievement Test (YCAT) yielded a general information subtest SS of 107 (68th percentile), a reading/language arts subtest SS of 97 (42nd percentile), a mathematics SS of 103 (58th percentile), a writing/fine motor skills subtest SS of 88 (21st percentile) and a language skills subtest SS of 89 (23rd percentile) (id. at pp. 1-3).  The examiner reported that during the evaluation, the child demonstrated a very high activity level and demonstrated stereotypic behaviors such as "mild" hand flapping and jumping (id. at p. 3).  The child's focus during testing was reportedly poor and he required reinforcement to stay on task (id.).  The examiner opined that the child's play and social language skills were immature (id. at p. 4).  She concluded that because she administered the test in a 1:1 environment with frequent breaks, and because the child received prompting to answer as well as reinforcement for answering, he may not demonstrate the same level of skill in a large classroom without assistance (id.).

               In April 2005, respondent also conducted a functional behavioral assessment (FBA) and developed a behavioral intervention plan (BIP) for the child (Dist. Exs. 16, 17).  The FBA noted that the child's mother reported an improvement in his play skills, but that he tended to parallel play rather than interact with peers (Dist. Ex. 16 at p. 1).  The child's SEIT reported that the child would disengage from an activity if there were more than two children present (id.).  The child's teacher reported that the child had tantrums at times and opined that he needed 1:1 assistance to be successful in the school setting (id.).  The FBA targeted the behaviors of hand flapping, noncompliance and social avoidance and provided methods for assessing the target behaviors and hypotheses for why the target behaviors occur (Dist. Ex. 16 at pp. 1-2).  The BIP reported that the supervisor of the child's home-based program had behavior plans in place to manage inappropriate behaviors and to increase desired behaviors (Dist. Ex. 17).  Respondent's BIP stated that it was designed to compliment existing strategies and plans in order to provide consistency to the child's program (id.).  The BIP provided prevention strategies and replacement skill recommendations for the three target behaviors and reinforcement/management strategies (id.).

               In April 2005, two classroom observations of the child at his preschool program were conducted (Dist. Exs. 14, 19).  Respondent's special education teacher observed the child with his SEIT provider (Tr. p. 403; Dist. Ex. 14).  The special education teacher commented that the child required considerable support in order to facilitate the learning process and that his performance depended upon the amount of teacher time and attention afforded to him (Dist. Ex. 14 at p. 2).  She further reported that the child was solely dependent upon adult intervention, support and reinforcement to appropriately participate in classroom activities and that interfering behaviors surfaced with regularity and significantly affected his rate of learning (id.).  She concluded that due to the child's academic, social, behavioral, language and motor needs, placement in a highly structured class was "prudent" (id. at p. 4).  She recommended that the student/teacher ratio be deliberately controlled to afford the child the necessary amounts of teacher time/attention, and further noted that a language-based program was required (id.).  Pursuant to petitioners' request, a private board certified behavior analyst also observed the child and his SEIT provider in the classroom (see Tr. p. 63; Dist. Ex. 19).  She noted that the child was not disruptive, easily transitioned from one activity to the next, and independently followed approximately 90 percent of directions with accuracy (Dist. Ex. 19 at p. 5).  The behavior analyst reported that the class format was largely unstructured and that there were no opportunities to assess whether the pre-academic and academic skills the child learned in his 1:1 ABA instruction generalized to the school setting (id.).  She offered multiple recommendations that included placement in a mainstream kindergarten class with a trained ABA teaching assistant, and continued 1:1 home-based instruction (id.).

               In an undated report, respondent's school psychologist reviewed the September 2004 McCarton Center evaluation report (Dist. Ex. 15).  The school psychologist noted inconsistencies in the descriptive labels used by the McCarton Center to describe the child's cognitive test score results, and an inconsistency between the child's VMI standard score and percentile rank.  In her report, the school psychologist summarized that, according to the McCarton Center report, the child's relative strengths were in nonverbal perceptual and working memory domains, and his overall cognitive functioning was below average.  The child also demonstrated delays in perceptual-graphomotor abilities and expressive and receptive language skills.

                On April 12, 2005, respondent's CSE convened (Parent Ex. R at p. 1).  Respondent's social worker informed the CSE Chairperson that, despite attempts to contact petitioners, a social history of the child was not completed (Dist. Ex. 44).  The record indicates that the child's father refused to participate in the social history (Tr. pp. 52, 1127).  Minutes from the April 2005 CSE meeting reflect that the child's evaluation and progress reports were reviewed, and that a decision was made to classify the child as a student with autism (Tr. p. 59; Dist. Ex. 44).

                On May 9, 2005, the CSE Chairperson notified petitioners that the additional parent member who participated at the April 2005 CSE meeting was unavailable, and she gave them the choice of rescheduling the meeting or waiving the additional parent member's attendance (Tr. p. 61; Dist. Ex. 21).  Petitioner father opted to waive the additional parent member's attendance (id.).  On May 10, 2005, respondent's CSE reconvened (Dist. Ex. 22 at p. 9).  Minutes from the May 2005 CSE meeting reflect that Tri-State had developed goals for the child, and that CSE participants discussed additional areas of need that required goals (Parent Ex. R).  For the child's upcoming 2005-06 kindergarten school year, the resultant individualized education program (IEP) recommended a 12-month program, in which the child would receive a 35-hour per week program that consisted of ten hours of individualized direct consultant teacher home/community/school-based intervention, a half-day special education language-based kindergarten program, and a half-day facilitated inclusion class with a 1:1 aide in a general education kindergarten class in the child's home-zoned school (Dist. Ex. 22 at pp. 9, 16).  Parent training was recommended for one hour per week, occupational therapy was recommended two times per week and speech-language therapy was recommended four times per week (id.).  Respondent offered to provide shuttle transportation between the special education and mainstream programs (Dist. Ex. 22 at p. 9).  Pursuant to petitioner's request, respondent also agreed to add an additional session of occupational therapy per week to the child's program through August 2005 in addition to the services provided as per the May 2004 stipulation (Dist. Ex. 22 at pp. 14-15). 

                On May 11, 2005, TLC accepted the child into its program for the 2005-06 school year (Tr. p. 2004).  By letter dated June 15, 2005, petitioners notified respondent that although they accepted the proposed occupational therapy services, they did not consent to the balance of the proposed IEP (Dist. Ex. 23).  Petitioners advised respondent that for the 2005-06 school year they intended to enroll their son at TLC and that they would continue to provide him with services contained in the May 2004 stipulation (id.).  They also informed respondent that they would seek reimbursement for those services (id.).

                By letter dated July 29, 2005, through their attorney, petitioners requested an impartial hearing, and alleged among other things that on both a procedural and substantive level, respondent failed to offer the child a free appropriate public education (FAPE) (Parent Ex. A).  On August 5, 2005, respondent's attorney submitted a notice of insufficiency to petitioners' attorney, to which petitioners' attorney submitted an amended request for an impartial hearing on August 10, 2005 (Dist. Exs. 27, 29).  On August 11, 2005, respondent responded to petitioners' request and submitted a second notice of insufficiency to petitioners' attorney on the following day (Dist. Exs. 31, 32).  By letter dated August 22, 2005, petitioners made a second amended request for an impartial hearing, to which respondent requested further clarification (Dist. Exs. 33a, 34). 

                 A resolution session took place on August 31, 2005 (Dist. Ex. 39).  By letter dated September 9, 2005, petitioners requested that respondent provide transportation to TLC (Dist. Ex. 36).  Respondent agreed to provide transportation and a monitor for the child, to commence on September 12, 2005 (Dist. Ex. 37).

                 For the 2005-06 school year, the child attended a mainstream kindergarten class at TLC three half-days per week and two full-days per week with approximately 21 hours of in-school ABA support provided by Tri-State staff (Tr. pp. 1140-41, 1582; see Parent Ex. U at p. 1; Dist. Ex. 39 at p. 2).  The child received privately obtained and respondent-reimbursed occupational therapy services and speech-language therapy services (Tr. pp. 1157-58, 1820-21; see Parent Ex. U at p. 1; Dist. Exs. 45, 46).  Tri-State also provided approximately 16 hours of home/community-based direct service per week and approximately four to nine hours of team meeting/parent counseling service per week (Tr. pp. 1587, 1590).  In September 2005, petitioner mother attempted to obtain weekly occupational therapy services two times per week for the child, but due to scheduling difficulties with the provider of her choice she was only able to schedule one session per week of occupational therapy (Dist. Ex. 38). 

                  An impartial hearing convened on September 27, 2005 and, after 12 days of testimony, concluded on June 7, 2006. 

                 Over six days in October and November 2005, a private psychological evaluation of the child was conducted (Parent Ex. U).  The private psychologist administered a number of assessments to the child that included cognitive evaluations, play skill assessments, and a parental rating scale of the child's behavior (id. at p. 2).  The private psychologist also conducted two classroom observations, a home observation and an interview of TLC's director (id.).  She concluded that when ABA techniques were used, the child demonstrated areas of intact intelligence, though she noted a significant language delay/disorder and found that his sensory integration dysfunction was "significant" (id. at p. 13).  She recommended a program that included typically developing children with an experienced assistant teacher to accompany the child (id.).  The private psychologist also recommended that the child receive "in the range of" 25 hours per week of 1:1 ABA therapy, individual speech-language therapy two hours per week with consideration for dyadic group sessions, and that he continue to receive occupational therapy with a focus on sensory integration dysfunction (Parent Ex. U at p. 14). 

            By decision dated September 1, 2006, the impartial hearing officer denied petitioners' request for reimbursement of their son's tuition for the 2005-06 school year at TLC as well as their request for related services.  He held that the IEP developed as a result of the April 2005 and May 2005 CSE meetings was reasonably calculated to confer educational benefit on the child, thereby offering him a FAPE (IHO Decision, p. 56).  Specifically, the impartial hearing officer found that the goals contained in the May 2005 IEP were discussed at the May 2005 CSE meeting and were developed with meaningful parent participation (IHO Decision, p. 49).  He further noted that the goals and benchmarks listed in the May 2005 IEP were objectively measurable and consistent with the child's special education needs (IHO Decision, p. 50).  The impartial hearing officer also held that respondent's CSE had a "rational basis" to support the provision of the ten hours of ABA instruction offered to the child (IHO Decision, p. 51).⁵  The impartial hearing officer found that respondent's CSE's recommendation of ten hours of ABA instruction, added to the balance of the child's proposed program, was sufficient (id.).  Next, regarding petitioners' claim that the proposed program was too restrictive, and therefore failed to comply with the least restrictive environment (LRE) mandate required by the Individuals with Disabilities Education Act (IDEA), the impartial hearing officer determined that the program recommended by respondent's CSE was less restrictive than petitioners' proposed program (IHO Decision, p. 52).  Lastly, the impartial hearing officer found that the program recommended by respondent's CSE was developed as a result of two lengthy CSE meetings and therefore was not predetermined (IHO Decision, p. 53).

            This appeal ensued.  Petitioners seek reversal of the impartial hearing officer's decision and assert that he erred in finding that respondent offered the child a FAPE in the LRE.  Specifically, they assert that they were denied meaningful parent participation in formulating the goals and objectives listed in the May 2005 IEP.  Petitioners also contend that the impartial hearing officer erred in finding that the ten hours of home-based ABA instruction offered to the child was sufficient.  Next, petitioners claim that the child's proposed program failed the IDEA’s LRE requirements because the May 2005 IEP did not offer him sufficient mainstreaming opportunities.  They also assert that respondent predetermined their son's program for the 2005-06 school year, thereby denying him a FAPE.  Lastly, petitioners argue that the May 2005 IEP was deficient because respondent failed to offer the child individual speech-language therapy, given his diagnosis of autism.  Respondent seeks dismissal of petitioners' claims in their entirety and further requests that the impartial hearing officer's determination be upheld. 

            A central purpose of the IDEA (20 U.S.C. §§ 1400-1482) ⁶ is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. July 27, 2006]).  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.347).⁷  "The core of the statute" is the collaborative process between parents and schools, primarily through the IEP process (see Schaffer, 126 S.Ct. at 532).  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 parents' claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993].  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (Burlington, 471 U.S. at 370-71).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (id. at pp. 370-71; see 20 U.S.C. § 1412[a][10][C][ii]).  With respect to equitable considerations, the IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see Mrs. C. v. Voluntown, 226 F.3d 60, 66 n. 9 [2d Cir. 2000]).

           The first step is to determine whether the district offered to provide a FAPE to the student (see Mrs. C., 226 F.3d at 66).  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 (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]; 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]).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]).  The IDEA directs that, in general, a decision by an impartial hearing officer shall be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]).  Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 200.5[i]).  Also, an impartial hearing officer is not precluded from ordering a local educational agency to comply with IDEA procedural requirements (20 U.S.C. § 1415[f][3][E][iii]).  The Second Circuit has determined that "a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression'" and if the IEP affords the student with an opportunity greater than mere "trivial advancement" (Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]), in other words, likely to provide some "meaningful" benefit (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120  [2d Cir. 1997]).  The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).  The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

            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][5][A]; see 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]; 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]). 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 IEPwithin 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]; see 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; Oberti, 995 F.2d at 1213; Warton v. New Fairfield Bd. of Educ., 217 F. Supp. 2d 261, 274 [D.Conn. 2002]; A.S. v. Norwalk, 183 F. Supp. 2d 534, 542 n.8 [D.Conn. 2002]; Mavis, 839 F. Supp. at 985).  When determining whether a student with a disability can be educated satisfactorily in a regular class with supplemental aids and services, the factors to be considered include, but are not limited to:  "(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 also, Daniel R.R., 874 F.2d at 1048-1049; Mavis, 839 F. Supp. at 987-90).  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]).

            As a preliminary matter, I note that the impartial hearing officer's decision was unclear as to which party was assigned the burden of proof on prong one of the Burlington/Carter analysis described above, i.e., whether the services offered by the board of education were inadequate or appropriate.  In the instant matter, the impartial hearing commenced before and concluded after the Schaffer v. Weast decision, which was issued on November 14, 2005 (126 S.Ct. 528 [2005]).  In Schaffer, the United States Supreme Court held that the "[t]he burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief." (Schaffer, 126 S.Ct. at 537 [2005]).  Accordingly, petitioners, as the party seeking relief, have the burden of persuasion to demonstrate that respondent failed to offer the child a FAPE.  Although the impartial hearing officer noted, at the commencement of the impartial hearing, that respondent bore the burden of proving that it offered the child a FAPE, his decision does not clearly indicate to whom he ultimately assigned the burden of proof (Tr. p. 4).  Nonetheless, regardless of where the burden of persuasion falls, I find that the evidence in the record in the present case establishes that respondent offered a FAPE to the child for the 2005-06 school year.

             I also find that the impartial hearing officer conducted the impartial hearing in an appropriate manner consistent with the requirements of due process.  His decision is thorough.  However, I remind the impartial hearing officer of the requirement that his decision "shall reference the hearing record to support the findings of fact," as I note that his 57 page decision, while thorough, lacks record citations (8 NYCRR 200.5[j][5][v]).  For the reasons set forth herein, I concur with the impartial hearing officer's decision.

              Petitioners contend that the goals and objectives articulated in the May 2005 IEP were not developed with meaningful parent participation.  The impartial hearing officer determined that the goals were discussed at the May 2005 CSE meeting with petitioners' participation together with the participation of the child's service providers (IHO Decision, p. 49).  I concur.  The record demonstrates that petitioners attended both the April 2005 and May 2005 CSE meetings (Tr. pp. 53, 60-62).  The child's mother testified that IEP goals and objectives were not individually developed at either the April 2005 or May 2005 CSE meetings (Tr. pp. 1903-04).  The CSE Chairperson testified that at the April 2005 CSE meeting the child's present levels of performance and needs were discussed "at length" (Tr. p. 58).  At the May 2005 CSE meeting, the child's current levels of functioning were reviewed and goals were discussed for approximately 45 minutes (Tr. pp. 58, 72-74; Dist. Ex. R).  The CSE Chairperson stated that many broad goals for the child were discussed, including goals regarding generalization of information and increased independence in group settings, decreased reliance on 1:1 adult intervention, exposure to the scope and sequence of regular kindergarten curriculum, and language and pragmatic skill development (Tr. pp. 72-73).  Respondent's behavioral consultant testified that the CSE discussed the child's lack of generalization, social language and independence skills as annual goals (Tr. pp. 647-48).  Tri-State providers generated and discussed what they recommended for inclusion in the child's IEP, and the behavioral consultant testified that she took Tri-State's information into account when she drafted the child's goals (Tr. pp. 281-82, 395, 651-52).  The CSE Chairperson also testified that she asked petitioners if they agreed with the goals as discussed, and she agreed to incorporate some of Tri-State's goals into the child's IEP (Tr. pp. 73, 304, 395).

               I also concur with the impartial hearing officer's finding that petitioners had ample time to request revision of any specific goals with which they disagreed (Tr. pp. 370-76; IHO Decision, p. 50).  The CSE Chairperson asked petitioners twice for their input on goals (Tr. p. 386).  The record reveals that respondent made multiple attempts to determine petitioners' specific objections to the goals; however, petitioners did not provide details regarding their disapproval (Tr. pp. 370-76; Dist. Exs. 27, 32, 39).

               Petitioners also maintain that their son was denied a FAPE because they were not present for the actual writing of the goals on the May 2005 IEP.  Although the record reveals that the final objectives were drafted for the May 2005 IEP after the CSE meeting, the impartial hearing officer found that the typing and presenting of written goals and objectives to the parents prior to the end of the CSE meeting was not required in the instant case (see Tr. p. 74; IHO Decision, p. 49).  I note that in light of the discussion at the CSE meeting surrounding the child's needs and the goals that would address them, and petitioners' opportunity during the CSE meeting to provide input on the proposed goals and objectives, the writing of the specific language for goals after the CSE meeting did not, in these circumstances, deny petitioners an opportunity to participate in the formulation of their son's IEP, or result in the denial of a FAPE  (see Application of a Child with a Disability, Appeal No. 06-037).  Moreover, as mentioned above, the impartial hearing officer noted that petitioners had "ample" time after receipt of the IEP to object to goals they believed were not adequate (IHO Decision p. 50).

               Based on the foregoing, I concur with the impartial hearing officer's finding that respondent afforded petitioners meaningful participation in developing the goals and objectives contained in the May 2005 IEP. 

               I now turn to petitioners' assertion that the ten hours of home-based ABA instruction that respondent offered to the child was insufficient.  The impartial hearing officer determined that respondent's recommendation of ten hours of home-based ABA instruction, when considered in conjunction with the remainder of the child's proposed program, was appropriate and that there was a rational basis to support the ten hours of ABA offered by respondent's CSE (IHO Decision, p. 51).  Although I agree with the impartial hearing officer's conclusion that the recommendation was appropriate, I find that he employed an improper standard when he determined that the CSE had a "rational basis" to support its recommendation.  It is well-established that the unique needs of children with disabilities must be considered in determining the specially designed instruction they will receive, as well as in determining the appropriate related services required to assist such children so that they benefit from special education (see generally 20 U.S.C. § 1401[26], [29]).  For the reasons set forth below, I find that the recommendation of ten hours of 1:1 direct consultant teacher instruction was individually tailored to meet the child's special education needs and was an appropriate recommendation.

              The record indicates that during the 2004-05 school year, the stipulation between the parties provided for 70 hours of ABA services per month while the child attended a part-time mainstream program (Tr. p. 240; Dist. Ex. 2).  For the 2005-06 school year, respondent offered a half-day mainstream program with 1:1 support, combined with a half-day of special education and two hours of 1:1 direct consultant teacher services (Tr. p. 241; Dist. Ex. 22).  Respondent's CSE Chairperson testified that a full school-day schedule with two additional hours of consultant teacher services is a "very, very long day for a child to be engaged in direct instructional programming" (Tr. p. 241).  She stated that in light of the total program offered to the child, two hours per day was "developmentally appropriate" to meet his needs and to allow him to participate in activities in which five-year-old children engage (id.).

              Moreover, respondent's behavioral consultant testified that the 1:1 instruction, special education class and mainstream class with support were all important components of the child's program and that to add more than ten hours of 1:1 instruction to the total program was "just too much" for him (Tr. p. 680).  She opined that there needed to be time in the day for the child to not receive direct instruction from anyone, to have a chance to incorporate what he has learned, and to have "down time" (Tr. p. 681).  The behavioral consultant further opined that the child would be better able to generalize skills by reducing his 1:1 service hours and that she did not see evidence that 1:1 intervention was the only way the child could acquire a new skill (Tr. pp. 724-25). The record also reveals that the private psychologist who conducted the fall 2005 psychological evaluation of the child agreed that, for a child who attended school 25 hours per week, eight to ten home-based hours of ABA instruction was appropriate (Tr. pp. 1477-78; Parent Ex. U).

              In conclusion, based on respondent's explanation of the child's total program, I agree with the impartial hearing officer's finding that respondent's recommendation of ten individual direct consultant teacher hours in combination with the rest of the child's program was appropriate to meet his special education needs.

              Petitioners argue that their program of two full-days and three half-days of mainstream school with approximately 21 hours per week of ABA support and 15-18 hours of home-based ABA support is the LRE for the child, and that respondent's proposed program was overly restrictive because it did not offer any full-time mainstream opportunities.  I agree with the impartial hearing officer that, as a whole, the program proposed in the May 2005 IEP was less restrictive than the petitioners' proposed program and that it offered the child a FAPE in the LRE.

             The record shows that the special education teacher of the proposed special education kindergarten class has taught special education kindergarten through second grade for 35 years (Tr. pp. 401, 408).  She testified that her language-based classroom is housed in a general education school and was composed of herself, ten students and a full-time teacher assistant with whom she has worked for 13 years (Tr. pp. 408-09, 450, 468).  Based on reports she had read and her observation of the child, she noted that compared to other students in her class, the child was on the low end of the range of independence and language abilities, but his academic skills were strengths for him (Tr. pp. 411-12).

              The special education teacher stated that the CSE concluded that the child needed a highly structured, language-based program with direct teacher intervention, social skills training provided in a small setting, firm limits, consistent expectations and sensory input, which, she added, describes her class (Tr. p. 480).  Based on her observation of the child in his mainstream preschool class with SEIT assistance, she opined that he appeared to be "overwhelmed" by the delivery of instructions, explanations and directions because it was "too much, too fast, too soon" (Tr. p. 572).  She stated that a special education teacher presents information many times with much support, which differentiates that teacher from a typical classroom teacher (Tr. pp. 572-73).

              The behavioral consultant testified that the special education classroom was the "next step" from the 1:1 home-based instruction to the full mainstream environment (Tr. p. 679).  She testified that, in her view, the child would not get the direct instruction he needed to address his behaviors in a mainstream setting, and that the skills learned in the special education environment were a stepping stone to the less restrictive mainstream program (Tr. p. 819).  She added that he needed the special education class so he could "fully benefit" from the mainstream setting (id.).  The CSE Chairperson testified that the CSE believed that the child, based on his current levels of functioning and needs, required a small, special education class for part of the school day to directly teach him what he was not learning in a 1:1 setting or in a facilitated mainstream experience (Tr. p. 397).  Additionally, the alternate CSE Chairperson testified that students in the special education kindergarten class had opportunities to mainstream for Art, Music, Physical Education, and Library (Tr. pp. 905-06).

              The behavioral consultant testified that in the mainstream setting with support, the child would have the opportunity to be with typically developing peers and to practice some of the skills that he learned in the 1:1 and special education class settings (Tr. p. 680).  The CSE Chairperson stated that the child's participation in the mainstream kindergarten class was not considered part-time, but full-time, because all mainstream kindergarten classes were also held five days per week for two and one half hours per day (Tr. p. 397). 

               The special education teacher and the behavioral consultant opined that the special education classroom was less restrictive than a 1:1 home-based program (Tr. pp. 585, 816).  The child's mother also acknowledged that respondent's recommended program for 2005-06 included more mainstreaming opportunities for the child than he had during the 2004-05 school year (Tr. pp. 1975-76).

                 I find that the record reflects that respondent's program of 1:1 consultant teacher service, related services, special education class and mainstream class opportunity was appropriate to meet the child's special education needs in the LRE. 

                 Next, I turn to petitioners' contention that respondent impermissibly predetermined their son's program for the 2005-06 school year.  I agree with the impartial hearing officer's finding that respondent did not predetermine its recommendations for the child (see, e.g., Application of a Child with a Disability, Appeal No. 06-052).  Conversations about possible recommendations for a child, prior to a CSE meeting, are not prohibited as long as the discussions take place with the understanding that changes may occur at the CSE meeting (see, e.g., Application of a Child with a Disability, Appeal No. 05-110; Application of a Child with a Disability, Appeal No. 05-076).  It is well-settled that predetermination is not synonymous with preparation (Nack v. Orange City School District, 454 F.3d 604, 610 [6th Cir. 2006]).  Additionally, a school district is not prohibited from suggesting a public school placement before testing is complete (see W.S. v. Rye City School District, 2006 WL 2771867 [S.D.N.Y. 2006]).

                 In the present case, the record reveals that in February 2005, pursuant to petitioners' request, a meeting with the CSE Chairperson and the alternate Chairperson took place in order to plan for the upcoming CSE meetings (Tr. p. 1883).  During the February 2005 meeting, the CSE Chairperson suggested a possible placement in a special education class that was ultimately recommended by the May 2005 CSE (see, Tr. pp. 1884-85, 1117).  In March 2005, petitioner mother visited the proposed placement as well as another proposed program at the Trinity School (Tr. pp. 1886, 1897).  The impartial hearing officer correctly found that, although parts of the child's recommended program were discussed during the February 2005 meeting, the CSE made its full recommendation after two lengthy meetings at which petitioners were afforded meaningful participation (IHO Decision, p. 53; Tr. pp. 58, 73-74, 259, 299).  Furthermore, the record reflects that the May 2005 CSE discussed various program options, including a mainstream kindergarten program at the Ward School (Tr. p. 74).  Full-time special education classes were also discussed, as well as an inclusionary program at the Trinity School (Tr. p. 76).  The May 2005 CSE also discussed full-time special education classes in a variety of schools with a variety of different staffing ratios (id.).  Moreover, although she conducted an observation of the child and took part in both CSE meetings, respondent's special education teacher testified that she did not know that the May 2005 CSE would recommend placement in her classroom prior to the May 2005 meeting (Tr. pp. 403, 480, 492, 534; Dist. Ex. 14).  Respondent's behavioral consultant participated in both CSE meetings, and she also stated that she did not know what program the CSE would recommend prior to the May 2005 CSE meeting (Tr. p. 695).  With respect to the child's home-based ABA program, the record also reveals that respondent's CSE gave consideration to petitioners' request for continuation of their son's home-based ABA program (Tr. pp. 43, 78).  As a whole, the record reflects that petitioners were given many opportunities to comment on the program proposed in May 2005, and that respondent's CSE took their suggestions seriously (see Nack, 454 F.3d at 610).  Based on the foregoing, I concur with the impartial hearing officer's finding that the child's program recommendation was not predetermined.

                 I will now address petitioners' claim that the May 2005 IEP was deficient because respondent failed to offer the child individual speech-language therapy.  The impartial hearing officer determined that respondent had a "rational basis" for its recommendation of dyadic speech-language therapy.  Although I find that the impartial hearing officer employed an incorrect standard by finding a "rational basis" to support the May 2005 CSE's recommendation for speech-language therapy, I find that the May 2005 CSE's recommendation for speech-language therapy was reasonably tailored to meet the child's individual speech-language needs. 

                 Pursuant to 8 NYCRR 200.13[a][4], "instructional services shall be provided to meet the individual language needs of a student with autism for a minimum of 30 minutes daily in groups not to exceed two, or 60 minutes in a group not to exceed six."  The child's May 2005 IEP recommended services to address the child's language needs that exceeded this minimum requirement.  The CSE recommended that petitioners' son receive speech-language therapy two times per week for 30 minutes in a group of two in the classroom, and two times per week in a group of two in the "service provider's office" (Dist. Ex. 22 at p. 9).  The child's dyad speech therapy sessions were provided in addition to the time that the speech-language pathologist was in the classroom (Tr. pp. 872-73).  The record reveals that the ten hours of 1:1 consultant teacher service would also address the child's language goals (see Dist. Ex. 31 at p. 3).  Respondent's alternate CSE Chairperson, a speech-language pathologist, opined that either a speech-language therapist or classroom special education teacher could implement the language goals provided by Tri-State (Tr. pp. 982-83).  She further stated that the classroom special education teacher would provide individual language instruction (Tr. p. 885).  The alternate CSE Chairperson testified that providing therapy in a dyad facilitated and improved pragmatic skills with peers and that the students benefited from peer interaction and using peers as models (Tr. pp. 820-21, 872).  The alternate CSE Chairperson's overall testimony indicates that she believed that individual speech-language therapy would be "too rote and restrictive" for the child and that with the dyad approach she could still address a particular skill individually (Tr. pp. 873, 981, 986). 

                 In addition to direct speech-language therapy services provided for in the May 2005 IEP, the record also reveals that the proposed special education classroom was language-based and composed of students with speech-language needs who required ongoing intervention from the classroom teacher and speech-language therapist (Tr. p. 870).  The classroom teacher used a multisensory approach by presenting material to students via auditory, visual, and gross motor activities (id.).  The alternate CSE Chairperson explained that for students with language needs, the multisensory approach allows them to process and retain information as well as generalize the material that was presented (Tr. p. 871). 

                  I also note, as did the impartial hearing officer, that at the August 31, 2005 resolution session, respondent offered to provide two sessions of individual speech-language therapy in addition to the proposed sessions of dyad speech-language therapy (IHO Decision, p. 56; Dist. Ex. 39 at p. 2).  I also note that the private speech-language pathologist made the general comment that children on the autism spectrum need to have 1:1 therapy (Tr. pp. 1817, 1820-21, 1831).  Although she agreed that the child could benefit from group instruction as well, she opined that respondent's recommendation for all group therapy was inappropriate (Tr. p. 1831).  She stated that the child had a greater need for 1:1 speech-language therapy than he did group therapy, though she had recommended a dyad situation for the child to petitioners (Tr. pp. 1832, 1843).  While the child may benefit from some amount of individual speech-language therapy, its absence on the May 2005 IEP does not rise to the level of a denial of FAPE.  Under the circumstances, I find that the May 2005 CSE's recommendation for speech-language therapy was appropriate and individualized to meet the child's speech-language needs.

                  Based on the foregoing, I concur with the impartial hearing officer and find that the record demonstrates that respondent afforded petitioners meaningful parental participation in formulating the May 2005 IEP, and I further find that, because the May 2005 IEP was reasonably calculated to enable the child to receive educational benefit, petitioners' son was offered a FAPE for the 2005-06 school year (see Cerra, at 427 F.3d at 194-95).

                  Having determined that the challenged IEP offered a FAPE to petitioners' son for the 2005-06 school year, I need not reach the issue of whether petitioners' privately obtained special education services were appropriate, and the necessary inquiry is at an end (Voluntown, 226 F.3d at 66; Walczak, 142 F.3d at 134; Application of a Child with a Disability, Appeal No. 05-038; Application of a Child with a Disability, Appeal No. 03-058).

                  I have reviewed the parties' remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.