06-131

       Petitioner appeals from a decision of an impartial hearing officer which determined that the individualized education program (IEP) respondent's Committee on Special Education (CSE) had recommended for her son for the 2006-07 school year was appropriate.  Petitioner also requests that the State Review Officer order respondent to continue to provide home-based applied behavioral analysis (ABA) instruction and home-based speech-language therapy during the pendency of this appeal.  The appeal must be dismissed.

            At the time of the impartial hearing in September 2006, the child was nine years old and attending an ungraded 6:1+3 special education class at Shema Kolainu (Tr. p. 4; Parent Ex. B at p. 1).  The Commissioner of Education has approved Shema Kolainu as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).  The child was also receiving ABA instruction at Shema Kolainu, in addition to two 30-minute sessions of individual speech-language therapy per week, as well as one weekly 30-minute session of speech-language therapy in a group of four (Tr. p. 6; Parent Ex. B at p. 15).  Additionally, he was receiving two individual 30-minute sessions of physical therapy per week, as well as two individual 30-minute sessions of occupational therapy per week (id.).  Lastly, the child was also receiving five hours per week of privately obtained speech-language therapy on an individual basis (Tr. p. 16).  His eligibility for special education services and classification as a student with autism are not in dispute in this proceeding (8 NYCRR 200.1[zz][1]; see Tr. p. 8).

            The child has diagnoses of autism, tuberous sclerosis and a seizure disorder (Tr. p. 8).  He reportedly exhibits delays in gross and fine motor skills, visual perceptual skills and cognitive skills (Parent Ex. B at p. 5).  With respect to his cognitive functioning, it was reported that the child has difficulty learning new information and that he requires considerable repetition before responding to a question (Tr. p. 23).  Additionally, he has reported delays in verbal communication and play skills (id.).  The child also has difficulties with balance, coordination, sensory processing skills and socialization (Parent Ex. B at p. 5).

            In 1997, when he was six months old, the child developed seizures and was treated by a neurologist, who recommended further evaluations (Tr. p. 74).  Subsequently, he was referred for and received Early Intervention Services (EIS) which included approximately five hours of home-based occupational therapy per week and five hours of home-based physical therapy per week (id.).  In 1999, when he was two years old, the child began receiving speech-language therapy, as well as 15 hours of ABA instruction per week (id.).  The record indicates that during the 2002-03 and 2003-04 school years, respondent provided him with five hours of home-based speech-language therapy and ten hours of home-based ABA instruction per week (Tr. pp. 74-76).

            During the 2004-05 school year, the child attended Shema Kolainu (Parent Ex. D at p. 3).  He was also receiving ten hours per week of home-based ABA instruction provided by a special education itinerant teacher (SEIT) as well as four hours of home-based speech-language therapy per week (id.).  In January 2005, when the child was seven years old, respondent's school psychologist conducted a psychoeducational evaluation that included a classroom observation of the child (Joint Ex. A-1).  In her evaluation report, the school psychologist noted that the child appeared to have difficulty following one-step commands (id. at p. 1).  The evaluation report also indicated that the child required assistance in cleaning up his toys, and that he failed to respond to a prompt from his teacher to clean up (id. at p. 2).  The school psychologist noted in her report that, although the child initially screamed when his teacher attempted to help him, he calmed down within minutes and was able to clean up his toys (id.).

            The Vineland Adaptive Behavior Scale - Classroom Edition (Vineland) was completed as part of the psycho-educational evaluation of the child (id. at p. 4).  Based on reports by the child's classroom teacher, he obtained an adaptive behavior composite score of 51, which was below the first percentile (id.).  The evaluator observed that the child appeared to understand the meaning of at least ten words (id. at p. 2).  He could accurately point to his major body parts and he sometimes listened attentively to instructions when spoken to directly (id.).  Expressively, the child gestured appropriately, and when offered a choice, was able to indicate a preference (id.).  The evaluator reported that the child was able to compose sentences consisting of four or more words (id. at pp. 2-3).  Within the daily living skills domain, the evaluation report revealed that the child could feed himself competently and that he could also tend to his toileting needs without assistance (id. at p. 3).  The evaluator also noted in her report that the child sometimes demonstrated understanding that "hot things are dangerous," and sometimes fastened his seatbelt in an automobile without a reminder to do so and without assistance (id.).  In the social domain, the evaluator noted that the child sometimes showed interest in the activities of others, and that he would sometimes share his toys without being asked to do so (id.).

            On March 8, 2005, respondent's CSE convened to develop the child's program for the 2005-06 school year (Parent Ex. D at p. 3).  The March 2005 CSE recommended that the child continue to attend Shema Kolainu for the 2005-06 school year (id.).  Related services recommendations consisted of three 30-minute sessions of speech-language therapy per week, two 30-minute sessions of occupational therapy per week, and two 30-minute sessions of physical therapy (id.).  The resultant IEP did not provide for home-based ABA instruction, nor did it provide for the home-based speech-language therapy that the child had been receiving during the 2004-05 school year (id.).  Consequently, in May 2005, petitioner and her husband commenced an impartial hearing to seek funding for the continuation of their son's home-based services (id.).  On June 20, 2005, an impartial hearing convened (id.).  By decision dated June 24, 2005, an impartial hearing officer found that the March 2005 IEP was inappropriate to meet the child's special education needs (id. at p. 4).  Pursuant to her findings, the impartial hearing officer ordered the provision of ten hours per week of home-based ABA instruction for the 2005-06 school year, in addition to five hours per week of home-based speech-language therapy (id. at p. 5).  Neither party to the case at bar appealed the impartial hearing officer's June 2005 decision (Pet. ¶ 9).

            On March 21, 2006, respondent's CSE convened for an annual review and to develop a program for the child's 2006-07 school year (Parent Ex. B).  For the 2006-07 school year, the March 2006 CSE recommended placement in a 6:1+3 special education class at Shema Kolainu (id. at p. 1).  Related services recommendations included two individual 30-minute speech-language therapy sessions per week in a separate location, one 30-minute speech-language therapy session per week in a group of four in a separate location, two individual 30-minute sessions per week of physical therapy in a separate location and two 30-minute sessions of occupational therapy in a separate location (id. at p. 15).  Present levels of performance documented on the March 2006 IEP indicated that the child was "progressing at a nice rate" and that he could follow classroom routines throughout the day (id. at p. 3).  The March 2006 IEP also indicated that the child enjoyed working with his teachers and that he would often request work (id.).  However, when engaged in an activity in which he did not want to participate, the child would emit inappropriate vocalizations and behaviors, and the March 2006 IEP also noted that he engages in self-stimulatory behaviors (id.).  The March 2006 CSE determined that the child required a highly structured learning environment and intensive discrete trial instruction with frequent opportunities to respond, as well as frequent opportunities to practice a skill before it is mastered (id.at pp. 3-4).  The March 2006 CSE also developed annual goals and short-term objectives (id. at pp. 7-10).  The resultant IEP did not include the provision of the child's home-based services, however, the record indicates that the child received in-school delivery of ABA instruction (Tr. p. 11; see Parent Ex. B).  Although petitioner agreed with the March 2006 CSE's recommendation that the child continue to attend Shema Kolainu, and she also accepted the related services recommendations, she maintained that her son required the continuation of his home-based services in order to receive a free appropriate public education (FAPE) (Parent Ex. A at pp. 1-2).

            By due process complaint notice, dated August 24, 2006, petitioner commenced an impartial hearing (Parent Ex. A).  Petitioner asserted that, by failing to provide her son with the home-based ABA instruction and home-based speech-language therapy that he had been receiving for the last four years, the March 2006 IEP was substantively deficient and failed to offer the child a FAPE (id. at p. 2).  She further maintained that the five hours of home-based speech-language therapy per week as well as the ten hours of home-based ABA instruction ordered by the impartial hearing officer constituted her son's pendency placement (id.).

              An impartial hearing convened on September 19, 2006 and concluded on September 27, 2006, after two days of testimony. 

            On September 21, 2006, the impartial hearing officer issued an interim pendency order (Pet. ¶ 9).  Her interim pendency order is not part of the record on appeal and has not been appealed by either party.  Pursuant to federal and state law, an impartial hearing officer's decision is binding upon both parties unless appealed to the State Review Officer (N.Y. Educ. Law § 4404; 8 NYCRR 200.5[j][5][v]; see 20 U.S.C. § 1415[i][1][A]; 34 C.F.R § 300.514[d]).¹  Inasmuch as neither party has appealed the impartial hearing officer's September 21, 2006 interim pendency decision, the parties are bound by that decision (see Application of the Bd. of Educ., Appeal No. 06-026; Application of a Child with a Disability, Appeal No. 05-124; Application of a Child with a Disability, Appeal No. 00-057; Application of the Bd. of Educ., Appeal No. 98-7).

            On October 19, 2006, the impartial hearing officer rendered her decision, in which she found that petitioner failed to sustain her burden of proof that the program proposed in the March 2006 IEP was inappropriate to meet her son's special education needs (IHO Decision at p. 5).  Specifically, the impartial hearing officer determined that petitioner did not establish that home-based ABA instruction was necessary in order to provide the child with a FAPE (id.).  She further noted that petitioner failed to present evidence that demonstrated that her son required home-based speech-language therapy to generalize skills learned in school at home (id.).  Nevertheless, she ordered respondent's CSE to reconvene in order to be certain that the child's special education needs did not require home-based ABA instruction and home-based speech-language therapy (id. at p. 7).  The impartial hearing officer further ordered that respondent provide the child with five hours of home-based speech-language therapy per week and ten hours of home-based ABA instruction per week, until respondent's CSE reconvened (id.).

            Pursuant to the impartial hearing officer's October 19, 2006 decision and order, respondent's CSE reconvened on November 15, 2006 (Pet. ¶ 25).  A new IEP for the 2006-07 school year was generated as a result of the November 2006 CSE meeting (id.).  Petitioner notes in her petition that the November 2006 IEP does not provide for home-based ABA instruction or home-based speech-language therapy (id.).  Pursuant to the impartial hearing officer's order, the child continued to receive home-based ABA instruction and speech-language therapy until the CSE reconvened in November 2006 (Pet. ¶¶ 9, 10).  The IEP developed as a result of the November 2006 meeting was not in dispute during the September 2006 impartial hearing.  A State Review Officer will not render a determination on an issue that not been raised at an impartial hearing (Application of a Child with a Disability, Appeal No. 00-068; Application of a Child with a Disability, Appeal No. 00-019; Application of a Child with a Disability, Appeal No. 97-58; Application of a Child with a Disability, Appeal No. 93-36).  Therefore, the issue of the appropriateness of the November 2006 IEP is outside the scope of review of this proceeding and is not subject to review in this decision.

            This appeal ensued.  On appeal, petitioner asserts that home-based ABA instruction and home-based speech-language therapy are essential components of her son's educational program in order for him to receive a FAPE.  Respondent requests that the petition be dismissed in its entirety.

            The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482)^{2, 3} 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]; see Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356 [2d Cir. 2006]).  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320).  The "core of the statute" is the collaborative process between parents and schools, primarily through the IEP process (seeSchaffer, 126 S. Ct. at 532).  The federal and state statutes and regulations concerning the education of children with disabilities provide for a collaborative process between parents and school districts in planning and providing appropriate special education services (see Schaffer, 126 S.Ct. at 532; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192-93 [2d Cir. 2005]).

            A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra, 427 F.3d at 192).  While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]).  The IDEA directs that, in general, a decision by an impartial hearing officer shall be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]).  Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; see 34 C.F.R. § 300.513[a][2]).  Also, an impartial hearing officer is not precluded from ordering a school district to comply with IDEA procedural requirements (20 U.S.C. § 1415[f][3][E][iii]).

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

            As set forth in greater detail below, I concur with the impartial hearing officer's conclusion that petitioner did not demonstrate at the impartial hearing that the March 2006 IEP was not reasonably calculated to meet her son's special education needs or that home-based ABA instruction was a necessary element of a FAPE for her son.  I also agree with the impartial hearing officer's determination that petitioner failed to establish that home-based speech-language therapy was required in order to enable the child to generalize his knowledge.  As detailed herein, an independent reading of the record reveals that during the impartial hearing, petitioner did not establish that her son was not offered a FAPE, thereby failing to sustain her burden of persuasion.

          The central issue on appeal is petitioner's claim that the March 2006 IEP is substantively deficient because it did not provide for home-based special education services for her son.  With respect to petitioner's request for ten hours of home-based ABA instruction per week, petitioner and the child's SEIT testified that the child required the home-based ABA instruction due to his delays and to help him generalize his knowledge (Tr. pp. 11-12, 28).  First, I note that the record reveals that the child received ABA instruction throughout the school day at Shema Kolainu; therefore, he receives approximately five hours of ABA instruction per day (Tr. p. 11).  Although the child receives in-school delivery of ABA instruction, the child's SEIT "strongly believed" that he also required home-based ABA instruction, because he needed structure and could not function independently (Tr. p. 28).  I note, as did the impartial hearing officer, that despite petitioner's contention that all of the witnesses "unanimously agreed" that the child requires home-based ABA instruction in order to generalize skills learned in school, petitioner failed to set forth any specific examples on which she based her assertion (IHO Decision at p. 6).  Moreover, an independent reading of the record reveals that it does not contain any evaluative data to support her contention that the child requires home-based ABA instruction as an essential component of a FAPE.  What the record does indicate is that, with the assistance of the child's SEIT, the child was able to attend a birthday party without difficulty (Tr. p. 13).  In addition, while accompanied by a SEIT, petitioner was able to take the child for a haircut (Tr. pp. 18-19).  Under the circumstances, I agree with the impartial hearing officer's conclusion that although home-based ABA instruction provided petitioner with assistance in "the difficult job of caring for a child with a severe disability," petitioner did not demonstrate that it was a necessary element of a FAPE for the child (IHO Decision at pp. 6-7).  Accordingly, I agree with the impartial hearing officer's conclusion that petitioner failed to sustain her burden of proof that her son required ten hours of home-based ABA instruction per week in order to receive a FAPE.

           Petitioner also maintains that her son requires five hours of home-based speech-language therapy per week in order to receive a FAPE.  The impartial hearing officer concluded that petitioner failed to meet her burden of proving that the child was denied a FAPE without the provision of additional home-based speech-language therapy (id. at p. 5).  I concur.  The impartial hearing officer correctly found that petitioner failed to present any evidence to show that the child required home-based speech-language therapy in order to generalize skills learned in school and offered no documentation to support her assertion that he would regress without it.  Furthermore, even if petitioner proved that her son required home-based speech-language therapy in order to generalize his skills across settings, the record reflects that she did not establish that respondent failed to offer the child a FAPE.  At the impartial hearing, petitioner did not assert that the recommendation for speech-language therapy contained in the March 2006 IEP was inappropriate.  In fact, the record reveals that petitioner accepted the related services proposed in the March 2006 IEP, including the recommendation for speech-language therapy (see Parent Ex. A at p. 2).  Although the child's speech-language therapist testified that the child requires the additional five hours of speech-language therapy, "in order to meet his highest level of potential," the impartial hearing officer correctly noted that this is not the legal standard in determining whether or not a FAPE was offered (Tr. p. 44; IHO Decision at p. 5).  Based on the foregoing, I agree with the impartial hearing officer's finding that petitioner failed to establish that the child required five hours of home-based speech-language therapy in order to receive a FAPE.

            Based upon the information before me, I find that the program proposed in the March 2006 IEP, at the time it was formulated, was reasonably calculated to enable the child to receive educational benefit (Viola v. Arlington Central School District, 414 F. Supp. 2d 366 at 382 [S.D.N.Y. 2006] [citing to J.R. v. Bd. of Educ. of the City of Rye Sch. Dist., 345 F. Supp. 2d 386, 395 n.13 [S.D.N.Y. 2004]; see Cerra, 427 F.3d at 195; see also Mrs. B., 103 F.3d at 1120; Application of a Child with a Disability, Appeal No. 06-112; Application of a Child with a Disability, Appeal No. 06-071; Application of the Bd. of Educ., Appeal No. 06-010; Application of a Child with a Disability, Appeal No. 05-021).  In light of the foregoing, I concur with the impartial hearing officer for the reasons set forth above, that respondent offered the child an appropriate program for the 2006-07 school year.  Having determined that the challenged IEP offered the child a FAPE for the 2006-07 school year, I need not reach the issue of whether petitioner's proposed program was appropriate, and the necessary inquiry is at an end (Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60 at 66 [2d Cir. 2000]); 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).

            As an additional matter, I note that petitioner's appeal before me is an appeal on the merits, and the impartial hearing officer's September 2006 pendency determination, which was favorable to petitioner, is not on appeal before me.  Moreover, at this date, an appeal of the impartial hearing officer's September 2006 interim pendency order would be untimely (8 NYCRR 279.2[b]; see Application of a Child with a Disability, Appeal No. 06-115).  However, I do note that in the instant case, petitioner asserted that the prior July 2005 unappealed order of an impartial hearing officer constitutes the child's pendency placement.  Regarding this assertion, I note that recent amendments to the Code of Federal Regulations have clarified that a child's pendency placement can be changed in a two-tiered state where a state review officer agrees with the child's parents that a change in placement is appropriate (34 C.F.R. 300.518[d]).  The Analysis of Comments and Changes accompanying the new regulations state:

…the Act's pendency provision that when a hearing officer's decision is in agreement with the parent that a change in placement is appropriate, that decision constitutes an agreement by the State agency and the parent for purposes of determining the child's current placement during subsequent appeals.  See, e.g., Burlington School Committee v. Dept. of Educ., 471 U.S. 359, 372 (1985); Susquenita School District v. Raelee S., 96 F.3d 78, 84 (3rd Cir. 1996); Clovis Unified Sch. Dist. v. Cal. Office of Administrative Hearings, 903 F.2d 635, 641 (9th Cir. 1990).  To clarify that new Sec. 300.518(d)… does not apply to a first-tier due process hearing decision in a State that has two tiers of administrative review, but only to a State-level hearing officer's decision in a one-tier system or State review official's decision in a two-tier system that is in favor of a parent's proposed placement, we are removing the reference to "local agency'' in new Sec. 300.518(d).  This change is made to align the regulation more closely with case law.

(Child's Status During Proceedings, 71 Fed. Reg. 46710 [Aug. 14, 2006]; see 34 C.F.R. § 300.518[d]).⁴

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

THE APPEAL IS DISMISSED.