The opinion of the court was delivered by: Brieant, J.
Plaintiffs initiated this action pursuant to the Individuals with Disabilities in Education Act, 20 U.S.C. §1400, et. seq., ("IDEA") alleging that Defendant school district failed to provide their child with "a free and appropriate education", as is required by the IDEA, and seeking reimbursement for their private school placement of the child. Before the Court for decision is Plaintiffs' "Motion for modified de novo review" from the February 6, 2006 decision of State Review Officer ("SRO") denying reimbursement. (Doc. 4). The SRO held that the Individualized Education Plan ("IEP") developed by Defendant Chappaqua Board of Education provided Plaintiff's son with a free and appropriate education ("FAPE") as is required pursuant to the IDEA. Also before the Court for decision is Defendant School District's motion for summary judgment to uphold the SRO's decision. (Doc. 5).
M.C. was born on June 10, 1994, and is twelve years old. His disabilities, as described by the IHO, include " 'Pervasive Developmental Disorder' ("PDD"), significant language disabilities, significant learning disabilities, motor development issue, and sensory dysfunction, including visual defects and auditory processing difficulties." (IHO at 5-6). The IHO further reported that "M's marked attention deficit compromises his cognitive, academic, behavioral and social functioning. M's parents and teacher reported that he had a short attention span, poor social skills, and was easily distracted by extraneous stimuli. His adaptive behaviors, i.e., daily living skills, communication and socialization, were below age expectant levels. Projective tests suggested that M is easily overwhelmed by emotional or complex stimuli, and he may cope with this by generating fantasies or scripting." (IHO at 26. ) M.C. "displays features of an autistic disorder; however, he was characterized as 'high functioning' within that diagnostic category." (SRO at 1).
M.C. entered the District as a pre-school student and attended school in the District's Roaring Brook Elementary School from Kindergarten through fourth grade. When M.C. was nine years old, the District conducted a psychological evaluation, after which the evaluators reported that he exhibited difficulty sustaining his attention in order to understand test directions and required frequent breaks. (SRO at 2.) IQ tests indicated that M.C.'s performance (which put him in the fourth percentile or below in every category) was hindered by severe attention and executive function deficits as well as significant language processing difficulties. (Id.)
During the 2003-04 school year M.C. attended the District school in a "co-teaching support program", in which M.C. was educated within the general education environment with special educational support. The special education services were provided by a special education teacher and a special education assistant. M.C. was also provided with a full time 1:1 aide, and speech language therapy. (SRO at 2-3).
Defendant's Committee on Special Education ("CSE") met in March, May, June and July of 2004, in order to develop M.C.'s Individualized Education Plan ("IEP") for the 2004-05 school year. The final 2004-05 IEP called for full-time 6:1 co-teaching support program in the general education environment with a full-time (5:1) program assistant. (SRO at 5). The IEP also called for daily integrated individual math instruction and daily individual reading instruction in a separate location, along with occupational therapy and psychological consultation.
At the final CSE, the parents voiced their concerns about M.C.'s progress, and discussed private placement of M.C. The parents specifically requested placement at the Eagle Hill School, a private school for students with disabilities. Defendant's CSE nevertheless recommended the District School as M.C.'s placement, reporting that "the Committee recommended Co-teaching Support Program with Program Assistant and Related Services as an appropriate program in the least restrictive environment." (SD-9 at 3). The parents rejected this conclusion, and by letter dated August 25, 2004, they informed Defendant that they would be enrolling M.C. in Eagle Hill and requested an impartial hearing for the purposes of obtaining reimbursement for the 2004-05 school year.
An Impartial Hearing was held over six days before the IHO. On October 31, 2005, the IHO issued a decision in favor of the Parents, concluding that "M's parents are entitled to reimbursement for the 2004/05 tuition at Eagle Hill, because the CSE's IEP was substantively flawed, M's parents have shown that Eagle Hill is an appropriate placement for him, and there are no equitable considerations which would bar an award of reimbursement."
The IHO found that there was "a serious substantive error in the IEP process." (IHO at 35.) This substantive error was the failure of the CSE to obtain a Functional Behavioral Assessment ("FBA") for M.C. Citing state and federal regulations, the IHO found that an FBA was required because M.C.'s behavior, including "poor attention, lack of focus, tangential speech and 'fantasy episodes' all significantly interfere with his instruction." (IHO at 36) (citing 8 NYCRR 200.4(d)(3) and 34 C.F.R. 300.346(a)(2)). The IHO also found that the District's use of a 1:1 aid, without a plan to reduce dependance on the aide, "may be viewed as a crutch or a palliative measure, especially where, as here, lack of independence is one of the student's most significant deficits." (IHO at 36).
The IHO found that the parents' placement of M.C. at the Eagle Hill school was appropriate, because it provided him a "highly-structured, multi-sensory instruction and intensive remediation in math, reading, and other language arts" and because "M has progressed in the program, academically and socially." The IHO further held that the equities favored the parents.
Defendant appealed the IHO decision, and on February 6, 2006, the SRO reversed the IHO's decision. The SRO held that the IHO had erred in concluding that Defendant's failure to conduct a FBA deprived M.C. of a FAPE. The SRO noted testimony by Defendant's professionals indicating "that during the 2003-04 school year the student's 'primary behavior that needed to be monitored was really with regard to attention." (SRO at 10) The SRO held that:
"[Defendant's] CSE considered appropriate strategies, including positive behavioral interventions and supports to address the student's attentions deficits, and developed an IEP which accurately reflected the results of evaluations that identified the student's needs, established annual goals and short-term instructional objectives related to those needs, and provided for the use of appropriate special education services in its creation of an IEP that was reasonably calculated to enable the student to receive ...