The State Education Department
State Review Officer

No. 02-108





Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Carle Place Union Free School District

Robert S. Greco, Esq., attorney for petitioner

Jaspan Schlesinger Hoffman LLP, attorneys for respondent, Carol A. Melnick, Esq., of counsel



        Petitioner appeals from the determination of an impartial hearing officer holding that respondent may conduct a psychiatric evaluation of petitioner's child without petitioner's consent. Petitioner also requests an order requiring respondent to provide her child with at least three hours of resource room instruction per week and to institute an appropriate behavior intervention plan (BIP). The appeal is dismissed.

        Petitioner's son entered the Carle Place Union Free School District (district) in the fourth grade. He was evaluated and classified learning disabled (Exhibit 1; Transcript p. 30). The student's cognitive functioning is in the borderline range, and he exhibits deficits in social judgment, communication skills, and transition skills (Exhibits 51, 56, 71). He has also experienced behavioral difficulties. During the 1999-2000 school year, respondent's Committee on Special Education (CSE) recommended a functional behavioral assessment (FBA) to determine the need for a behavior intervention plan (BIP) (Exhibit 6). The record does not indicate whether an FBA was ever completed. The student continued to experience behavioral difficulties throughout the 2000-01 school year, causing him to be suspended twice (Exhibits 13, 14, 23, 24, 25, 26, 27, 31, 32). The student's individualized education program (IEP) for the 2001-02 school year indicated, however, that he did not need behavioral intervention (Exhibit 29).

        During the 2001-02 school year, petitioner's son continued to have behavioral issues, causing him to be suspended several times (Transcript pp. 115, 116). In fall 2001, the Child Study Team (CST) scheduled a meeting to discuss the student's behavior. The memo announcing the meeting indicated that a recommendation for an out of district placement would be raised (Exhibit 36). The record does not reveal whether the CST issued such a recommendation at that time. However, in January 2002, the CST met again to discuss an out of district placement (Exhibit 43). On January 31, 2002, petitioner consented to have her son evaluated. On February 1, 2002, the executive assistant to the superintendent for special education assigned an aide to shadow the student, although the CSE did not approve the decision (Exhibit 53). On March 25, 2002, the CSE recommended that petitioner's son undergo a psychiatric evaluation and that he remain home pending the results of the evaluation. The CSE also recommended that an FBA be performed and a BIP be developed (Exhibits 58, 59).

        On April 11, 2002, petitioner's attorney requested an impartial hearing to determine the appropriate placement for her son. The attorney also demanded the student's return to school pending the hearing (Exhibit 62). On April 12, the executive assistant to the superintendent for special education wrote a letter to the parent confirming that her son would return to school, that he would be assigned an aide, and that the CSE was requesting a psychiatric evaluation. A consent form was enclosed (Exhibit 64). Also on April 12, the parent's attorney contacted the school district. He stated that the parent would withdraw her request for hearing if the school district would agree to certain points regarding the student's behavior and to withdraw its request for a psychiatric evaluation (Exhibit 65). On April 15, the parent's attorney submitted a proposed BIP (Exhibit 67). Later that same month, the attorney informed the school district that the parent would not consent to have her child evaluated by a psychiatrist (Exhibit 69). Upon being informed that the parent refused to allow her child to undergo a psychiatric evaluation, the district reported the parent to the Department of Social Services alleging educational neglect, inadequate guardianship, and lack of medical care (Exhibit A; Transcript pp. 108, 109). The Office of Children and Family Services determined that the allegations were unfounded (Exhibits 74, B).

        The CSE convened on June 19, 2002. It again recommended a psychiatric evaluation, an FBA, and exploration of an out of district placement (Exhibits 71, 72). Apparently, the parent refused to consent to the evaluation. A memo dated July 19, 2002 indicates that the district initiated an impartial hearing to override the parent's refusal to consent to a psychiatric evaluation (Exhibit 75).

        The hearing took place on the 10th and 18th of September 2002. The hearing officer ordered that a psychiatric evaluation be conducted by a psychiatrist of the parent's choosing within thirty days of the date of the decision. If the parent failed to have her son evaluated within that time period, the hearing officer ordered the school district to have the student evaluated. Petitioner appealed asserting that, before seeking a psychiatric evaluation, the CSE should have conducted a "nexus" hearing to determine whether the student's behavior was a manifestation of his disability. Petitioner also asserts that respondent did not provide the amount of resource room services required by regulation. Petitioner seeks annulment of the hearing officer's decision. Petitioner also seeks an order requiring respondent to furnish her son with at least three hours of resource room services per day and to develop a BIP.

        The Individuals with Disabilities Education Act (IDEA) ensures that all children with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. 1400[d][1][A]). In order to ensure that FAPE is provided to all disabled students, CSEs are responsible for evaluating students with disabilities and students suspected of having disabilities (34 C.F.R. 300.125; 8 NYCRR 200.3[a][1]). Prior to conducting an initial evaluation or a reevaluation, a CSE must obtain parental consent (34 C.F.R. 300.505; 8 NYCRR 200.4[a][8]). Consent for an evaluation means that parents have been informed of all relevant information in their native language or other mode of communication, that they understand and agree in writing to the evaluation, that the consent form describes the evaluation, lists any records that will be released and lists the people to whom any records will be released. In addition, parents must understand that granting of consent is voluntary and may be revoked at any time (34 C.F.R. 300.500[b][1]; 8 NYCRR 200.1[l]). If a student is referred for evaluation and the student's parent fails to consent within 30 days of the referral, the chair of the CSE may request that the board of education pursue the evaluation through the due process procedure (34 C.F.R. 300.505[b]; 8 NYCRR 200.4[a][8] and 200.5[b][2]).

        CSEs must reevaluate students identified as having disabilities if conditions warrant a reevaluation, or if the child's parent or teacher requests a reevaluation, but at least once every three years (34 C.F.R. 300.536[b]). As part of any reevaluation, a CSE must review any existing evaluation data on the student. Based on that review, and input from the student's parents, the CSE must identify what additional information, if any, is necessary to determine the student's disability and placement (34 C.F.R. 300.533[a]).

        The district asserts that it needs to review results of a psychiatric evaluation in order to determine the student's disability and placement. The record reveals that the student has experienced behavioral difficulties since entering the district. Teachers report that he seeks attention inappropriately, has poor impulse control, uses poor judgment, is distractible, frustrates easily, and has difficulty with transitions (Transcript pp. 50-52, 76). The student reportedly talked about harming himself, others, and the school (Exhibits 8, 14).

        Although the CSE recommended an FBA during the 1999-2000 school year, no FBA was performed until April 15, 2002 (Exhibit 66). The record does not reveal whether the CSE convened to review the results of the FBA. An FBA is used to determine why a student engages in behaviors that impede learning and how the student's behavior relates to the environment. It should identify the problem behavior, define it in concrete terms, identify the contextual factors that contribute to the behavior, and formulate a hypothesis with regard to the general conditions under which the behavior usually occurs and the probable consequences that serve to maintain it (8 NYCRR 200.1[r] and 201.2[h]). A BIP is based on the results of an FBA and must include a description of the problem behavior, both global and specific hypotheses as to why such behavior occurs, and intervention strategies to address the behavior (8 NYCRR 201.2[a]).

        The FBA and BIP were both inadequate. The record does not indicate what information about the student was considered in the preparation of the FBA, and it is impossible to ascertain the specific reasons for the student's problem behavior, a key element of an FBA (See 8 NYCRR 201.2[h] and 200.1[r]; see also Office of Vocational and Educational Services for Individuals with Disabilities [VESID] Policy No. 98-05 [July 1998]). Contrary to the regulations, the FBA did not adequately identify the problem behavior, define that behavior in concrete terms, identify the factors that contributed to the problem behavior, or develop a hypothesis setting forth the general conditions under which the behavior usually occurred. The FBA did not contain precise information identifying and describing the student's problem behavior, and did not adequately identify the particular factors that contributed to the student's problem behavior. Because the FBA was inadequate, I must find that the BIP was inadequate.

        The existing data reviewed by the CSE was not sufficient to determine the specific reasons for the student's problem behavior. I find, therefore, that the CSE may conduct a psychiatric evaluation. However, the CSE must use the information obtained from the psychiatric evaluation, together with any additional information needed, to conduct an appropriate FBA. If the FBA reveals that a BIP is necessary, the CSE is directed to create an appropriate BIP. The CSE may only consider the student's placement after an adequate FBA has been conducted.

        I have considered petitioner's other assertions and I do not find evidence in the record to support them. I do, however, caution the district that each student with a disability requiring a resource room program must receive at least three hours of instruction per week in such program (8 NYCRR 200.6[f][1]).







Albany, New York


October 14, 2003