The State Education Department
State Review Officer
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 City School District of the City of New York
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Theresa Crotty, Esq., of counsel
Petitioner appeals from an impartial hearing officer's decision, which upheld the recommendation of respondent's Committee on Special Education (CSE) that his son be placed in a special class program for the balance of the 2002-03 school year with a student to teacher ratio of 12:1. The appeal must be sustained.
Respondent asks that I excuse its delay in answering the petition and accept its answer. Petitioner objects to the acceptance of the late answer. The Regulations of the Commissioner of Education require that an answer to the petition in an appeal to the State Review Officer be served within ten days after service of the petition (8 NYCRR 279.5). Petitioner has submitted an affidavit of service setting forth that the notice with petition and the petition were served on December 13, 2002. That being the case, respondent was required to serve its answer on or before December 23, 2002. Respondent did not serve its answer until January 24, 2003. Respondent's counsel states that given respondent's and her holiday schedule, she was unable to timely prepare the answer and could not do so until mid-January 2003. I may accept a late answer where there is a reasonable explanation for the delay and the petitioner would not be prejudiced by the acceptance of the answer (Application of a Child with a Disability, Appeal No. 01-038). In view of the absence of prejudice to the petitioner and the circumstances for the delay, I will exercise my discretion and accept respondent's answer (Application of a Child with a Disability, Appeal No. 02-055; Application of a Child with a Disability, Appeal No. 02-005).
Petitioner's son was 11 years old and enrolled in a sixth grade special class at Intermediate School (I.S.) 238 with a student to staff ratio of 12:1+1 at the commencement of the hearing on October 31, 2002. The student had transferred to that school in mid-October 2002 from I.S. 59, where he had also been enrolled in a special class program with a student to staff ratio of 12:1+1. The student has been receiving counseling and speech-language therapy as related services since at least the 2001-02 school year. The student is classified as speech-impaired.
Petitioner's son started the 2001-02 school year in a special class at a special school within a school. He was enrolled in an SIE-VI program in P.S. 224 at P.S. 205 in District 26 with a student to staff ratio of 12:1+2 (District Exhibits 1 pp. 1-3, 6). In October 2001, the CSE recommended that the student remain in that program (District Exhibit 1 pp. 1-3). In November 2001, however, after petitioner had requested a reevaluation (District Exhibit 6), the CSE recommended that he be moved to a 12:1+1 MIS-III program at P.S. 134 in District 29, his home district (District Exhibits 2, 7). The CSE also recommended that the student be mainstreamed in social studies (District Exhibit 7).
The student enrolled in P.S. 134 in December 2001. Subsequent to his enrollment, his classroom teacher and the student's parents agreed that the student should have the assistance of a 1:1 aide as he was having trouble adjusting to his new program and his behavior was requiring an inordinate amount of the teacher's time (District Exhibits 4, 7). The record is not clear whether respondent's CSE ever considered and/or approved this request.
Respondent's CSE met in March 2002. The committee was told that the student exhibited behavior difficulties and his teacher reported that her class was not an appropriate placement (District Exhibit 10). According to the minutes, petitioner wanted his son enrolled in regular education and also requested new testing. The CSE recommended that the student's program be changed from a 12:1+1 to a 12:1 and that he continue to receive related services. The subsequent individualized education program (IEP) recommended that the student receive speech-language therapy twice a week for 30 minutes in a group and counseling in a group once a week (District Exhibit 9). The student's mainstreaming in social studies was also continued (id.). Petitioner requested an impartial hearing on or about May 7, 2002 (District Exhibit 21). On June 25, 2002, petitioner asked the hearing officer in that case not to proceed with a decision as respondent had agreed to provide his son with an independent evaluation (id.).
A private consultant conducted an independent evaluation of the student in July and August 2002, when the student was in the fifth grade (District Exhibits 16, 17, 18, 26). Administration of the Stanford Binet Intelligence Scale in July 2002 yielded a composite score of 79, indicating cognitive ability in the low average range. The student's subtest scores were in the second percentile in verbal reasoning, the sixth percentile in abstract and visual reasoning, the 27th percentile in quantitative reasoning, and the 19th percentile in short term memory. The evaluator reported that the student showed anxiety during projective testing and that the results of that testing indicated some immaturity, sensitivity to criticism, introversion, and feelings of inadequacy (District Exhibit 26). The student's scores on the Woodcock-Johnson Tests of Achievement - III, which were also administered as part of the independent evaluation, were at the 2.1 grade level in passage comprehension, the 2.8 grade level in applied mathematics problems, the 3.8 grade level in word identification, the 4.0 grade level in oral language, and the 5.3 grade level in mathematics calculation and in written language. His composite score on the Vineland Adaptive Behavior Scales was at the adequate level (District Exhibit 17).
As indicated above, petitioner's son transferred to I.S. 59 in his home district in September 2002 for the sixth grade and was enrolled in 12:1+1 special classes. Shortly afterward, petitioner requested a CSE meeting to change his son's placement to regular education. As a result of two meetings in September 2002, respondent's CSE recommended that the student's classification remain speech-impaired and that he be placed in a special class program with a student to staff ratio of 12:1 (District Exhibit 15). The CSE also recommended that the student's group counseling and group speech-language therapy continue at once and twice a week respectively. During the previous year, when he was in the fifth grade, the student's mainstream social studies class had been a fourth grade class, and he did not do well in it (District Exhibit 12 pp. 2-3). The CSE also recommended that mainstreaming in that social studies class be discontinued (District Exhibits 13, 14).
By letter dated September 30, 2002 (District Exhibit 22), petitioner requested a hearing with respect to the 12:1 special class program recommended by the CSE. Petitioner again advised respondent that he wished his son to be enrolled in a regular education program. Petitioner also requested that his son receive supplemental and supportive services including resource room, consultant teacher services, collaborative team teaching, and special education teacher support. Petitioner did not object to the provision of related services to his son. On October 15, 2002, as indicated above, the student transferred to I.S. 238 and was enrolled in a 12:1+1 special class (Transcript p. 10).
The hearing in this matter commenced on October 31, 2002 and concluded on that day. The hearing officer rendered his decision on November 18, 2002. He upheld the CSE's recommendation to place petitioner's son in a 12:1 class special class program. Petitioner contends, among other things, that the hearing officer should not have found that the CSE met its burden to show that its recommended program was appropriate and that the CSE did not properly classify his son.
A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. ex rel. S.S. v. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96, 102 [2d Cir. 2000]; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 ). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 ). The recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of the Bd. of Educ. of the Monticello Cent. Sch. Dist., Appeal No. 02-008; Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
In order to make an appropriate recommendation, it is necessary to have appropriate evaluative information (Application of a Child with a Disability, Appeal No. 02-044; Application of the Bd. of Educ. of the Monticello Cent. Sch. Dist., Appeal No. 02-008). A board of education must assess a student in all areas related to a suspected disability, and the evaluation must be sufficiently comprehensive to identify all of the student's special education needs (8 NYCRR 200.4[b][vii] and [ix]). The evaluative information must be sufficient to ascertain the physical, mental, behavioral, and emotional factors which contribute to the suspected disabilities (8 NYCRR 200.4[b][v]), and it should provide information related to enabling the student to participate and progress in the general education curriculum (8 NYCRR 200.4[b]). A CSE may direct that additional evaluations or assessments be conducted to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b]). Importantly, without an appropriate evaluation of a student's special education needs, it is not possible to formulate an IEP to address those needs by providing the individually designed instruction and services necessary for the student to receive educational benefit as required by the Individuals with Disabilities Education Act (IDEA) (Monterey Peninsula Unified Sch. Dist. v. Giammanco, 1995 WL 476610 [N.D. Cal. 1995]; Flowers v. Martinez Unified Sch. Dist., 19 IDELR 898 [N.D. Cal. 1993]).
I have reviewed the evaluative information regarding petitioner's son available at the time of the January 14, 2002 CSE meeting. I find that such information was not adequate to support the CSE's recommendation for the 2002-03 school year. More particularly, it is clear that the student's behavior impeded his learning, disrupted classroom activities and was a significant and continuing issue in the 12 months that preceded the hearing. The student was distractible and had difficulty staying on task, had great difficulty working in groups, laughed at inappropriate times in class, both called out and left his seat without permission, and exhibited physically aggressive classroom behavior towards other students (see District Exhibits 1, 3, 9, 11, 12, 14, 19; Transcript pp. 78-79, 81, 82, 148, 177-83, 223-27, 230-32).
Because the student's behavior impedes his learning, his proper evaluation requires a functional behavioral assessment (FBA) to determine why he is engaging in such behaviors and how those behaviors relate to the environment (see 8 NYCRR 200.1[r], 200.4[b], 200.4[b][v], 200.4[b], 200.4[b][vii], and [ix]; Application of a Child with a Disability, Appeal No. 02-044; Application of a Child with a Disability, Appeal No. 01-101; Application of a Child with a Disability, Appeal No. 00-040). The record does not include an FBA and the IEP erroneously recites that the student's behavior is age appropriate and does not interfere with instruction (District Exhibit 15 p. 6). An FBA was required to identify the problem behavior, to identify the contextual factors that contribute to that behavior, and to 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]). Based on the results of the FBA, respondent's CSE should have included in the student's IEP a set of positive behavioral interventions and strategies to address the student's behaviors (see 34 C.F.R. § 300.346[a][i]; 8 NYCRR 200.4[d][i]; 34 C.F.R. Part 300, Appendix A, Section IV, Question 38). With this in mind, the evaluative information before the CSE did not assess all relevant areas, was not sufficiently comprehensive to identify all of the student's special education needs, was insufficient to ascertain the behavioral and emotional factors contributing to his disability and therefore did not provide the CSE with the information that it needed to develop an appropriate IEP to meet the student's needs in the LRE (Application of a Child with a Disability, Appeal No. 02-044; Application of a Child with a Disability, Appeal No. 02-032). I therefore find that the committee's recommendation that petitioner's son be placed in a 12:1 special education class should be annulled.
Consequently, I will remand the matter to respondent's CSE and the CSE should review the appropriateness of the student's current educational program (Application of a Child with a Disability, Appeal No. 93-31; Application of a Child with a Handicapping Condition, Appeal No. 93-11; see Application of a Child with a Disability, Appeal No. 92-38) including the need for an FBA and appropriate positive behavioral interventions and strategies. Moreover, in light of the specific and detailed information provided by the student's fifth grade special education teacher regarding the nature of his conduct and the frequency of his inappropriate behaviors (see District Exhibits 11, 12), in the development of any such appropriate interventions and strategies, the CSE should consider a behavior management system that incorporates frequent short term rewards and also whether a 1:1 aide is necessary to address the student's social/emotional and management needs.
Having determined the above, and in light of my remand of the matter to respondent's CSE, it is not necessary that I further consider petitioner's challenges to the hearing officer's decision (Application of a Child with a Disability, Appeal No. 01-083; Application of a Child with a Disability, Appeal No. 00-075).
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the hearing officer's decision is hereby annulled;
IT IS FURTHER ORDERED that this matter is remanded to respondent's CSE for a determination whether, at this time, the student's behavior impedes his learning or that of others; and if it does, to ensure that it has developed or will develop within the time frame set forth herein an appropriate FBA, and based upon such assessment, that it has developed or will develop a set of appropriate positive behavioral interventions and strategies to address the student's behaviors;
IT IS FURTHER ORDERED that respondent's CSE review the student's current IEP and make any necessary changes in it to ensure that the student's program for the 2003-04 school year takes into account the FBA and the behavioral interventions and strategies which may be required as well as any additional assistance needed to be provided to the student;
IT IS FURTHER ORDERED that respondent's CSE is to comply with the above within 30 days of the date of this decision.
Albany, New York
October 20, 2003
PAUL F. KELLY