The State Education Department
State Review Officer

No. 03-009

 

 

 

 

 

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

 

Appearances:
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Nancy Jane Botta, Esq., of counsel

 

DECISION

        Petitioner appeals from the decision of an impartial hearing officer, which upheld a recommendation by respondent's Committee on Special Education (CSE) that her son be educated in respondent's South Richmond High School. The appeal must be dismissed.

        At the time of the hearing, petitioner's son was 16 years old and was in the ninth grade at respondent's Curtis High School. The student was first referred to respondent's CSE in June 1995 (Exhibit 6), at which time he was classified as learning disabled and recommended for resource room instruction (Exhibit 6). The student's classification was later changed to emotionally disturbed, and he was placed in a 12:1+1 classroom in a community school where he remained until he completed the eighth grade (Exhibit 6).

        Petitioner's son began attending high school in the fall of 2001. An individualized education plan (IEP) for the 2001-02 school year was prepared at the student's annual review held April 27, 2001. The CSE recommended that the student be placed in a 15:1 special class in respondent's Curtis High School for a ten-month school year and receive individual and group counseling once per week for 30 minutes each (Exhibit 6).

        Within three weeks of the start of the 2001-02 school year, the student's behavior became problematic. On September 28, 2001, he pushed a female student against a wall and pressed up against her; he then put her in a headlock and pushed her against another wall. When he let her go, she lost her balance and fell to the floor (Exhibit 28). According to the testimony of respondent's school psychologist, educational evaluator and the student's teachers, petitioner's son exhibited disruptive and attention-seeking behavior almost daily (Transcript pp. 14-16, 19-20, 24, 39-42, 45-52). The student's behavior problems continued throughout the year, resulting in referrals to the dean several times per month from September 2001 through June 2002 (Exhibit 28).

        During the month of April 2002, respondent's staff began preparing a functional behavioral assessment (FBA) (Exhibit 12). On April 10, 2002, the student was suspended for three days for being verbally abusive to another student and for being verbally and physically abusive to a school secretary (Exhibit 28). At the student's annual review held April 19, 2002, the CSE recommended that he remain in a 15:1 placement and continue to receive the related services he received during the 2001-02 school year (Exhibit 6).

        A behavior intervention plan (BIP) was implemented April 30, 2002, and the FBA was completed on May 10, 2002. The FBA isolated four behaviors: arriving late to class; failing to stay focused on classroom tasks; yelling and screaming in class; and failing to comply with teacher requests (Exhibit 12). The evaluator summarized that while in school, the student engaged in inappropriate behavior and insubordination in order to gain attention from adults and peers, to provide an escape from undesired and/or difficult schoolwork, and to obtain power (Exhibit 12).

        From April 19 through May 15, 2002, the student received 11 referrals to the dean for disruptive behavior (Exhibit 28). On May 16, 2002, respondent referred the student to the CSE for a change in placement due to his lack of success in the 15:1 placement and his escalating behavioral difficulties. On May 28, 2002, the student was suspended for five days for grabbing at the purse straps of a paraprofessional and nearly causing her to fall down a flight of stairs (Exhibit 28).

        The student's social history was updated June 3, 2002, revealing that petitioner's son was failing all of his classes, that he remained a disruptive influence in class and that he had accumulated 40 disciplinary referrals during the 2001-02 school year (Exhibit 2). An educational evaluation was conducted on June 11 and June 12, 2002 (Exhibit 4). Respondent's educational evaluator administered the Woodcock-Johnson Tests of Achievement - Revised (WJ-R), which had previously been used to assess the student in April 2001. In the June 2002 assessment, the student achieved grade equivalent (and percentile) scores of 4.0 (6) for letter-word identification, 3.8 (4) for reading fluency, 5.3 (9) for calculation, 4.7 (4) for math fluency, 4.4 (6) for spelling, 5.1 (17) for passage comprehension, 6.0 (19) for applied problems, and 2.6 (2) for editing (Exhibit 4). The record contains only the grade equivalent scores for the April 2001 assessment. When compared with the student's prior assessment in 2001, the results of the 2002 assessment reveal a decline of a full grade level in nearly all skill areas (Exhibit 4). A psychological evaluation was completed on June 18, 2002 (Exhibit 3). During the clinical interview the student stated that he enjoyed fighting with his peers and that he did not want to control his behavior (Exhibit 3). Respondent's school psychologist reported that the student's behavior presented a danger to himself and others, he was not succeeding academically, and his behavior prevented other students from learning as well (Exhibit 3).

        Respondent's CSE convened on June 20, 2002 to review the evaluations. The CSE recommended a change in placement to a special class with a 12:1+1 student to staff ratio in a specialized school for a 12-month school year. It was also recommended that the student continue to receive individual and group counseling (Exhibit 17). Petitioner requested the first impartial hearing on this matter on July 17, 2002. That hearing was held August 6, 2002. Petitioner challenged the CSE recommendations relative to her son's classification and the change in placement. The hearing officer rendered her decision on August 23, 2002 which ordered respondent to obtain a psychiatric evaluation and physical examination of the student prior to recommending a change in placement for petitioner's son (Exhibit 6). Neither party appealed from the hearing officer's decision. The physical examination of the student was conducted on September 5, 2002, and the psychiatric evaluation of the student was conducted on September 18, 2002 (Exhibits 7, 9). The results of the physical examination indicated that petitioner's son was healthy (Exhibit 9). The psychiatric evaluation yielded a diagnostic impression of adjustment disorder with conduct disturbances (Exhibit 7).

        On September 23, 2002, the student was found to be in possession of stolen property and was subsequently suspended from school for three days (Exhibit 10). On September 30, 2002, the student was again found to be in possession of stolen property and was arrested (Exhibit 10).

        Respondent's CSE reconvened on October 8, 2002 to determine an appropriate classification and placement recommendation for petitioner's son. The CSE again recommended a classification of emotionally disturbed and a placement at South Richmond High School in a 12:1+1 special class in a specialized school with the related services of individual counseling once per week and group counseling once per week (Exhibits 1, 19). Petitioner requested an impartial hearing on October 9, 2002 challenging the recommended placement (Exhibit 5). The student's classification is no longer in dispute.

        On October 17, 2002, a one-to-one aide began working with the student (Transcript p. 34). The student was found to be in possession of a knife on November 20, 2002 and was suspended for five days (Exhibit 30; Transcript p. 47). The impartial hearing in this matter was held December 5, 2002, and the hearing officer rendered his decision December 23, 2002, finding respondent's recommended placement and program were appropriate.

        A board of education bears the burden of demonstrating that it has recommended and provided a free appropriate public education (FAPE) to each student attending its schools (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000]; Walczak v. Bd. of Educ., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-92). In order to prove that it has provided a FAPE to an individual student, a board of education must show (a) that it complied with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA); (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits, and (c) that the recommended program is in the least restrictive environment (LRE) appropriate to the needs of the student (20 U.S.C. 1412[a][5][A]; 34 C.F.R. 300.550[b]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]; 8 NYCRR 200.1[cc] & 200.6[a][1]). A review of the record shows that respondent has complied with the procedural requirements set forth in the IDEA. At issue herein is whether the recommended IEP is reasonably calculated to enable the student to receive educational benefits in the LRE.

        The IDEA mandates that all students with disabilities be educated with nondisabled children to the maximum extent appropriate and may only be removed to a more restrictive environment when the nature and 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]; 34 C.F.R. 300.550[a][2]; Oberti v. Bd. of Educ., 995 F.2d 1204, 1213 [3d Cir. 1993]; Briggs v. Bd. of Educ., 882 F.2d 688, 691 [2d Cir. 1989]; Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 [5th Cir. 1989]; Warton v. Bd. of Educ., 217 F. Supp.2d 261, 273 n.1 [D. Conn. 2002]; A.S. v. Norwalk Bd. of Educ., 183 F. Supp.2d 534, 538 n.3 [D. Conn. 2002]; Mavis v. Sobol, 839 F. Supp. 968, 982 n.25 [N.D.N.Y. 1994]; Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 94-21). "[S]pecial education and related services must be provided in the least restrictive setting consistent with a [student's] needs" (Walczak, 142 F.3d at 122).

        Federal courts have long recognized that IDEA's requirement that disabled students be educated in the LRE was not an issue before the Court in Rowley and consequently, the test for determining the provision of FAPE set forth therein offers little guidance for determining whether a student is being educated in the LRE (20 U.S.C. 1412[a][5][A]; see Daniel R.R., 874 F.2d at 1045 [recognizing that the analysis in Rowley "is [ill-suited to] evaluating compliance with the LRE requirement"]; A.W. v. Northwest R-1 Sch. Dis., 813 F.2d 158, 163 n.7 [8th Cir. 1987], cert. denied, 484 U.S. 847 [1987] [FAPE analysis set forth in Rowley assumes compliance with the other requirements of IDEA, including the LRE requirement]; Roncker v. Walter, 700 F.2d 1058, 1062 [6th Cir. 1983], cert. denied, 464 U.S. 864 [1983] [holding Rowley test was not dispositive of LRE requirement]; Mavis, 839 F.Supp. at 982 [Rowley test is "not particularly useful" in LRE cases]).

        The Supreme Court has not yet established a standard for evaluating whether a school district has complied with the IDEA's LRE requirement. However, several district courts within the Second Circuit have adopted the Daniel R.R./Oberti analysis for determining whether a school district has complied with IDEA's LRE mandate (see Warton, 217 F. Supp.2d 261; A.S. v. Norwalk, 183 F. Supp.2d 534; Mavis, 839 F. Supp. 968). The State Review Officers have also followed Daniel R.R./Oberti and their progeny (Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 98-24; Application of a Child with a Disability, Appeal No. 98-12; Application of a Child with a Disability, Appeal No. 95-15; Application of a Child with a Disability, Appeal No. 94-27; Application of a Child with a Disability, Appeal No. 94-23; Application of a Child with a Disability, Appeal No. 94-21).

        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, 217 F. Supp.2d at 274; A.S. v. Norwalk, 183 F. Supp.2d at 542 n.8; Mavis, 839 F. Supp. at 985; Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 98-24). Several factors must be considered at each stage of the inquiry. When determining whether a student with a disability can be educated satisfactorily in a regular class with supplemental aids and services, these factors 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 987-990; Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 94-21).

        The record shows that respondent has made reasonable efforts to accommodate petitioner's son in his current placement. Respondent performed an FBA and implemented a BIP, gave the student a one-to-one aide, made classroom modifications and reevaluated the student, all to no avail. The student has not been successful in his current placement.

        When comparing the educational benefits available to the student in a regular class, with appropriate supplementary aids and services, to the benefits provided in a special education class (Oberti, 995 F.2d at 1217-18), the relevant question is whether the student can achieve the goals of his IEP within a regular education program, with the assistance of supplementary aids or services (Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 94-21; see also Walczak, 142 F.3d at 132-33 [holding the appropriateness of the recommended IEP is established by proof of meaningful academic and social progress]; Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120-21 [holding a more restrictive placement was required in order for student to make meaningful progress towards IEP goals]; A.S. v. Norwalk, 183 F. Supp.2d at 545-46 [holding "the appropriate yardstick is whether [the student] with appropriate supplemental aids and services, can make progress towards her IEP goals in the regular education setting."]; Mavis, 839 F. Supp. at 988 ["'[t]he relevant inquiry is whether a pupil with a handicapping condition can achieve the goal of his or her IEP within a regular education program, with the assistance of appropriate supplementary aids and services, because the IEP determines what is an appropriate education program for the pupil'" quoting Application of the Bd. of Educ. of the Schalmont Central School District, Appeal No. 90-19]).

        The record is replete with evidence that the student is not progressing toward his IEP goals. At the time the student's social history was updated, he was failing all of his classes. The evaluator reported that he remained a disruptive influence in class and that he had accumulated 40 disciplinary referrals during the 2001-02 school year (Exhibit 2). The student's current classroom has a student to teacher ratio of 15:1. His behavior in that class was described as attention-seeking and disruptive. By all accounts, the student has not been successful academically in this class and will benefit from a smaller, more structured classroom environment. The record further indicates that the current program and BIP were not meeting the student's needs. Respondent's representatives all testified that petitioner's son required a more restrictive, structured setting with greater resources devoted to his management needs in order to minimize disruptions and enable him to benefit from school.

        The special class recommended for the student was comprised of nine students, one teacher, and a paraprofessional. The clinical director of South Richmond High School testified that the recommended program was appropriate for the student because he would be in the upper 20 percent of the proposed class and that the majority of the students functioned at the 4.5 to 6.5 grade level (Transcript pp. 70-73). Respondent's clinical director further testified that the student's IQ score was commensurate with the rest of the class, with the exception of one student with a severe learning disability. The student's behavior difficulties were similar to those of the other students. All of the students in the proposed class required extensive supervision, disciplinary intervention, crisis counseling and ongoing clinical counseling. All of the students in the class were between the ages of 15 and 17 (Transcript pp. 70-73). South Richmond High School had six classes with a maximum of 12 students each. All of the students received counseling and 35 percent of the students received both individual and group counseling.

        When considering the last factor of the first prong, the effect of the presence of the disabled student, the relevant inquiry is whether he or she is so disruptive that the education of other students is significantly impaired (Oberti, 995 F.2d at 1217-18; Daniel R.R., 874 F.2d at 1049; Mavis, 839 F. Supp. at 990; A.S. v Norwalk, 183 F. Supp.2d at 550; Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 94-21). Petitioner's son's disruptive and aggressive behavior is well documented, and the record fully supports respondent's contention that his behavior significantly impairs the education of other students in the classroom. Based upon the foregoing, I find that the CSE reasonably concluded that his current placement was inappropriate.

        Once it is determined that placement in a nonregular education setting is appropriate, the second prong of the Daniel R.R./Oberti test, "whether the school has included the child in school programs with nondisabled children to the maximum extent appropriate" must be considered (Oberti, 995 F.2d at 1218). "If the school officials have provided the maximum appropriate exposure to non-handicapped students, they have fulfilled their obligation under the [IDEA]." (Daniel R.R., 874 F.2d at 1050).

        In the instant case, the student's disruptive and sometimes violent behavior is well-documented. The record reveals that the student poses a significant physical threat to peers and teachers alike (Exhibits 3, 28). Given the appropriate supplementary aids and services that respondent has provided without success, which include the development of a BIP and the assignment of a one-to-one aide, along with his need for a highly structured setting, I find that his current placement is inappropriate. In addition, the presence of petitioner's son in his current classroom causes a significant infringement upon the educational opportunities of the other students, which further renders his current placement inappropriate at this time (Daniel R.R., 874 F.2d at 1050; Application of a Child with a Disability, Appeal No. 94-23). Therefore, I find that respondent has met its burden of proving that the program and placement recommended by the CSE at its June 20, 2002 meeting are consistent with the FAPE and LRE requirements of the IDEA.

        I have considered petitioner's remaining claims and find them to be without merit.

 

        THE APPEAL IS DISMISSED.

 

 

 

 

Dated:

Albany, New York

 

__________________________

 

June 3, 2003

 

PAUL F. KELLY