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 Gowanda Central School District
Hodgson Russ LLP, attorney for respondent, Jeffrey J. Weiss, Esq., of counsel
Petitioner appeals from an impartial hearing officer's decision finding that respondent had not provided her son with a free appropriate public education (FAPE) and directing that respondent reconvene a Committee on Special Education (CSE) to develop and implement an appropriate individualized education program (IEP). The appeal must be dismissed.
Petitioner's son was 18 years old at the time of the hearing, and he is classified autistic (Exhibit 60). At the time of the hearing, the student was receiving home instruction. The student reportedly has been diagnosed with pervasive developmental disorder not otherwise specified (PDD-NOS), obsessive-compulsive disorder (OCD) and oppositional-defiant disorder (ODD) (Exhibit 60). The diagnosis of ODD was provided to the district's school psychologist in a telephone conversation by the student's psychiatrist (Exhibit 48). The diagnoses are referred to in a May 2002 psychoeducational evaluation report (Exhibits 60, C1), and the student's mother testified regarding an initial PDD-NOS diagnosis when her son was nine years old, but these diagnoses are not otherwise documented in the record (Transcript p. 705). An occupational therapist who evaluated the student referred to a diagnosis of Asperger's disorder and also noted that the student was taking medication for anxiety and obsessive compulsive disorder. The therapist reviewed a sensory profile completed by the special education teacher most familiar with the student and found significant ratings on three of twenty-three factors consistent with a diagnosis of autism (Exhibits 61, C2, C4). Two of the student's teachers completed the Achenbach Child Behavior Checklist and rated the student as having borderline clinical to clinical levels of aggressive behaviors, a minimal handwashing compulsion, and attention problems that were rated high but within the normal range. Teachers also noted that the student "at times believes he has magical powers and believes his mother controls all aspects of his life at school" (Exhibits 60, C1). Although the record lacks a complete educational history of the student, he apparently has been receiving special education services for at least ten years (Transcript p. 311).
Prior to the instant case, the parent requested an impartial hearing on May 7, 2002, but the record does not indicate why the parent requested that hearing. Rather than go forward with the hearing, the parties entered into a settlement agreement (Exhibit 38). They agreed on July 12, 2002 that the student would be placed in a self-contained class with a student to staff ratio of 12:1+1 and have an individual aide. The class was located in the district's high school, but administered by the Board of Cooperative Educational Services (BOCES). The parties further agreed that the student would be placed in blended classes for earth science and English and a general education class for math. BOCES would provide social skills training, speech-language therapy, adapted physical education, and counseling. The parties decided to develop a temporary behavioral support plan that would remain in effect during the first ten weeks of school. The district agreed to perform a functional behavioral assessment (FBA) within five weeks of September 1, 2002 and subsequently convene a CSE meeting to make any necessary adjustments to the behavior plan. Finally, the district agreed to pay the parent's attorney's fees related to the May 7, 2002 hearing request (Exhibit 38).
On August 22, 2002, the CSE created an IEP that incorporated the terms of the settlement agreement and included a recommendation for a sensory integration evaluation (Exhibit 27). Petitioner agreed with the recommendations. The only regular education teacher present at the CSE meeting would not have been responsible for implementing any portion of the student's program (Transcript pp. 91, 619). On September 4, 2002, the student toured his proposed class site. On that date, the school psychologist reportedly gave the student a copy of the temporary behavioral support plan and informed the parent that her son had a copy of that plan (Exhibit 31).
Between September 25 and December 5, the school psychologist invited the parent to four meetings to discuss her son's behavior, but the parent did not attend any of the meetings (Exhibit 31). The student reportedly began the year well, but started having behavioral difficulties in the middle of October (Exhibits 23, D4). The behavior team completed the FBA on December 5 and a resulting behavior intervention plan (BIP) on December 10, 2002 (Exhibits 24, 21). The BIP included strategies to facilitate and encourage appropriate responses by the student when he became distressed (Exhibit 21).
During the first half of the school year, the student was frequently absent from school (Exhibits 14, 15). During the second half of October, his behavior reportedly began to deteriorate (Exhibits D16, D31; Transcript p. 158). On January 28, 2003, the school psychologist wrote a letter to the student's private psychiatrist expressing concern about the student's mental health. The psychologist reported that the student often used profanity and violent images in his speech, initiated verbally aggressive confrontations with other students, that he had hit another student, that he often spoke to his deceased grandfather, and that he exaggerated his age and claimed to possess numerous educational degrees (Exhibit E7). On February 5, 2003, the student became verbally aggressive and threw a glove at his teacher (Exhibit E3). Subsequent to the incident, the student reportedly harassed the school principal verbally, grabbed a telephone receiver off a desk and threw it against a wall, made an obscene hand gesture, and grabbed a form out of the principal's hand. A police officer who was present when this incident occurred arrested the student for disorderly conduct, and the district suspended the student for five days (Exhibits F1, 11).
On February 10, 2003, petitioner requested an impartial hearing asserting that her son's IEP was inappropriate, that the district failed to comply with the parties' settlement agreement, and that the district engaged in "procedural and substantive noncompliance with applicable law" (Exhibit 2). On February 25, 2003, the principal sent to the student's parents a "reintegration plan" providing for transition of the student, who remained on home instruction, back into school. (Exhibit J). Subsequent to the suspension and the proposal of the reintegration plan, the district complied with the mother’s request for her son to continue to receive home instruction (Exhibit I; Transcript p. 42). On April 23, 2003, respondent filed a motion requesting that the hearing officer remand the matter to the CSE to develop an appropriate IEP and "to consider, among other things, the need for additional services, and a further functional behavioral assessment and/or behavioral modification plan" (Exhibit 2). Respondent argued that no issue of fact had been presented in petitioner's request for a hearing (id.). In an e-mail, the hearing officer summarily denied the district's motion. On May 23, 2003, respondent submitted another motion to dismiss seeking remand to the CSE (Second Motion to Dismiss; Transcript pp. 31-32). Respondent asked the hearing officer to issue an order that incorporated several items requested by the parent raised in new settlement negotiations. Respondent asserted in its motion papers that it was willing to provide the special education services sought by petitioner, but was not willing to provide relief on issues viewed as outside the scope of what had been raised before the hearing officer. The hearing officer never addressed that motion. On the first day of hearing, the parties had a discussion off the record regarding the district's second motion and ultimately agreed to proceed with the hearing (Transcript pp. 31-32). The hearing took place over the course of four days beginning on June 13, 2003 and ending on August 1, 2003.
The hearing officer held that respondent complied with the parties' settlement agreement, allowed for parental participation in the process, recommended an appropriate placement, performed an adequate FBA and developed an appropriate BIP. The hearing officer did, however, find that petitioner's son was denied a FAPE because the CSE failed to include appropriate goals and objectives in the IEP, failed to recommend transition planning or services, did not properly provide occupational therapy, and did not provide sex education.1 The hearing officer ordered that the IEP be annulled and that the CSE reconvene to develop an appropriate IEP.
The parent appeals the hearing officer's decision. She asserts that respondent did not comply with the settlement agreement, did not comply with procedural requirements, did not provide the appropriate amount of speech-language therapy, did not provide appropriate counseling and social skills training, and did not provide appropriate home-hospital instruction. Finally, petitioner asserts that the impartial hearing officer committed procedural errors in conducting the hearing. Petitioner asks the State Review Officer to order respondent to provide the student with compensatory education and speech-language services, to perform an FBA, and to create a new BIP.
The hearing record reveals that the CSE did not complete the FBA until December 5, 2002 even though the July 2002 settlement agreement required completion of an FBA within five weeks of September 1, 2002 (Exhibits 24, 38, A2). The behavior team created a BIP on December 10, 2002 (Exhibit 21). The July 2002 settlement agreement required the CSE to convene after completing an FBA to "make any adjustments or modifications to the Behavior Intervention Plan if needed" (Exhibits 38, A2). The student began the school year with a temporary behavioral support plan, and this plan was effective in September and early October (Exhibit D15; Transcript pp. 86, 159-6). His behavior began to deteriorate about the middle of October (Exhibits 31, 23, D4). Although the student did not need adjustments or modifications to the temporary behavioral support plan within five weeks of September 1, 2002, he did need a review and revision of his behavior plan by the middle of October when his behavior began to deteriorate. The BIP was not completed until December 10, 2002 (Exhibits 31, 21).
A CSE should conduct an FBA when a student engages in behaviors that impede learning. In conducting an FBA, the CSE must first accurately assess the child’s behavior, drawing upon a variety of sources, including tests, parent and teacher input, and adaptive behavior, and ensure that the information obtained is documented and carefully considered (34 C.F.R. § 300.535[a], [a]). In so doing, the CSE has an affirmative obligation to administer tests and other evaluation materials as needed to ascertain whether any additional modifications to the IEP are necessary in order for the child to participate in the general curriculum (8 NYCRR 200.4[b][iii]), including using instruments that may assess the contribution of behavioral factors, where appropriate (20 U.S.C. § 1414[b][C]; 34 C.F.R. § 300.532[i]). These tests must be tailored to assess the particular area of need of the child, not merely provide a general intelligence quotient (34 C.F.R. § 300.532[d], 34 C.F.R. § 300.536[b]; 8 NYCRR 200.4[b][iii]). I agree with the hearing officer that the CSE ultimately conducted an adequate FBA and developed an appropriate BIP in December 2002. However, the CSE failed to conduct the behavior assessment and revise the behavior plan in a timely manner for this student whose behavior was deteriorating and having an increasingly negative impact upon his learning (i.e. increase in absences and in disruptive classroom behavior). Contrary to the hearing officer's conclusion, I find that the failure to timely and appropriately address the student's changing behavioral needs, in and of itself, denied the student a FAPE.
Petitioner asserts that her son's IEP was developed by an improperly composed CSE. IEPs are developed, reviewed, and revised at least annually (20 U.S.C. § 1414[d][A] and [A]; 34 C.F.R. §§ 300.340[a], 300.343[c], 300.346; 8 NYCRR 200.4[d], and [f]). Federal and state law require that IEP teams, or CSEs, include a regular education teacher of the student if the student is or may be participating in the regular education environment (20 U.S.C. § 1414[d][ii]; 34 C.F.R. § 300.344[a]; see also Education Law § 4402[b][a][ii]; 8 NYCRR 200.3[a][ii]). As a member of the CSE, the regular education teacher must participate in the development, review, and revision of the child's IEP to the extent appropriate (20 U.S.C. § 1414[d][C]; 34 C.F.R. § 300.346[d]). This includes assisting in determining appropriate positive behavioral interventions and strategies, supplemental aids and services, and program modifications and supports (20 U.S.C. § 1414[d][C]; 34 C.F.R. § 300.346[d] and ). Consistent with this, in its official interpretation of the regulations, the U.S. Department of Education (DOE) has made clear that a regular education teacher is required to be a member of the IEP team of a child who is, or may be, participating in the regular education environment, regardless of the extent of the participation in that environment (34 C.F.R. Part 300 Appendix A Question 23). The DOE has also advised that the regular education teacher member must participate in CSE discussions and decisions about how to modify the general curriculum in the regular classroom to ensure the student's involvement and progress in the general curriculum as well as his participation in the regular education environment (34 C.F.R. Part 300 Appendix A Question 24). The DOE has further advised that the regular education teacher member of the IEP team should be a teacher who is or may be responsible for implementing a portion of the IEP so that this team member can participate in discussions about how best to teach the child (34 C.F.R. Part 300 Appendix A Question 26).
The CSE that developed this student's IEP included a regular education teacher who would not have been responsible for implementing any portion of the student's program (Transcript pp. 91, 619). The regular education teacher who was a member of the CSE was an elementary school teacher. The CSE should have included a regular education teacher who would have or might have been responsible for implementing a portion of the IEP. The lack of a regular education teacher on the CSE deprived the child of the regular education teacher's perspective and input in the development of the child's IEP, in violation of 20 U.S.C. §§1414(d)(3) and (4), 34 C.F.R. §300.346(d) and 8 NYCRR 200.3(d). The statutorily required participation of the regular education teacher of the child in the IEP formulation is intended to facilitate the involvement and progress of the child in the general curriculum. As a member of the team developing an IEP for a child participating in the regular education environment, the regular education teacher's role includes assisting in the determination of appropriate positive behavioral interventions and strategies for the child, and in the determination of supplementary aid and services, program modifications and supports for school personnel that will be provided (see 34 C.F.R. Part 300, Appendix A, Section IV, Questions 24-26). In the instant case, the student's educational plan lacked input from his regular education teacher in the CSE discussions and decisions on how to modify the general curriculum in the regular education environment for this student, thereby denying him educational benefit.
I accordingly find that the absence of the required regular education teacher on petitioner's CSE compromised the development of an appropriate IEP for the student for the 2002-03 school year and deprived the student of educational benefits, which resulted in a denial of FAPE (see, Arlington Cent. Sch. Dist., supra; Application of the Bd. of Educ. of the Half Hollow Hills Cent. Sch. Dist., Appeal No. 03-038; Application of a Child with a Disability, Appeal No. 02-080). Under the circumstances, I must find that petitioner cannot meet its burden of demonstrating that the program its CSE recommended for the student was appropriate (School Comm. of Burlington, supra; Application of the Bd. of Educ. of the Half Hollow Hills Cent. Sch. Dist., Appeal No. 03-038; Application of a Child with a Disability, Appeal No. 02-092).
Petitioner asserts that respondent did not comply with regulations pertaining to training of staff in autistic spectrum disorders. In instances where an autistic student has been placed in programs containing students with other disabilities, or in a regular class placement, a special education teacher with a background in teaching students with autism shall provide transitional support services in order to assure that the student's special education needs are being met (8 NYCRR 200.12[a]). The evidence shows that staff was trained in autism (Transcript pp. 107-08, 111-15). However, no special education teacher provided transition support services (Transcript pp. 444, 449). I find that, while the district did train staff to address the student's needs, it did not provide the transitional support services required by the regulations.
Petitioner asserts that the hearing officer erred by refusing to subpoena the police officer who arrested her son. Petitioner wanted the police officer to testify because she felt that he had implemented a portion of her son's behavior plan (Transcript p. 417). The hearing officer refused to issue the subpoena because she was not convinced that the police officer was responsible for implementing the behavior plan and she was not convinced his testimony was relevant (Transcript pp. 417-18). Hearing officers may issue subpoenas to compel attendance of witnesses at hearings (8 NYCRR 200.5[i][iii]). Any request for a subpoena must be considered in terms of the relevancy of the requested testimony to the issue of the hearing (Application of a Child with a Disability, Appeal No. 96-3). The issue of this hearing is the appropriateness of the student's program. The evidence does not show that the police officer was involved in implementing any portion of the student's program. The only contact the student had with the police officer was his arrest, and the details of the arrest are included in documentary evidence (Exhibits F1, 11). I find that the hearing officer acted within her discretion when she refused to issue the subpoena.
Petitioner alleges that the hearing officer did not document in the record a specific request for an extension of time to issue her decision. A hearing officer must issue decisions within 45 days after a board of education receives a request for hearing (8 NYCRR 200.5[i]). Hearing officers may grant specific extensions of time at the request of either the school district or the parent (8 NYCRR 200.5[i][i]). The reason for the extension must be documented in the record (id.). The record shows that the parent's attorney requested an extension (Transcript p. 7). The hearing officer properly documented in the record the reason for the extension of time to issue the decision. Petitioner's assertion is without merit.
Petitioner asserts that her son was not placed with students who had similar needs, that she did not receive a copy of the FBA, that the district did not provide the appropriate amount of speech-language therapy, and that her son did not receive recommended occupational therapy, counseling and social skills training, or home-hospital instruction. I concur with the hearing officer's determinations regarding these claims. The hearing officer also found that the student's IEP did not include measurable goals and objectives or a transition plan. I concur with the hearing officer that the IEP did not include measurable goals and objectives or a transition plan and that the CSE failed to fully implement the IEP. I also agree with the hearing officer's order for the CSE to reconvene to develop and implement a new IEP. I deny, however, petitioner's request for compensatory education.
The Individuals with Disabilities Education Act (IDEA) requires school districts to make a FAPE available to each student with a disability who has not received a high school diploma through the age of 21 (20 U.S.C. § 1412 [a][A]; Education Law §§ 4402[a] and 4401). Although students are generally not entitled to a public education beyond that age, compensatory education may be awarded beyond age 21 if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (Burr v. Ambach, 863 F.2d 1071 [2nd Cir. 1988]; Mrs. C. v. Wheaton, 916 F.2d 29 [2nd Cir. 1990]). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]) (denying compensatory education where there was no evidence of regression due to the denial of FAPE for a student). I find, based upon my review of the entire record, that the deficiencies in the development and implementation of the student's IEP here can be remedied prior to his 21st birthday; therefore, the student is not entitled to compensatory education.
However, State Review Officers have awarded additional services to students who remain eligible to attend school and have been denied appropriate services if such deprivation of services could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Application of the Bd. of Educ. of the Barker Cent. Sch. Dist., Appeal No. 02-047; Application of a Child with a Disability, Appeal No. 02-042). Although I concur with the hearing officer's determination that the student was denied a FAPE, I do not find that the circumstances of this case, as evidenced in the record, provide me with a sufficient basis to determine what would be appropriate or equitable in terms directing what specific additional services be provided to remedy the denial of appropriate services, particularly given the fluctuating needs of this student. Therefore, with the understanding that the student's educational needs and services will be reviewed and a new IEP developed pursuant to the hearing officer's order, I strongly encourage the CSE, when determining IEP services to be provided, to consider what, if any, additional services would be necessary and appropriate to remedy the deprivation of services as identified in the hearing officer’s decision.
I have considered all of petitioner's other assertions regarding procedural violations and substantive inadequacies and find that they are beyond the scope of my review because they were not raised below or are without merit (Application of the Bd. of Educ. of the Hyde Park Cent. Sch. Dist., Appeal No. 02-024).
THE APPEAL IS DISMISSED.
Albany, New York
December 19, 2003
PAUL F. KELLY
1The IEP provided that the student attend one of the sex education seminars that took place at the school. Although the seminars took place for other students, apparently the seminar for petitioner's son and his classmates did not take place.