The State Education Department
State Review Officer

No. 04-012

                                                           

 

 

 

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, Joshua C. Chao

 

 

DECISION

 

            Petitioner appeals from an impartial hearing officer's decision  which ordered that her son’s special education program be provided at Public School 176 (PS 176), a school operated by respondent, Board of Education of the City School District of the City of New York (district), until placement in a day hospital could be effectuated.  Petitioner also appeals from the decision which ordered that the student undergo psychiatric evaluation at the day hospital and remain until successful completion of behavior modification, with or without medication, as determined by a psychiatrist.  The appeal must be sustained in part.

 

            At the onset, I will address a procedural issue.  Petitioner requests that I consider a psychiatric evaluation report (Pet. App. 1), completed on February 9, 2004, and attached to her petition. This report was not made part of the hearing record and is now offered for submission.  It is well established that documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision if such evidence was unavailable at the time of the hearing or when such evidence is necessary to enable me to render a decision (Application of a Child with a Disability, Appeal No. 03-108; Application of a Child with a Disability, Appeal No. 03-054; Application of the Bd. of Educ. of the Pawling Cent. Sch. Dist., Appeal No. 03-022; Application of a Child with a Disability, Appeal No. 02-098).  The psychiatric evaluation took place subsequent to the conclusion of the hearing and contains information relevant to the central issues raised in this proceeding.  Respondent has not raised any objection to the report being considered during my review.   I find that the psychiatric evaluation report dated February 9, 2004 will assist me in rendering my decision and I will therefore accept its submission.

 

            Preliminarily, I note that the hearing in the instant matter took place on December 12, 2003.  At the time of the hearing, petitioner's son was 13 years old and not attending school.  Up until November 3, 2003, the student had been attending a 6:1+1 special education class at respondent’s PS 168 at Intermediate School 183 (IS 183).  On November 3, 2003, the student left school grounds unattended, crossed four lanes of traffic, walked three blocks down to a subway station, and lay across the subway tracks (Transcript p. 27).  Petitioner's son was taken to a medical and mental health center for observation after being found on the subway tracks by a police officer (Exhibits A, B).  Petitioner removed her son from PS 168 after the November 3, 2003 incident (Exhibit D) and requested an impartial hearing on November 20, 2003 (Exhibit E).  At the hearing petitioner sought a “Nickerson Letter” for placement in a private school and a determination that the programs at PS 168 and PS 176 were not appropriate for her son.  The hearing officer found PS 176 to be an appropriate interim setting and ordered that petitioner’s son undergo psychiatric evaluation at a day hospital and remain until successful completion of behavior modification, with or without medication, as determined by a psychiatrist.  

 

            Petitioner's son is predominately nonverbal (Exhibit J) with a diagnosis of autism and moderate mental retardation (Pet. App. 1).  The student's classification of autistism (Exhibit 1) is not in dispute.  The record reveals petitioner's son was classified at an early age due to severe language deficits, delays in cognitive development and self-help skills, and a limited ability to interact with others (Transcript p. 33; Exhibits 2, H; Pet. App. 1).  In addition, as a young child he exhibited tantrum behavior, hyperactivity and features of an attention deficit disorder (ADD) (Exhibit H). 

 

During the 2002-03 school year the  district conducted several evaluations of the student, in part to determine his need for an augmentative communication device.  An educational evaluation dated June 9, 2003 indicated the student had developed into a strong adolescent who required the assistance of a male paraprofessional for safety reasons (Exhibit H).  In class, the student reportedly demonstrated inappropriate behaviors and was difficult to handle.  His resistance to teacher directives, as well as his tantrums and aggressive behavior interfered with his ability to learn (Exhibit H).  Due to deficits in expressive language and socialization the student did not participate in group activities.  According to the evaluator, behavior modification was used throughout the student's school day and a behavior management plan was in effect (Exhibit H).  The educational evaluation indicated that petitioner's son benefited from continuous modeling and constant prompting, and he required individualized attention to engage in activities (Exhibit H).

 

            A teacher report, dated June 5, 2003, indicated that the student engaged in  behaviors such as hitting, inappropriate touching of himself, throwing objects in the classroom and resistance to teacher direction (Exhibit 4).  His teacher also noted that the student was reluctant to write, and described his writing as illegible and slow, with poor letter formation.  A comprehensive teacher report dated December 6, 2002 (attached to the June 5, 2003 report) indicated the student had difficulty performing self-help skills that include a fine motor component (id.).  This report revealed the student was nonverbal and communicated through touch, sounds, gestures, basic sign and picture symbols.  He was able to establish eye contact.  The student demonstrated functional receptive language skills, estimated to be at the first grade level.  Expressive language skills reportedly consisted of one-word utterances.  The teacher opined that the student touched his private parts as a means of gaining attention.  He became restless in response to inactivity.  Length of time on task was reported to be 5-15 minutes and the student could tolerate change without notice.  The student would reportedly resist teacher directives by walking out of the room. The student’s teacher suggested he would benefit from more individual speech therapy.  According to the student’s classroom teacher, the student benefited from the use of a visual schedule and responded well to praise, positive reinforcement and food.  He also reportedly enjoyed physical contact as a social reinforcer.

 

            On November 4, 2003 the Young Adult Institute (YAI) conducted a psychological evaluation of the student, the purpose of which was to assess the student’s cognitive and adaptive functioning (Exhibit K).  The background history was elicited from the student’s mother.  She revealed that the student liked trains.  He engaged in repetitive behaviors, such as hand flapping and rocking, and became easily upset when routines were broken.  The student’s mother reported that he frequently put his hand down his pants in public, ran away from her and wandered off, urinated in his bed and walked out of the house alone.  The evaluator observed that the student made unintelligible sounds, laughed for no apparent reason and put his hands down his pants.  She administered the Stanford-Binet Intelligence Scale-4th Edition in a modified order.  The student received a test composite score of 36, placing him below the first percentile when compared to same age peers and falling within the moderate to severe range of mental retardation.  The student demonstrated neither significant strengths nor weaknesses during testing.  The student’s performance on the Vineland Adaptive Behavior Scales–Interview Edition (Vineland) confirmed weaknesses in communication, daily living skills, and socialization. The student could point to at least one major body part, demonstrate understanding of the meaning of yes and no, put his shoes on the correct feet without assistance and imitate simple movements from a model.  The student could not indicate a preference when given a choice, pronounce fifty recognizable words, feed himself with a fork, care for all toileting needs without assistance, or dress himself independently.  The student’s composite score on the Vineland was below the first percentile.  Among other things, the evaluator recommended exploring schools specializing in autism.

 

            An augmentative communication and assistive technology evaluation was conducted during four sessions between October 2002 and February 2003 (Exhibit J).  The evaluator reported that the student was ambulatory, predominantly nonverbal, and attempted to communicate his basic needs and wants through a variety of modes, including facial expressions, unintelligible vocalizations, a minimal amount of sign language, gestures and pointing.  The evaluator reported that the student exhibited an understanding of cause and effect, and object permanence, and was able to follow simple one-step directions.  The student could express basic semantic notions such as negation, rejection, recurrence and request.  He exhibited fleeting eye contact.  According to the evaluator the student demonstrated a fair attention span and showed pleasure when involved in areas of interest.  The evaluator noted the student's ability to focus, cooperate and make transitions improved when he was aware of a routine and behavioral expectations.  The evaluator described the student as motivated to communicate and learn.  The evaluator recommended an electronic augmentative communication device, specifically a DynaMyte 3100.  During the assessment, the student reportedly spontaneously used up to three symbol messages, with minimal prompting, to request items within an activity (Exhibit J). 

 

In April 2003 Sinergia, Inc., the agency responsible for providing the student’s medicaid service coordination, conducted an annual review of the student’s individualized service plan (ISP) (Exhibit L).  The plan revealed that in addition to his school program the student received speech therapy/assistive technology services from the Young Adult Institute (YAI) for one thirty-minute session per week as well as one thirty-minute session per week of behavior therapy from the same agency.  The student also received the services of a home health aide from 3:00-7:00 pm daily, as well as respite services from 5:30-8:30 pm.  The student’s ISP described him as friendly, loving, curious and helpful. The report indicated that the student could dress himself independently, clean his room, put away his clothes and feed himself.  The student reportedly enjoyed playing video games, bowling and going to the beach and to amusement parks.  The plan quoted his teacher as saying petitioner's son was a good student with the exception of being “hyper” once or twice a week.  She reported that the student had demonstrated progress in writing and learning appropriate physical contact with others.  The student’s behavior therapist reportedly discussed appropriate touch and appropriate public behavior with the student.  The ISP indicated the student’s mother wanted him to learn how to communicate more effectively, how to cross the street, and how to discriminate between public and private behavior.

 

            For the 2003-04 school year, respondent's Committee on Special Education (CSE) met on June 25, 2003 and recommended that petitioner's son be classified as autistic and enrolled in a 6:1+1 specialized instructional environment-III (SIE-III) program in PS 168 (Exhibits 1, J).  The CSE also recommended that the student utilize an augmentative communication device, receive 30 minutes of group speech-language therapy twice a week, and be assigned a 1:1 crisis management paraprofessional and a 1:1 special transportation paraprofessional for transportation to and from school (Exhibit 1).

 

             The impartial hearing was held on December 12, 2003.  At the hearing, petitioner and another family member testified that the PS 168 placement was not meeting the student’s behavioral and academic needs (Transcript pp. 9, 10, 18, 31, 32).   Respondent’s representative testified that respondent had identified an alternative location, PS 176, for delivery of the student’s program.  The record reflects that petitioner requested a transfer from PS 168 (Exhibit D) and respondent contends that the move to PS 176 was in accordance with the June 25, 2003 IEP recommended placement of the student in a self-contained, highly structured environment, with, inter alia, a staffing ratio of 6:1 + 1, which could be provided at PS 176.   She further testified that she was advised that PS 176 was a “nationally recognized” “model” program for autistic children and that it was the “best program for autistic children in the entire city” (Transcript p 12).  In a decision dated January 15, 2004, the hearing officer found that the student's placement at PS 168 was not appropriately addressing the student's behavior or “advancing his educational performance.” 

 

        The hearing officer ordered an interim placement in a 6:1+1 special education program at respondent's district PS 176 until a day hospital placement could be implemented.  The hearing officer further ordered that petitioner's son undergo a psychiatric evaluation in a day hospital setting to determine how to modify the student's behavior, and that the student remain at the day hospital for his education until behavior modification, with or without medication, was deemed successful by the hospital psychiatrist.

 

The psychiatric evaluation report submitted on appeal reveals that the student returned to school during the latter half of January 2004 and has been attending PS 176 (Pet. App. 1).  The report states that, since the student’s move to PS 176, his mother reported that her son is willing to get on the bus, that she has had no complaints about his behavior, and that she would like him to continue at PS 176.  Further, the report states that the day hospital placement is not warranted; that there appears to be “significant improvement in his behavior since transfer to PS 176;” and that he should continue in the PS 176 placement.  Lastly, the psychiatric evaluation does not recommend consideration of a trial of medication unless behavior problems resurface at PS 176.

 

            Petitioner appeals the determination below, contending that the hearing officer  erred by not finding it was inappropriate to move the student’s program from PS 168 to PS 176 without a CSE meeting to develop a new IEP,1 and erred in determining that the student be placed in a day hospital and could not return to PS 176, or to any other district school, until a psychiatrist at the day hospital deemed such return appropriate.2  Petitioner contends, in her petition for review, that at PS 168 her son was not properly supervised or provided services by adequately trained individuals. She states that her son requires an intensive and systematic program of education that will develop his communication and functional behavioral skills and that he also requires the appropriate use of adaptive communication devices.  As for relief, petitioner requests that her son be placed at a private school via a "Nickerson Letter", that her son receive compensatory education services, and that applied behavioral analysis (ABA) therapy be incorporated as part of her son's program.

 

            The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1400 et seq.) is to ensure that children with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]).  A FAPE includes special education and related services provided in conformity with an IEP (20 U.S.C. § 1401[8]), and it is the student's IEP that tailors a student's program to his or her unique needs (Bd. of Educ. v. Rowley, 458 U.S. 176, 181 [1982]).  A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

 

In order to meet its burden to show that it offered to provide a student with a FAPE, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA and (b) that the individualized education program (IEP) that its CSE developed for the student through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; M.S., 231 F.3d at 102; Application of a Child with a Disability, Appeal No. 02-025).  Procedural flaws do not automatically require a finding of a denial of FAPE, but procedural inadequacies that individually or cumulatively result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP, clearly constitute a denial of FAPE (W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D. Conn. 2001]; see Arlington Cent. Sch. Dist. v. D.K., ___ F.Supp.2d ___, 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; Evans v. Bd. of Educ., 930 F.Supp. 83, 93; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]; Application of a Child with a Disability, Appeal No. 02-041; Application of a Child with a Disability, Appeal No. 02-015).  The program recommended by the CSE must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

 

            An appropriate educational 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 a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, 01-109; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).

 

The Regulations of the Commissioner of Education require an individual evaluation to include a functional behavioral assessment (FBA) for a student "…whose behavior impedes his or her learning or that of others, as necessary to ascertain the physical, mental, behavioral and emotional factors which contribute to the suspected disabilities" (8 NYCRR 200.4[b][1][v]; Application of a Child with a Disability, Appeal No. 03-095; Application of a Child with a Disability, Appeal No. 02-075; Application of a Child with a Disability, Appeal No. 01-094).  Further, the IDEA and the Commissioner's Regulations mandate that a CSE must consider, when "appropriate," strategies and supports to address student behavior that impedes his or her learning or that of others (20 U.S.C. § 1414[d][3][B][i]; 34 C.F.R. § 300.346[a][2][i]; 8 NYCRR 200.4 [d][3][i]).  “A failure to, if appropriate, consider and address these behaviors in developing and implementing the child’s IEP would constitute a denial of FAPE to the child" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 38).  FBAs are intended to provide the CSE with information regarding why the child engages in the behavior, when the child is most likely to demonstrate the behavior, and what situations the behavior is least likely to occur (see Office of Vocational and Educational Services for Individuals with Disabilities [VESID], Policy 98-05, "Guidance on Functional Behavioral Assessments for Students with Disabilities" [July 1998]).

 

I will now address petitioner’s request for a "Nickerson Letter".  In the instant case, petitioner does not assert that her son was evaluated or offered a placement in an untimely manner.  A "Nickerson Letter" is a letter from the board of education to a parent authorizing the parent to immediately place the child in an appropriate special education program in any state-approved private school, at no cost to the parent (see Jose P. v. Ambach, No. 79 Civ .270 [E.D.N.Y. Jan. 5, 1982]).  The remedy of a "Nickerson Letter" is intended to address the situation in which a child has not been evaluated or placed in a timely manner (see Application of a Child with a Disability, Appeal No. 02-075; Application of a Child with a Disability, Appeal No. 00-092).  The facts before me do not raise the issue of an untimely placement or evaluation; accordingly, I find petitioner's reliance on Jose P. is misplaced, and she is not entitled to the requested relief.

 

            Petitioner also contends that her son does not need to be placed in a day hospital setting for the purpose of undergoing psychiatric evaluation and behavior modification.  An impartial hearing officer may order that a child be evaluated at school district expense (8 NYCRR 200.5[g][2]).  However, the authority to order that an evaluation be performed is not unlimited (Application of a Child with a Disability, Appeal No. 96-13; Application of a Child with a Disability, Appeal No. 93-14).  Under the circumstances here, I need not determine whether the hearing officer’s order that the student undergo psychiatric evaluation was appropriate at the time it was issued, because a psychiatric evaluation took place on February 9, 2004, subsequent to the order, and the parties appear to consider it appropriate (Pet. App. 1).  Therefore, that portion of the order directing a psychiatric evaluation has become moot and is hereby annulled.  

 

The portion of the hearing officer’s order that directed placement at the day hospital must also be annulled on the grounds that circumstances now do not provide a basis for such a placement, and because the hearing officer exceeded his authority in issuing such an order. The post-hearing psychiatric evaluation determined that the student had shown a significant improvement in his behavior since his transfer to PS 176 and recommended that the student not be placed in a day hospital (Pet. App. 1).  Respondent concedes that petitioner's son does not belong in a “psychiatric hospital” and requests that I find PS 176, not the day hospital, to be the appropriate placement for the student (Ans. ¶ 110).  I find that placement in a day hospital as ordered by the hearing officer is inappropriate and not supported by the record particularly in light of the changed circumstances.  As to the authority of the hearing officer to issue this order, I am troubled by the hearing officer's order that the student “remain at the day hospital for his education until behavior modification, with or without medication, is deemed successful by the hospital psychiatrist.” I find that the hearing officer exceeded his authority by ordering an impermissible placement, i.e., indefinite placement in a day hospital, and impermissibly usurped the authority of the CSE.  The appropriateness of an educational program and placement is subject to review, revision and change by the CSE as least annually, or sooner if appropriate (34 C.F.R. § 300.343[c]; 8 NYCRR 200.4[f]).  As to the implication in the order that the student perhaps be medicated, I find that the hearing officer exceeded his authority because such medical treatment as medication is "within the province of parents, not school officials or hearing officers" (South Eastern Sch. Dist., Appeal No. 1381, 39 IDELR 258 [Penn. State Educ. Agency, 2003]; Letter to Hoekstra, 34 IDELR 204 [OSEP 2000 “The decision to prescribe any medication is the responsibility of medical, not educational professionals, after consultation with the family and agreement on the most appropriate treatment plan"]).

 

            Petitioner next contends that respondent's recommended placement at PS 168 was not appropriately addressing her son's management needs given the November 3, 2003 incident. I have already mentioned, supra, that the hearing officer determined that the program at PS 168 was inappropriate and that determination was not appealed and is therefore final.  However, the student’s 2003-04 IEP warrants further discussion.  

            The record confirms that petitioner's son's behavior at PS 168 significantly impeded his learning.  The student reportedly "sometimes walks out of the classroom".  He is a big student who can become suddenly aggressive.  He has thrown books, tables and chairs around the classroom and has physically assaulted peers.  The student reportedly is very resistant to teacher directives and does not work in large groups (Exhibit H). Also, petitioner sought permission to lock the fire escape and padlock her doors because her son tries to climb out of the window and walk out the door at home (Transcript pp. 49, 51).  The record also indicates areas for potential positive behavioral interventions and supports such as the student's fascination with trains and collecting cards (Exhibit K).  The student responds well to praise, food, and positive reinforcement (Exhibit H).

A review of the record reveals that the CSE failed to conduct the necessary evaluations to determine the student’s needs.   Here there is insufficient evaluation of the student’s behavioral needs. An FBA should be an integrated part of the IEP process when students demonstrate behaviors that interfere with learning (See VESID publications Guidance on Functional Behavioral Assessments for Students with Disabilities – July 1998; Sample Individualized Education Program and Guidance Document, Attachment 2 – December 2002).  In addition, the regulations require that a reevaluation of a student be sufficient to determine the student’s individual needs (8 NYCRR 200.4[b][4]). The district’s records were replete with information regarding the student’s inappropriate behavior and the fact that it interfered with his ability to learn (Exhibits 1,2, 3, 4, H, I, J).  Yet, inexplicably, no FBA was conducted.

The student's June 25, 2003 IEP does contain a behavioral intervention plan (BIP).  However, this BIP does not adequately address his management needs.  The IEP describes the student as not participating in activities, becoming upset, and leaving the location without permission.  The student is expected to participate in activities and remain in his location (Exhibit 1).  The strategies listed in the student's BIP include lessons to address his academic needs, small group activities to improve socialization skills, and counseling to address his emotional needs (Exhibit 1).  However, the student's BIP does not contain strategies to address the student's interfering behavior, such as hitting or ignoring teacher directives.  I find that the student's IEP does not adequately address the student's management needs.

 

            In addition, I find that the student's IEP has other shortcomings including, but not limited to, short-term objectives that are not measurable. In the official interpretation of its regulations, the U.S. Department of Education has indicated that an IEP team must develop measurable annual goals for a student, and may then develop either measurable intermediate steps (short-term objectives) or major milestones (benchmarks) that will enable educators and the student's parents to monitor the student's progress during the year. Short-term objectives generally break down the skills described in the student's annual goals into discrete components, while benchmarks establish expected performance levels at regular intervals (34 C.F.R. Part 300, Appendix A, Section I, Question 1).  Here, for example, petitioner's son has a mathematical short-term objective of "put[ting] objects in order or sequence" for an annual goal of improving and developing skills in mathematics (Exhibit 1).  I find that this short-term objective is not measurable as it cannot be determined whether the student has completed the objective in terms of accuracy and/or succession of trials.  The student's other short-term objectives have the same shortcomings.  Furthermore, I find that some of the short-term objectives do not appear to be appropriate in scope for this student.  For example, the student's IEP contains an annual goal of improving and developing skills in the mathematical process with a short-term objective that the student will "[t]alk about mathematics in [his] everyday life" (Exhibit 1).  Not only do I find that this short-term objective is not measurable, but I also find that this objective is not appropriate for this student because he is reportedly nonverbal (Exhibit 1). 

 

Addressing another matter, the record reveals that the student is reluctant to write and that his writing is illegible and slow, with poor letter formation (Exhibit 4).  His letters reportedly “float” above and below the lines. In addition the student reportedly cannot feed himself with a fork, dress himself completely or care for his own toileting needs without assistance (Exhibit K).  He engages in inappropriate touching of himself and others, and he appears to enjoy physical contact as a social reinforcer (Exhibit 4).  When viewed in combination, this information suggests that the student may have unmet fine motor and/or sensory needs and that an occupational therapy evaluation may be warranted.

 

As to the student’s speech and language needs, the student’s IEP indicated that he would receive speech and language therapy twice per week for 30 minutes each in a group of three (Exhibit 1).  The student’s teacher recommended additional individualized speech sessions for the student (Exhibit 4).  The speech therapist/assistive technology practitioner that evaluated the student described him as motivated to communicate (Exhibit 5).  It appears that the student had recently been provided with an augmentative communication device.  Given the student’s motivation to communicate, his sometimes inappropriate means of communicating (hitting, running away), his recent acquisition of an augmentative communication device, and his teacher’s recommendation for more speech therapy, it appears this student’s speech and language needs have not been adequately addressed.3

 

As a final matter for consideration, respondent asserts that the student is entitled to compensatory educational services and additional educational services.  Compensatory education is instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction.  It may be awarded 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 (Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Application of Bd. of Educ. of the Barker Cent. Sch. Dist., Appeal No. 02-047).  There is no evidence of either in the record.  Moreover, there is nothing in the record to show that the student is no longer eligible to receive instruction.

 

While compensatory education is a remedy that is available to students who are no longer eligible for instruction, I note that 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 instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030).  Here, the record does not clearly indicate what additional services are needed to remedy deprivation of services caused by the denial of a FAPE to this student.  Accordingly, I cannot determine from the record what additional services may be warranted in this case.  Therefore, I direct the CSE, when it reconvenes, to consider whether any additional services are necessary to make up for educational services not provided between the time the student left PS 168 and began attending PS 176, and to consider whether additional services are appropriate to make up for any deprivation of services while the student attended PS 168 during the 2003-04 school year.  If it is determined that the provision of additional services is appropriate, then those services should be provided.

 

            I have considered all of petitioner’s contentions.  However in light of my determination herein, it is not necessary to discuss the other issues raised by petitioner.

 

            THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

            IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent that he ordered petitioner's son to be placed in a day hospital and remain at the day hospital for his education until behavior modification, with or without medication, is deemed successful by the hospital psychiatrist; and

 

            IT IS FURTHER ORDERED, unless the parties otherwise agree, that respondent convene a CSE meeting, within 30 days from the date of this decision, and do  the following:  review the appropriateness of his current placement at PS 176 for the remainder of the 2003-04 school year; assess whether the student is in need of additional education services because he was denied a FAPE;  and prepare an appropriate IEP consistent with the requirements of 8 NYCRR 200.4 and 8 NYCRR 200.13; and

 

IT IS FURTHER ORDERED, unless the parties otherwise agree, that respondent shall conduct an FBA of the student before the CSE convenes, and at the CSE meeting that I am directing to convene in 30 days, the CSE shall include in the student's IEP appropriate strategies, including positive behavioral interventions and supports, to address the interfering behaviors identified in the FBA; and

 

IT IS FURTHER ORDERED, unless the parties otherwise agree, that within 30 days from the date of this decision respondent shall conduct an occupational therapy evaluation focusing on the student's difficulty with writing and performing self-help tasks with a fine motor component; and

 

            IT IS FURTHER ORDERED, that upon convening, that the CSE shall review the student's speech and language needs and consider supplementing services to meet these needs, and the CSE shall ensure that the student has been provided any assistive technology that the CSE has recommended.

 

Dated:

Albany, New York

 

__________________________

 

April 23, 2004

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

1  It appears from the record that the parties have agreed to PS 176 as a placement pending resolution of the issues raised herein.  As a result, petitioner's assertion that the change in location of services from PS 168 to PS 176 constituted a change in placement requiring full procedural safeguard protections is moot.  Therefore, I need not determine whether the change in location, given the facts in the instant case, materially or substantially altered the student's program (Letter to Fisher, 21 IDELR 992 [OSEP 1994]).

 

2  Petitioner also alleges that the hearing officer erred in not finding the student's program at PS 168 at IS 183 inappropriate. The assertion lacks merit because the IHO determined that the PS 168 program was inappropriate (Hearing Officer Decision p. 6).  Respondent has not appealed that determination; therefore, that determination is final and not subject to review (34 C.F.R. § 300.510[a]).

 

3  Respondent has conceded that no special education teacher participated in the June 25, 2003 CSE meeting (Ans. ¶ 76). The IEP was therefore formulated by an improperly composed CSE.  The harm is obvious as evidenced by the resulting IEP.  Given the lack of appropriate goals and objectives, as well as lack of adequate behavior intervention strategies, I find that the failure to have a special education teacher on the CSE which developed the June 25, 2003 IEP is a procedural error which denied the student a FAPE in that the formulation of the IEP was improper and resulting IEP was not reasonably calculated to provide educational benefit.