The University of the State of New York Seal
The State Education Department
State Review Officer

No. 06-017

 

 

Application of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF BUFFALO, for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

 

 

Appearances:
Hon. Alisa A. Lukasiewicz, Corporation Counsel, attorney for petitioner, Denise M. Malican, Esq., of counsel

Law Office of H. Jeffrey Marcus, attorney for respondent, H. Jeffrey Marcus, Esq., of counsel

DECISION

Petitioner, the Board of Education of the City School District of the City of Buffalo, appeals from a decision of an impartial hearing officer which determined that the educational program recommended by its Committee on Special Education (CSE) for respondent's son for the 2004-05 school year was not appropriate.  The appeal must be sustained in part.

At the commencement of the impartial hearing in October 2005, respondent's son was 15 years old and a resident at a psychiatric unit of the Erie County Medical Center (ECMC) (Oct. 31, 2005 Tr. p. 128).  The record indicates that the student has had many diagnoses including: attention deficit hyperactivity disorder (ADHD), oppositional defiant disorder (ODD), bipolar disorder, and Asperger's disorder (Dist. Ex. 15 at p. 1).  The student's eligibility for special education services and his classification as a student with an emotional disturbance (ED) (see 8 NYCRR 200.1[zz][4]) are not in dispute in this appeal.

Respondent's son has a history of psychiatric hospitalizations (Dist. Ex. 15 at p. 1), and a history of not attending or not participating in his special education programs.  The student was classified by petitioner's CSE as a student with ED when he entered kindergarten   (Dist. Exs. 14 at p. 1, 18 at p. 3, 22 at p. 2).  Due to behavior problems and tantrums, the student was referred by petitioner to the Stanley G. Falk School (Falk) midway through his kindergarten year where he remained for approximately two years (Dist. Exs. 18 at p. 3, 22 at p. 2).  The student moved to Iowa with his family in 1997, when he was seven years old (Dist. Ex. 22 at p. 2).  Following a psychiatric hospitalization in Iowa, the student was reportedly placed in two different short-term intensive treatment programs and subsequently placed in residential treatment due to physical aggression and temper tantrums (Dist. Exs. 22 at p. 2, 32 at p. 2).  In February 2001, after discharge from residential treatment, the student entered a day treatment program that reportedly addressed his therapeutic and educational needs (Dist. Ex. 32 at pp. 1-3).  He was reported to be an active participant in the program and his attendance was consistent (Dist. Ex. 32 at p. 2).  He was being treated with antipsychotic medications during this time and was reported to have done well academically and behaviorally in the classroom (Dist. Ex. 32 at p. 3).  In December 2001 the student returned to petitioner's district and was reportedly enrolled in petitioner's school 72 in January 2002 (Dist. Ex. 22 at p. 1).

  Administration of the Stanford-Binet Test of Intelligence - Fourth Edition by the petitioner's school psychologist in March 2002, when the student was 11 years and five month old, yielded standard scores (and percentiles) of 104 (60th) in verbal reasoning, 100 (50th) in abstract visual, 91 (29th) in quantitative reasoning, and 64 (1st) in short term memory (Dist. Ex. 18 at p. 1).  A composite score was not calculated (id.).  Results of the Behavior Assessment System for Children:  Teacher Rating Scales (BASC) suggested a high degree of social withdrawal from others (Dist. Ex. 18 at p. 3).  The student's teacher reported that the student's classwork was completed well and that he had few behavior problems but exhibited social withdrawal (Dist. Ex. 18 at p. 4).  The evaluator was unable to complete administration of the Achenbach Youth Self Report for Ages 11-18 (YSR) due to the student's perseveration, extensive verbal elaboration, and tangential conversation (Dist. Ex. 18 at p. 3).  The evaluator opined that the student required a very controlled, safe, structured, and predictable learning environment (Dist. Ex. 18 at p. 5).

An educational evaluation was also conducted on February 27, 2002 (Dist. Ex. 21 at p. 1).  The evaluator noted that the student had achieved a broad reading standard score of 95, a broad math standard score of 85, a broad knowledge standard score of 91, and a broad language standard score of 65 on the Woodcock Johnson Tests of Achievement (WJ-R) (id.).  When observed by the evaluator, respondent's son was working attentively and following directions in his classroom, but became very agitated in the lunchroom, grabbing the evaluator's arm and twisting it when she touched him to get his attention (Dist. Ex. 21 at pp. 2-3).

The student was suspended on March 15, 2002 for overturning furniture and for physical aggression toward several teachers (Dist. Ex. 53 at p. 2).  The CSE convened on March 22, 2002 for a nexus determination and development of a behavioral intervention plan (BIP) (Dist. Ex. 10 at pp. 1, 7).  The student reportedly did not return to school for the duration of the 2001-02 school year (Dist. Ex. 22 at p. 1).  The record does not indicate whether home services were provided during the student's absence.

The student was subsequently placed at Gateway-Longview Day School/Treatment Program (Gateway) in July 2002 (Dist. Ex. 31 at p. 1).  A progress report for the 2002-03 school year indicated that his progress was unsatisfactory and that he required continued intervention to develop age appropriate social skills and to reduce his anxiety surrounding social skills (Dist. Ex. 60).  The student reportedly disregarded the expectations of the program, and would lie on the floor in the school hallway or the classroom for the entire day and refuse to participate (Dist. Ex. 31 at p. 1).  Respondent reported that since April 2003 her son had been defiant and disrespectful at home (id.).

On July 24, 2003, when the student was 12 years and nine months old, he was admitted to the Erie County Medical Center Adolescent Psychiatric Unit (ECMC) (Dist. Ex. 31 at p. 1).  While hospitalized, the student received an additional diagnosis of Asperger's syndrome (Dist. Exs. 31 at p. 1, 71 at p. 3).  A specific modified behavior contract was created which rewarded him for increased time spent outside of his hospital room (Dist. Ex. 71 at p. 3).   Antipsychotic medication was prescribed for the student at ECMC, resulting in a decrease or elimination of many of the symptoms he had exhibited upon admission (Dist. Ex. 31 at p. 1). 

Respondent's son was discharged from ECMC in time to begin the 2003-04 school year at Gateway (Dist. Ex. 31 at p. 1).  The student reportedly was productive during the first few days in school but then began refusing to attend or participate in classes (Dist. Ex. 31 at p. 1).  He continued this behavior until the middle of the fall semester at which time the student started attending classes but completed minimal work (Dist. Ex. 31 at pp. 1-2).  The student was assigned an individual aide in March 2004 (Dist. Ex. 31 at p. 2).  In March 2004, the student also began to receive services from Mid Erie Counseling and Treatment Services (Mid Erie) through the home and community based waiver initiative (Nov. 10, 2005 Tr. p. 15).  The home and community based waiver initiative is described as a program that provides intensive services to children who are mentally ill or severely emotionally disturbed in order to avoid hospitalization or residential placement (Nov. 10, 2005 Tr. pp. 10-11).  Respondent and her son received family support, in-home counseling, respite care, crisis response, and care coordination (Nov. 10, 2005 Tr. p. 11).  Additionally, the student was provided with a "skill builder" (Nov. 10, 2005 Tr. pp. 19-22).  The "skill builder" is described as an individual placed in the student's home to assist the student with homework completion and to help facilitate the student's goals in socialization and family relationships (Nov. 10, 2005 Tr. p. 20).  There was reported to be a notable improvement in the student's behavior and willingness to complete schoolwork after the individual aide and the in-home supports were provided (Dist. Ex. 31 at p. 2; Nov. 10, 2005 Tr. pp. 20-22). 

In April 2004, when the student was 13 years old, a psychoeducational review was requested by respondent and the student's support team at Gateway to assist with the student's educational treatment plan, transition plan, and with referrals to outside support services (Dist. Ex. 17 at p 1).  Results of the Vineland Adaptive Behavior Scales indicated that the student was functioning well below average in all areas except daily living skills, which were reported by respondent to be slightly below average (Dist. Ex. 17 at pp. 2-3).  The evaluator's recommendations included a speech language evaluation, an occupational therapy evaluation, consideration of a referral to 1:1 remedial reading support for the student to help him complete assignments and to improve his writing skills, and development of a specific plan to improve his academic functioning which included opportunities for breaks, school jobs, concrete incentives, and modified assignments (Dist. Ex. 17 at pp. 3-4).

In July 2004, the student again began to refuse to go to school or to participate when he was there (Dist. Ex. 31 at p. 1).  He was absent for 13 days of the summer 2004 education session at Gateway and rarely participated in class (Dist Ex. 24 at p. 2).  Respondent and the student's individualized care coordinator reported that respondent's son had regressed and was at risk of residential placement (Dist. Ex. 24 at p. 2).  In September 2004 the student entered ninth grade and was placed in a 6:1+1 classroom at Gateway (Dist. Ex. 24 at p. 2).  He received related services of individual counseling, group counseling, art therapy, and speech language therapy (Dist Exs. 24 at p. 2, 4 at pp. 7-8).  The student also continued to receive crisis intervention services, care coordination services, and counseling services from Mid Erie (Dist. Ex. 24 at p. 3).  He reportedly was unresponsive in his classes at Gateway, refused to follow his individualized program, and had incompletes in all subject areas (Dist. Ex. 68 at p. 1).

Petitioner's CSE convened for the student's annual review on October 26, 2004, when the student was 14 years old (Dist. Ex. 4 at p. 1).  The student's individualized care coordinator reported that the student's attendance and difficulties with nonparticipation in class were discussed at the meeting and petitioner consented to initiate referrals to day treatment programs for the student (Nov. 10, 2005 Tr. pp. 30-33).  It is not clear from the record whether the referrals were made at that time. 

On December 3, 2004, the student was verbally and physically aggressive with his individual aide (Dist. Ex. 68 at p. 3).  He refused to participate in the school's required rectification process for this incident and subsequently refused to return to school (id.).  The record indicates that petitioner provided home and hospital instruction to the student during the third and fourth marking periods of the 2004-05 school year (Dist Ex. 57).  The student received grades in the 80s and 90s for the third marking period and grades in the 70s and 80s for the fourth marking period (Dist. Ex. 57).  The record does not indicate whether the student received home and hospital instruction during the summer and fall of 2004.

Following the incident involving the individual aide, the student's education team at Gateway convened on December 22, 2004 to develop an intervention plan to address the student's attendance problem and to discuss whether Gateway continued to be an appropriate placement for him (Nov. 10, 2005 Tr. pp. 36-38).  The consultant psychologist from Gateway opined that the student needed to be placed outside of his home "where they would be able to control his school attendance . . . so that he was receiving an education" (Nov. 10, 2005 Tr. p. 50).

In January 2005, the student was referred to petitioner's CSE for a reevaluation because he had not been participating in his educational placement for approximately two years (Dist. Exs. 16 at p. 1, 3 at p. 1).  Petitioner's CSE convened on January 28, 2005 and included the associate director of Gateway and the student's homeroom teacher from Gateway, as well as petitioner's educational specialist and school psychologist (Dist. Ex. 3 at p. 11).  Respondent was not in attendance (Dist. Ex. 3 at p. 11).  The CSE determined that the student needed to attend and participate in classes (Dist. Ex. 3 at p. 2) and recommended placement in a 6:1+1 special education classroom (Dist. Ex. 3 at p. 7).  CSE meeting notes also reference the need for a BIP and an individual aide (Dist. Ex. 3 at p. 2).  Recommended related services included individual and group speech language therapy, individual and group counseling, crisis intervention, and family counseling (Dist. Ex. 3 at p. 8).  These recommendations were not changed from the October 26, 2004 IEP reportedly due to respondent's absence from the CSE meeting (Nov. 2, 2005 Tr. p. 101).

A psychological consultation occurred on January 28, 2005 (Dist. Ex. 16 at p. 1).  Petitioner's psychologist recommended that respondent work with the student's psychiatrist to secure hospitalization and that she consider filing a "person in need of supervision" (PINS) petition (Dist. Ex. 16 at p. 2).  The psychologist also reported that referrals to other day treatment programs had been initiated by petitioner to address the student's mental health and educational needs (id.).  The psychologist also recommended that the CSE continue to classify the student as ED (id.).  She opined that although the student had a diagnosis of Asperger's syndrome, the history and scope of his behavioral difficulties were not fully explained by the Asperger's diagnosis and that the student's mental health needs were primary at that time (id.).

On February 24, 2005 the student was again admitted to the ECMC Adolescent Psychiatric Unit because of increasing physically threatening behavior toward respondent (Dist. Ex. 71 at p. 3).  He was continuing to refuse to attend his program at Gateway and was refusing to take his medication (id.).  Following a physical attack on his roommate at ECMC the student was moved to a private room  (Parent Ex. 21 at p. 2).  The student remained seclusive throughout most of his hospital stay, although with prompting he occasionally participated in the education program provided (Dist. Ex. 71 at p. 4).  At the time of the student's admission to ECMC it was planned that the student would be discharged to the Children's Psychiatric Center (CPC) (Dist. Ex. 71 at p. 6).  CPC however expressed concern that it could not provide appropriate care given the student's developmental disability and symptoms consistent with Asperger's and would not accept him (id.).

While the student was hospitalized at ECMC, a psychological evaluation was conducted by the Western New York Developmental Disabilities Services Office (DDSO) to confirm the student's diagnosis of Asperger's syndrome (Dist. Exs. 15 at p. 1,71 at p. 4).  The student's overall scores on the Asperger Syndrome Diagnostic Scale (ASDS), the Gilliam Asperger's Diagnosis Scale (GADS), and the Gilliam Autism Rating Scale (GARS) confirmed that Asperger's syndrome was a valid diagnosis and that the student also had emotional problems (Dist. Ex. 15 at p. 3).  The psychologist stated that the student was "very bright" and that he required an educational program appropriate for his level of intelligence (id.).  He opined that the student's progress was dependant more on the resolution of his emotional problems than on his developmental disability (id.).  Confirmation of the student's diagnosis of Asperger's syndrome determined his eligibility for services from the New York State Office of Mental Retardation and Developmental Disabilities (OMRDD) but "negated" a discharge to a residential treatment facility such as CPC (Dist. Ex. 71 at p. 6).

Additionally, in July 2005, the student was assessed by a private evaluator specializing in autism (Parent Ex. 6 at p. 1).  The evaluator reported that the student displayed autistic characteristics as well as oppositional defiant characteristics in a very controlled, supportive environment where behavioral demands were minimal (Parent Ex. 6 at pp. 1-2).  The evaluator noted that the student had not been successful in the past in a day treatment or academic program while living at home with respondent and opined that he needed to be in an environment that was structured and regimented 24 hours a day (Parent Ex. 6 at p. 4).  Her recommendations included a structured residential program, counseling focused on providing the student with a realistic assessment of his skills and limitations, as well as vocational assessment and planning (id.).

In March 2005, when the student was 14 years old, Gateway notified petitioner and respondent that the student was being discharged from Gateway due to his hospitalization (Dist. Ex. 65).  The student was discharged to his home from ECMC on July 15, 2005 (Dist. Ex. 71 at p. 4).  The psychiatrist opined that although the student required a residential education program, he was no longer exhibiting symptoms of psychosis, self-injurious behavior, or violence (id.).  He was also to receive outpatient counseling and respite services from the DDSO and medication follow up from the ECMC medication clinic (id.).  It is not clear in the record what education services were to be provided to the student.

By letter dated August 23, 2005, respondent requested an impartial hearing for the purpose of obtaining a residential placement for her son (Parent Ex. 2).  The impartial hearing commenced October 31, 2005 and concluded December 9, 2005 after six days of testimony.  During the impartial hearing, on November 3, 2005, the parties agreed to a pendency placement at Falk in Buffalo, New York (Dist. Ex. 69).  However, reportedly the student never attended Falk during the pendency of the impartial hearing (Pet. 8, Answer 8).  On January 4, 2006, the impartial hearing officer rendered her decision finding that petitioner failed to offer an appropriate program (IHO Decision, p. 52) since the time the student was discharged from Gateway, and that the student's IEP lacked a transition plan, including transition services with vocational training (IHO Decision, pp. 53-54).  The impartial hearing officer ordered: that the student be placed in a residential placement with school component, "or on a 24/7 basis," with a staff that has expertise with children who have Asperger's Syndrome; that [he] be placed at a school with a staff with experience with children with Asperger's Syndrome; and that he be placed in a classroom of 6:1:1 (IHO Decision, p. 55).  In addition, the impartial hearing officer ordered that vocational training and a transition plan be provided for the student (id.).

On appeal, petitioner contends that the impartial hearing officer erred in determining that it failed to offer an appropriate educational program to respondent's son for the 2004-05 school year.  Petitioner further contends, inter alia, that the impartial hearing officer erred in ordering a change in placement to a "residential setting" without sufficient competent testing, evaluations, and reports necessary to provide a FAPE to the student.

A purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400 - 1487)1 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528 [2005]).  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. 1401[8][D]; 34 C.F.R. 300.13; see 20 U.S.C. 1414[d]).2  The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. 1412[a][5][A]; 34 C.F.R. 300.550[b]; 8 NYCRR 200.6[a][1]).

A FAPE is offered to a student, when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).  While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]).  A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, or seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]).  In evaluating the substantive program developed by the CSE, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998][citation and internal quotation omitted]).  This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132; Antonaccio v. Bd. of Educ., 281 F. Supp. 2d 710, 726 [S.D.N.Y. 2003]).

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]).  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, Notice of Interpretation, Question 1).  An IEP must include measurable annual goals related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. 300.347[a][2]; see 8 NYCRR 200.4[d][2][iii]).

A residential placement is one of the most restrictive educational placements available for a student (Application of a Child with a Disability, Appeal No. 03-066; Application of the Bd. of Educ., Appeal No. 01-091), and it is well settled that a residential placement is not appropriate unless it is required for a student to benefit from his or her educational program (Walczak, 142 F.3d at 122; Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121-22 [2d Cir. 1997];  Mr. J. v. Bd. of Educ., 98 F. Supp. 2d 226, 236 [D.Conn. 2000]; Vander Malle v. Ambach, 667 F. Supp. 1015, 1039-1040 [S.D.N.Y.1987]; Application of a Child with a Disability, Appeal No. 03-066; Application of a Child with a Disability, Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 03-051; Application of a Child with a Disability, Appeal No. 01-083; Application of a Child with a Disability, Appeal No. 98-2; Application of a Child with a Disability, Appeal No. 95-33). A student is not entitled to residential placement merely because it would more nearly enable the child to reach his or her full potential (Walczak, 142 F.3d at 132 [reimbursement limited to non-residential portion of program]; Application of the Bd. of Educ., Appeal No. 03-062).  Moreover, adverse or unpleasant situations at the student's home alone do not afford a basis for placing a student in a residential school (Application of a Child Suspected of Having a Disability, Appeal No. 91-6).

 While there is conflicting testimony in the record suggesting that the student could benefit from different types of settings, such as long-term hospitalization (Oct. 31, 2005 Tr. p. 152), a group-home setting (Oct. 31, 2005 Tr. p. 185) and a residential placement (Dec. 9, 2005 Tr. p. 20), it is clear that the record reflects that the student's current placement at ECMC is not educationally appropriate or medically necessary (Oct. 31, 2005 Tr. p. 158, Dec. 1, 2005 Tr. p.76).

Over the three year period from the time the student returned to petitioner's district in January 2002 until his hospitalization in February 2005, excluding a two month hospitalization in July 2003 and provision of home and hospital instruction during the third and fourth marking periods of the 2004-05 school year, the student had been either absent or had refused to participate in school for approximately 23 months (Dist. Ex. 3 at p. 1; Dist. Ex. 22 at p. 1; Dist. Ex. 24 at p. 2; Dist. Ex. 31 at pp. 1-2; Dist. Ex. 53; Dist. Ex. 61 at p. 1; Dist. Ex. 68 at p. 1; Dist. Ex. 71 at p. 3).  In addition, throughout the 2002-03, 2003-04, and 2004-05 school years the student continued to receive "incompletes" in his subject areas and "unsatisfactory progress" on his IEP goals and objectives (Dist. Ex. 58, 59, 60, 61).  The record reflects that petitioner was made aware of the student's attendance and school participation difficulties at his October 26, 2004 annual review meeting (Nov. 2, 2005 Tr. pp. 25-26).  Petitioner's school psychologist testified that "the [attendance] continued to worsen after that meeting" (Nov. 2, 2005 Tr. p. 87).  Petitioner's CSE coordinator testified that following the October 28, 2004 CSE meeting she was contacted by petitioner's school psychologist and informed that "there had been some issues on the table, that possibly the program wasn't working" and that respondent had requested that petitioner refer her son to day treatment programs (Nov. 2, 2005 Tr. p. 97). 

Despite petitioner's awareness of the student's ongoing difficulties with school attendance and class participation, the record reflects that petitioner's CSE did not reconvene to specifically review the student's deteriorating performance until January 28, 2005, a meeting that was convened at Gateway's request (Nov. 2, 2005 Tr. pp. 86-87, 100-01).  With the exception of a "nexus determination" meeting held following the student's suspension in March 2002, the record only reflects annual CSE reviews of the student prior to the January 28, 2005 meeting, despite notable fluctuations in the student's educational needs and changes in placements (see Dist. Exs. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10).  Petitioner's school psychologist testified that she was aware of the extent of the student's attendance problems prior to the January 28, 2005 CSE meeting, that "he was no longer attending school and was refusing to go" (Nov. 2, 2005 Tr. pp. 64-66).  She also testified that there was discussion at the January 28, 2005 meeting about the student's attendance problems and about changing his placement (Nov. 2, 2005 Tr. p. 66).  The student's January 28, 2005 IEP states that the student was refusing to participate in any school activities and that this behavior had been occurring for approximately 24 months (Dist. Ex. 3 at p. 2).  The January 28, 2005 IEP also states that the student's academic need is "to attend class and participate in the academic program" (id.).  However, the IEP only contains goals and corresponding objectives to address "improved mood within the school environment" and "socially acceptable behavior with adults and peers" (Dist. Ex. 3 at p. 6).  Despite the student's extensive absence and lack of participation, his IEP did not contain any behavioral interventions, strategies, supports or goals to address this behavior (id.).  The record reflects that treatment plans were developed and functional behavioral assessments (FBA) were conducted by Gateway to address the student's inappropriate behaviors and work avoidance; however, the IEP goals and objectives developed by petitioner's CSE in January 2005 remained unchanged from the student's prior IEP and the record reflects that these goals have been the same since the 2002-03 school year (see Dist. Exs. 1, 2, 3, 4, 5, 6, 7, 8, 29, 30, 35, 36). 

Overall, the goals and objectives in the student's January 28, 2005 IEP did not accurately reflect the student's needs and his present levels of performance at the time it was formulated.  The goals are not measurable and are too vaguely stated to meet the requirements set forth in state and federal regulations.  For example, the goals state that the student will "demonstrate an improved mood within the school environment" and "will increase and maintain socially acceptable behavior with adults and peers" (Dist. Ex. 3 at p. 6) without articulating criteria or standards of measurement to assess improvement or increase.  Additionally, the objectives as written do not contain sufficient specificity by which to guide instruction and intervention, evaluate the student's progress or gauge the need for continuation or revision of the objectives. 

In addition, the January 28, 2005 IEP, developed when the student was 14 years old, does not include a statement of the student's transition service needs.  The Regulations of the Commissioner of Education in effect at the time the IEP was developed required at age 14 that the student's IEP include a statement of the transition service needs that focus on the student's courses of study, such as participation in advanced placement courses or a vocational education program as required (see 8 NYCRR 200.4[d][2][viii]).  The record reflects that in October 2004, Gateway had conducted a brief assessment of the student's post high school goals. However, petitioner's CSE should have prepared a more complete statement of transition services on the student's January 28, 2005 IEP.  I note that the record reflects that the student's January 28, 2005 IEP was not changed reportedly due to respondent's absence at the CSE meeting (Nov. 2, 2005 Tr. p. 101); however, I also note that the record reflects that petitioner did not attempt to convene another CSE meeting at a time that respondent could attend, that respondent did not receive timely notification of the January 28, 2005 meeting, and that the January 28, 2005 IEP is identical to the IEP developed at the October 26, 2004 CSE meeting which included respondent and at which discussion about the student's attendance and participation difficulties occurred (Nov. 2, 2005 Tr. pp. 25-26, 126-28; Dist. Exs. 3, 4).  The record reveals that the January 28, 2005 IEP at the time it was formulated was not reasonably calculated to confer educational benefits because it was substantively inadequate and had been developed in a manner that was procedurally flawed.  Moreover, subsequent to its development, it was not revised in a timely manner given the changes in the student's educational needs.

Petitioner's CSE coordinator testified that she was informed of the student's hospitalization in February 2005 and requested that Gateway keep her informed of the student's status (Nov. 2, 2005 Tr. p. 105).  Petitioner's CSE coordinator further testified that she was informed that the student was at CPC and she subsequently directed Gateway to discharge him from the program (id.).  However, petitioner provided the student with home and hospital instruction while he was at ECMC during the third and fourth marking periods of the 2004-05 school year (Dist. Ex. 57; Nov 2, 2005 Tr. p. 108).  Petitioner's CSE chairperson testified that a teacher from petitioner's district provided instruction to the student at ECMC, but that the CSE had not developed an IEP reflecting these services (Nov. 2, 2005 Tr. p. 144).  She stated that she was "quite surprised" when respondent notified her in May 2005 that the student was still hospitalized at ECMC but due to be discharged (Nov. 2, 2005 Tr. p. 110).  Petitioner's CSE coordinator testified that she had informed respondent that the CSE required information from the student's physicians regarding the student's current functioning level before developing an educational program for the student when he was discharged and requested that respondent "get back to her" (Nov. 2, 2005 Tr. p. 111).  There was no further contact between the CSE coordinator and respondent until a resolution meeting in September 2005 (Nov. 2, 2005 Tr. p. 110).  I find that the delay in revising the IEP, which based on the record  has yet to take place, also amounts to a failure to offer a FAPE.

The record reflects that petitioner's CSE coordinator and school psychologist acknowledged that the student's attendance problems and subsequent hospitalizations were a "continuing theme" (Nov. 2, 2005 Tr. pp. 31, 69).  The student's discharge summary from ECMC in July 2005 stated that one of the student's acute stressors was his refusal to go to school (Dist. Ex. 71 at p. 6).  The consultant psychologist from Gateway opined that the student needed to be placed outside of his home "where they would be able to control his school attendance . . . so that he was receiving an education" (Nov. 10, 2005 Tr. p. 50).  In December 2005 Gateway had recommended that the student be placed in a more intensive 24 hour a day treatment center (Dist. Ex. 68 at p. 5).  The private evaluator who had assessed the student in July 2005 testified that the student needed to be in a comprehensive program that dealt with both living skills outside of school and coping skills within the school setting, including vocational planning (Dec. 2, 2005 Tr. pp. 103-104).  The private evaluator also testified that a residential program for children with Asperger's Syndrome would be "ideal" for the student, but that such a program did not exist (Dec. 2, 2005 Tr. pp. 104).  The student's social worker at Gateway testified that although there were no appropriate programs in New York State, there were several appropriate programs in other states (Dec. 9, 2005 Tr. pp. 19-20).  There is sufficient evidence in the record to demonstrate that despite respondent's son having been involved with outside counseling and intensive home based crisis intervention services in addition to his education program, his programming generally had not proven appropriate to meet his significant academic, social, behavioral and management needs. 

In summary, this student has been unsuccessful in settings less restrictive than residential settings for most of his school career.  As a preschooler he required a referral to a more restrictive day care setting due to severe acting out behaviors and temper tantrums (Dist. Ex. 19 at p. 1).  At the time of the student's transition to kindergarten he was placed in a 6:1:1 classroom in a district public school (Dist Exs. 14 at p. 1, 18 at p. 3, 22 at p. 2).  The record reflects that the student was referred to an approved private school (Falk) midway though his kindergarten year due to behavior problems and temper tantrums (Dist. Exs. 18 at p. 3, 22 at p. 2).

Although the record is sparse regarding the student's educational history while he was in Iowa, it reflects that the student was reportedly in a residential placement followed by placement in an intense day treatment program (Dist. Ex. 32 at pp. 1-3).  The day treatment program reported that the student did well academically and behaviorally however would "shut down" frequently and at these times was unable to be redirected (Dist. Ex. 32 at p. 3).

Upon his return to Buffalo in January 2002, the student was placed in a 6:1:1 classroom in a district public school, where he exhibited general social withdrawal and aggression when antagonized by his peers (Dist. Ex. 18 at p. 4).  This behavior was confirmed by a district evaluator when she observed the student in his placement, and in fact, the student twisted the evaluator's arm when she attempted to interact with him in his agitated state (Dist. Ex. 21 at pp. 2-3).  The student was subsequently suspended in March 2002 due to a behavioral outburst during which he overturned furniture and exhibited physical aggression toward several teachers (Dist. Ex. 53 at p. 2).  He did not return to the public school placement (Dist. Ex. 22 at p. 1).

The student was next placed at the Gateway day treatment program in July 2002 (Dist. Ex. 31 at p. 1).  The student's progress at Gateway for the 2002-03 school year was reported to be unsatisfactory.  Although he initially attended the program, he refused to participate in any classes laying on the floor in the school hallway or in the classroom (Dist. Ex. 31 at p. 1; Dist. Ex. 60).  The student continued in the Gateway day treatment program in September 2004.  He was reportedly only productive for the first few days in school and then began refusing to attend or participate in classes (Dist. Ex. 31 at p. 1).  Increased support in the form of an individual aide in the classroom and in home services provided by community providers yielded minimal and short term improvements in the student's behaviors (Dist. Ex. 31 at p. 2; Nov. 10, 2005 Tr. pp. 20-22).  In December 2004, the student continued to be unresponsive in his classes at Gateway, refused to follow his individualized program, and had incompletes in all subject areas (Dist. Ex. 68 at p. 1).  Following an incident with his individual aide in which the student was verbally and physically aggressive, he refused to participate in Gateway's rectification process and refused to return to school (Dist. Ex. 68 at p. 3).

The record reflects that individuals who have worked with the student in his most recent educational placement, as well as those who have provided him with in-home support believe that the student requires a more restrictive educational setting.  The student's social worker from Gateway testified that she had begun researching residential educational options for the student while he was at Gateway and opined in a letter to the student's individualized care coordinator that the student needed to be placed in a residential placement (Dec. 9, 2005 Tr. pp. 19-20).  The consultant psychologist from Gateway opined that the student needed to be placed outside of his home "where they would be able to control his school attendance . . . so that he was receiving an education" (Nov. 10, 2005 Tr. p. 50).  The student's individualized care coordinator testified that the student required a program that could provide psychological counseling, medication management, 24 hour supervision in a structured setting, and a link to an appropriate academic program, preferably on site (Nov. 10, 2005 Tr. p. 61).

The parent's witness, who has extensive experience working with individuals on the autism spectrum, opined that he needed to be in an environment that is structured and regimented 24 hours a day (Parent Ex. 6 at p. 4).  Her recommendations included a structured residential program, counseling focused on providing the student with a realistic assessment of his skills and limitations, as well as vocational assessment and planning (Parent Ex. 6 at p. 4).  At the impartial hearing, the parent's expert testified that the student required a comprehensive and inclusive program that dealt with both coping skills within the school setting and living skills outside of school, stating "you can't do it eight hours a day and expect that that's going to make a difference for this child" (Dec. 2, 2005 Tr. pp. 103, 106-107).  I note that under the circumstances I do not find the ECMC psychiatrist's support for a discharge to a non-residential program more persuasive than others recommending residential placement, given his interest in having the student discharged from the psychiatric center to any other setting (Dec. 1, 2005 Tr. pp. 73-76).

In addition, since his return to petitioner's district in January 2002, the student has had three psychiatric hospitalizations.  During each hospitalization, the student has remained primarily seclusive, only occasionally participating in the hospital's education program (Dist. Ex. 71 at p. 3).

I concur with the impartial hearing officer that in this instance, given the student's current educational needs, a residential placement is appropriate for the student to benefit from his educational program (Application of a Child Suspected of Having a Disability, Appeal No. 91-6).  His educational needs can be appropriately addressed in a residential setting that would provide greater continuity and consistency of approach and which would afford a basis for providing instruction and support beyond the normal school day.

Petitioner contends that the impartial hearing officer erred in ordering "any" residential placement.  To the extent that the impartial hearing officer's order may be read as overbroad, and be read by petitioner to direct petitioner to make a placement that is not legally permissible for it to make, I will modify the order.  I will also order a CSE to reconvene and recommend an appropriate program and placement.  In doing so I encourage the parties to work in a collaborative manner and coordinate, as necessary, with appropriate service providers (see Office of Vocational and Educational Services for Individuals with Disabilities [VESID], March 1995 Memo, [March 1995], pertaining to residential school placements).

 In light of my determination, I need not consider petitioner's other challenges to the impartial hearing officer's decision.

 THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 IT IS ORDERED that the hearing officer's order is hereby annulled to the extent it is inconsistent with this decision and order; and

 IT IS FURTHER ORDERED, unless the parties otherwise agree, that petitioner shall within thirty calendar days from the date of this decision, obtain additional evaluative data pertaining to the student it deems appropriate, convene a CSE, and recommend an appropriate residential school placement for the student in the least restrictive environment that is approved by the New York State Department of Education; and

IT IS FURTHER ORDERED, that petitioner shall take appropriate and reasonable steps to facilitate placement in that setting; and

IT IS FURTHER ORDERED, that in developing a new IEP the CSE shall provide for appropriate vocational and transitional services.

 

Dated:

Albany, New York

 

__________________________

 

March 27, 2006

 

PAUL F. KELLY
STATE REVIEW OFFICER

 

1 On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEA 2004], Pub. L. No. 108-446, 118 Stat. 2647).  Citations contained in this decision are to the statute as it existed prior to the 2004 amendments.  The relevant events in the instant appeal took place prior to the effective date of the 2004 amendments to the IDEA; therefore, the provisions of the IDEA 2004 do not apply.

2 The term "free appropriate public education" means special education and related services that -

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B)  meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.

20 U.S.C. 1401(8).