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

No. 06-045 

 

 

 

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

 

 

Appearances:
Harris Beach PLLC, attorney for petitioner, David W. Oakes, Esq., of counsel

Joyce B. Berkowitz, Esq., attorney for respondents

DECISION

            Petitioner, the Board of Education of the Penfield Central School District, appeals from the decision of an impartial hearing officer which found that it failed to offer an appropriate educational program to respondents' son and ordered it to reimburse respondents for their son's tuition costs at the Logan River Academy (Logan River) for that portion of the 2005-06 school year the student attended Logan River and reimburse respondents for their son's tuition costs at the Montcalm School for Boys (Montcalm) for that portion of the 2005-06 school year the student attended Montcalm.  The appeal must be sustained.

            At the outset, I must address a procedural issue.  Respondents have submitted on appeal an exhibit that was not introduced as evidence at the impartial hearing (see Resp't Mem. of Law, Addendum A).  Petitioner asserts in its reply that the additional documentary evidence is neither needed nor relevant to render a decision on appeal (Pet'r Reply, p. 2).  Generally, documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Child with a Disability, Appeal No. 06-005; Application of a Child with a Disability, Appeal No. 05-080; Application of a Child with a Disability, Appeal No. 05-068; Application of the Bd. of Educ., Appeal No. 04-068).  The impartial hearing concluded on February 13, 2006 and the submitted documentation regarding the student's progress at Montcalm was not available at the time of the impartial hearing.  While the documentation was not available at the time of the hearing, it is of little probative value pertaining to the issues on appeal because it has not been subjected to examination at the hearing below (8 NYCRR 200.5[i][3][xii]).  Moreover, in light of my determination on the merits of the appeal, the additional evidence is not necessary for the rendering of my decision.  Therefore, the additional documentary evidence submitted by respondents is not accepted.

            At the commencement of the impartial hearing in December 2005, respondents' son was 17 years old and was attending Montcalm, where respondents unilaterally placed him on October 9, 2005 (Dist. Ex. 28 at pp. 1-2).  Montcalm is a private school located in Albion, Michigan that has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (Tr. p. 1127; see 8 NYCRR 200.7, 200.1[d]).  The student's eligibility for special education programs and services is not in dispute on appeal; however, the student's classification as a student with an other health impairment (OHI) is in dispute (see 8 NYCRR 200.1[zz][10]).

            Respondents' son was described as "very busy" when he was a young child (Dist. Ex. 107 at p. 1).  He was reportedly doing "well" socially in kindergarten, but difficulties with attention and concentration were noted (id.).  In the first grade the student began to exhibit significant behavioral difficulties including hyperactivity, impulsivity, inappropriate social interactions, and aggression (id.).  In November of 1994, when the student was six years old, he was diagnosed as having attention deficit hyperactivity disorder (ADHD) (id.).  Stimulant therapy was reportedly administered but not successful in ameliorating his difficulties and the student's behavior continued to deteriorate further in the second grade (id.).  In November 1995, respondents obtained a psychiatric consult for the student that resulted in a diagnosis of an oppositional defiance disorder (ODD) and a recommendation that the student be placed in a "very intensive program that could manage him behaviorally and challenge him academically" (id.).  A counseling report dated December 7, 1995 indicated that the severity of the student's problems was escalating (Parent Ex. 171 at p. 1).  At the time of the report the student was on home tutoring, having been suspended two times for aggression toward other students (id.).  The student was reported to be hostile and oppositional towards counseling (id.).  The report indicated that the student exhibited a strong need to be in control, manipulated to achieve his goals and that, due to the severity of the student's behaviors, he required the therapeutic setting of a day treatment program (id.).  The student was placed in a day treatment program provided by the Rochester City School District in the spring of 1996; however he was asked to leave prior to the end of the 1996-97 school year of due to hyperactive and aggressive behavior (Dist. Ex. 107 at p. 2; Tr. p. 1258).

            The student entered petitioner's district in the fall of 1997 and was placed in a 6:1+1 special education class of the Monroe Board of Cooperative Educational Services (Monroe #1 BOCES) at Morgan School, which he attended through the fourth grade (Dist. Ex. 107 at p. 2; Tr. pp. 13, 1260).  A mid year summary, completed on January 6, 1998 by a school psychologist counseling the student, reported that it was very difficult for the student to openly connect his choices and his behavior with resulting events and any attempts to help the student make this connection resulted in agitation and an angry "shutdown"  (Dist. Ex. 108).

            A psychological evaluation was conducted over five days in January and February 1998 as part of the student's triennial review (Dist. Ex. 107 at. p. 1).  The evaluator noted that the student continued to exhibit inconsistent behavior with "good days" as well as weeks during which he exhibited significant behavioral difficulties (Dist. Ex. 107 at p. 2).  Typically, the student's volatile behavior and mood swings seemed related to complying with adult authority, or situations that he perceived as unfair or competitive (id.).  Respondents reported a desire to have the student in a regular school setting, with supports as needed, by the time he reached middle school (Dist. Ex. 107 at p. 2).  The evaluator noted that the student's expectations of himself created anxiety for him, leading to inappropriate verbal or physical reactions. The evaluator noted that the student sometimes appeared overwhelmed by "success criteria" which sent his behavior into a downward spiral from which he was unable to emerge without a "time out" or "cooling off" period (Dist. Ex. 107 at p. 2).  Administration of the Wechsler Intelligence Scales for Children-Third Edition (WISC-III) yielded a verbal IQ score of 107 and a prorated verbal IQ score of 118, a performance IQ score of 116, and a full scale IQ score of 112 (Dist. Ex. 107 at p. 4).  The evaluator opined that the student's prorated verbal IQ score was a better indicator of the student's actual ability level, reporting that the student's answers to questions from the comprehension subtest often reflected his bravado, ego focus, and quickness to take up a confrontational stance and were reflective of some of the emotional and behavioral problems with which the student struggled (Dist. Ex. 107 at p. 5).  On the Woodcock-Johnson Tests of Achievement the student achieved standard (and percentile) scores of 124 (95) for letter-word identification, 119 (90) for passage comprehension, 134 (99) for calculation, 125 (95) for applied problems, 99 (47) for dictation, and 95 (38) for writing samples (Dist. 107 at p. 4).  Items on the Behavioral Evaluation Scale-2 were rated by the student's teacher and the evaluator, yielding standard (and percentile) scores of 9 (37) for learning problems, 2 (.4) for interpersonal difficulties, 4 (2) for inappropriate behavior, 4 (2) for unhappiness/depression, and 6 (9) for physical symptoms/fears (id.).  The evaluator opined that the student was capable of being successful in situations and environments that were to his liking and when his feedback was positive, however he did not demonstrate a useful repertoire of appropriate reactions, responses, and coping strategies when he encountered typical frustrations and challenges in his educational environment (Dist. Ex. 107 at pp. 6-7).  Recommendations included exploration of mainstream education settings and continued emphasis on behavioral gains and development of socially acceptable strategies when faced with challenges and consequences not to his liking in his school program (Dist. Ex. 107 at p. 7).

            For the 1998-99 school year, when the student was in the fifth grade, he attended a 6:1+1 special education class of the Monroe #1 BOCES, located in an elementary school in petitioner's district, and was provided the opportunity to participate in some general education classes (Tr. p. 1260).

For the 1999-2000 school year when the student would be in the sixth grade, petitioner's Committee on Special Education (CSE) recommended the student participate in general education with consultant teacher support at petitioner's middle school (Dist. Ex. 91 at p.1; Tr. p. 1262).  The student's transition to general education was reported to be initially challenging (Dist. Ex. 91 at p. 1).  At a team/parent conference on October 6, 1999, respondents expressed that the student was highly motivated to continue in his current program and that he had received counseling from a community provider who was also monitoring his medication (Dist. Ex. 68 at p. 1).  Respondents reported that an indirect approach worked best with their son and chose not to have him receive direct counseling services within the school setting (id.).  The student continued to exhibit defiant and oppositional behavior and was noncompliant with requests made by teachers and administrators for the first ten weeks of his sixth grade school year (Dist. Ex. 91 at p. 1).  Once he was "locked into a power struggle" he was unable to back down or disengage from the interaction regardless of the possible consequences for the behavior (Dist. Ex. 91 at pp. 1-2).

            A functional behavioral assessment (FBA) completed on April 11, 2000 identified the student's problem behaviors as staying in control, taking direction from adults, lack of respect for peers and staff, and inappropriate attention seeking (Dist. Ex. 68 at p. 1).  The student's feeling overwhelmed by his workload was determined to be an antecedent to his behavior (id.).  A behavioral intervention plan (BIP) was developed, in conjunction with respondents and the student, which significantly reduced the frequency of the student's disruptive behaviors (Dist. Ex. 91 at p. 2).  The student reportedly had a similarly difficult transition when he entered the seventh grade in the 2000-01 school year, exhibiting oppositional behavior accompanied by outright refusal to comply with teacher requests (id.).  The student's BIP was modified at the end of January 2001 and included removing the student from the class when he was determined to be in a crisis situation (Dist. Ex. 91 at p. 4).  Per district plan, a special education teacher was assigned to work with the student when he was removed from class (id.).  The student's teachers continued to regularly consult with the middle school "house" administrator and the school psychologist, and reported marked positive improvement in the student's behavior (id.).

            A report dated February 14, 2001 indicates that the triennial review of the student did not include formal IQ testing or formal achievement testing as the student's teachers reported that student was intellectually competent, capable of comprehending all academic course content, and his class performance was consistent with his previously reported high average intellectual ability (Dist. Ex. 91 at p. 1).  However, due to interest expressed by the student, the Behavior Assessment System for Children (BASC) was administered and included a self-report by the student, reports from both respondents, and reports from the student's four core academic teachers (Dist. Ex. 91 at pp. 2-3).  A high frequency of aggressive behavior, hyperactivity, and conduct problems was reported by the Science and Math teachers as well as by respondents (Dist. Ex. 91 at p. 3).  The student reported no significant behavioral or emotional difficulties and reported a positive attitude toward school and teachers (id.).  The evaluator opined that the student's responses indicated that he was unwilling or unable to acknowledge his difficulties because this would require him to admit certain inadequacies, which was far too threatening to him at that time (id.).  Respondents also reported that the student did not want to be in "special education" and that he wanted to be declassified (id.).

            In the 2001-02 school year when he was in the eighth grade, the student reportedly became more verbally aggressive with peers and more defiant with teachers (Tr. p. 1267).  There was an increase in disciplinary referrals, primarily for incidents such as inappropriate sexual comments and/or gestures, being disruptive in class, noncompliance with teacher requests, and insubordination resulting in numerous detentions and in-school suspensions (ISS) (Parent Exs. 120-139; Tr. p. 1267).  In February 2002, the student received a four-day out-of-school suspension (OSS) for spraying another student with cleaning fluid (Parent Ex. 121).  The record is not clear whether the student's behavior was determined to be a manifestation of his disability due to contradictory documentation.  The record reveals that the student was also arrested in February 2002 for breaking into and burglarizing a neighbor's garage (Tr. p. 1269).

            Petitioner's CSE convened on March 8, 2002 for the student's annual review and to develop the student's individual education program (IEP) for the 2002-03 school year when he would have been going into the ninth grade and entering high school (Parent Ex. 18).  The student was reportedly working at grade level in all classes and there were no academic concerns noted (Parent Ex. 18 at p. 1).  The student desired to be identified as a regular education student and to be accepted by his peers (id.).  The student's needs included continued development of socially appropriate behavior with peers, respect for adults, and acceptance of limits (id.).  The student participated in several sports at petitioner's school as well as in the community (id.).  He continued to take medication to manage his behavior (id.).  The student's management needs included monitoring of side conversations, redirection to tasks that he perceived as uninteresting, waiting his turn to speak in class, monitoring his planner for homework completion as well as his refusal to follow directions, difficulty de-escalating negative behaviors, and difficulty interacting appropriately with peers especially in partner or group situations (id.).  Petitioner's CSE recommended the student participate in general education with consultant teacher services for all subjects and receive counseling for behavioral consultation on an as needed basis (id.).  To assist with transition, a recommendation was made for the student's high school teachers to meet with respondents within the first two weeks of the school year to discuss the student's difficulties, review the 2002-03 IEP, and the student's behavior plan (Parent Ex. 18 at p. 2; Tr. p. 1270).  On April 8, 2002 the student received a five-day OSS for stealing a walkie-talkie from petitioner's middle school and the record reveals that he was subsequently arrested and placed on probation, which ended just prior to the start of ninth grade (Parent Ex. 120; Tr. pp. 1269, 1272).  At the completion of the student's eighth grade year he received a grade of 79 on the Spanish 8 Regents examination and earned one credit toward high school graduation with a Regents diploma (Dist. Ex. 111).

            An undated FBA was completed during the 2002-03 school year when the student was in the ninth grade (Dist. Ex. 71).  No specific consistent antecedents to the student's behavior were identified; however, it was noted that the student's disruptive behavior often occurred in the presence of a substitute teacher, student teacher, or an individual that the student perceived as vulnerable (Dist Ex. 71 at pp. 1-2).   The subsequent BIP included a hierarchy of responses and consequences to be used as the student's problem behavior escalated (id.).

            Petitioner's CSE convened on March 19, 2003 for the student's annual review and to develop his IEP for the 2003-04 school year when he would be in the tenth grade (Parent Ex. 15).  CSE meeting minutes indicate the student had a B average, he was getting along with his peers, his behavior and noncompliance were not "out of control," he had developed in his ability to accept authority and teachers were reported to be pleased with his conduct during the 2002-03 school year (Parent Ex. 15 at pp. 6-7).  Respondents expressed concern that the student lacked motivation because he was satisfied with B and C grades (Parent Ex. 15 at p. 6).  The student's FBA was reviewed and determined to be appropriate (id.).  The CSE meeting minutes also indicated that declassification of the student would be considered for the 11th grade school year (Parent Ex. 15 at p. 7).  For the 2003-04 school year the CSE recommended the student participate in general education with consultant teacher services for all academic subjects as well as counseling on an individual basis one time per week (Parent Ex. 15 at p. 1).

            The student's ninth grade year was reported to be successful academically, socially, and behaviorally (Tr. pp. 32-33, 1271).  The record reveals that the student received several disciplinary referrals during the 2002-03 school year that resulted in detentions and one suspension (Parent Exs. 15, 119).  At the completion of the 2002-03 school year, the student had received grades primarily ranging from B+ to C-, as well as a D in Math and an F in Design earning 5.5 credits toward high school graduation with a Regents diploma (Dist. Ex. 111). 

            The record indicates that at some point in August 2003, the student took respondents' car without their permission and was subsequently arrested and placed on probation for the incident (Tr. pp. 1274-75).  The record reveals that at this point in time the student was beginning to not come home from school, was defying parental rules, and had become secretive with respondents (Tr. p. 1277).  Respondents then brought a "Persons in Need of Supervision" (PINS) petition against their son (Tr. p. 1275).

            On September 24, 2003, when the student had begun the tenth grade, he physically threatened another student with a chair and received a five-day OSS (Parent Ex. 14 at p. 8).  On October 7, 2003, the student again received a five-day OSS for punching another student on the bus (id.).  The student was provided with tutoring at an alternate location during both periods of OSS (Parent Ex. 115 at p. 2).  On October 24, 2003 petitioner's CSE convened for a manifestation determination review and concluded that the student's behavior was a manifestation of his disability (Parent Ex. 14 at pp. 8-9).  The CSE recommended that the student's BIP be updated to address physical aggression (Parent Ex. 14 at p. 9).

            On November 6, 2003 the student exhibited symptoms of being under the influence of alcohol in school, was insubordinate, defamed another student, and was noncompliant with teacher requests; subsequently receiving a three-day OSS (Parent Ex. 109 at pp. 1-2).  On November 17, 2003 the student left class without permission, entered a class in which he was not enrolled, and proceeded to disrupt the functioning of the class (Parent Ex. 106 at pp. 1-2).  The student received a one-day ISS and four days of OSS (Parent Ex. 106).  Petitioner's CSE convened on November 22, 2003 for a manifestation determination review and concluded that the student's behavior was a manifestation of his disability (Parent Ex. 13 at pp. 7-8).  CSE meeting minutes indicate the CSE deliberated whether to change the student's placement or initiate increased behavior controls ultimately recommending a change in placement to a more restrictive setting (Parent Ex. 13 at p. 8).  Respondents expressed reservations indicating that they were unprepared to make a recommendation and also expressed concerns about peer influence on their son in the 8:1+1 classroom (Parent Ex. 13 at p. 8).  The CSE recommended the student's placement be changed to an 8:1+1 special class with the related service of counseling on an individual basis one time per week for 30 minutes (Parent Ex. 13 at p. 1), and recommended that respondents visit the classroom and if their concerns about the placement continued, the CSE would reconvene to make another recommendation (Parent Ex. 13 at p. 8).  The record reveals that following their visit to the 8:1+1 class, respondents were in agreement with the placement (Tr. p. 1280).

            From January 7, 2004 through April 8, 2004 the student received numerous disciplinary referrals for offenses such as cutting class, use of vulgar language, and insubordination for which he received detentions and ISS (Parent Exs. 96-103).

            Petitioner's school psychologist and special education teacher conducted a triennial evaluation of the student on January 12 and 22, 2004 (Dist. Ex. 89 at p. 5).  Administration of the WISC-IV yielded a full scale IQ score of 114 and subtest scores (and percentiles) of 110 (75) for verbal comprehension, 102 (55) for perceptual reasoning, 141 (99.7) for working memory, and 91 (27) for processing speed (Dist. Ex. 89 at p. 2).  On the Wechsler Individual Achievement Test–II (WIAT-II), the student achieved standard (and percentile) scores of 118 (88) for word reading, 125 (95) for reading comprehension and 107 (68) for pseudoword decoding (Dist. Ex. 89 at p. 3).  He achieved subtest scores of 106 (66) for numerical operations and 113 (81) for math reasoning (id.).  The BASC, the Bender Gestalt Test, and the Draw-A-Person Test were also administered (Dist. Ex. 89 at p. 2).  The psychologist noted that the student was quite proficient at taking in verbally presented information and analyzing the content to correctly arrive at a solution; however, the student seemed more distracted by complex visual stimuli and recommended that the student's instructors limit the amount of visual information the student must process during instruction and utilize a discussion style format or small group peer discussion for the student's instruction, as well as verbal presentations by the student to demonstrate learning (Dist. Ex. 89 at p. 4).  He opined that the student's increasing comfort with his placement in the 8:1+1 special class was a concern and recommended the CSE continue to provide the student with gradual trial periods in selected general education classes in order to facilitate his return to his prior placement in general education with consultant teacher services (id.).  The special educator also noted that since the student's change in placement to an 8:1+1 class on December 1, 2003, disciplinary referrals had decreased and the student had shown overall improvement (Dist. Ex. 89 at p. 5).  She reported that the student was more able to handle difficult and frustrating situations, was able to de-escalate in a timely manner, and was able to identify his role in conflict once he calmed down and reflected on the situation (id.).

            Petitioner's CSE convened on January 14, 2004 to revise the student's 2003-04 IEP to include a testing accommodation that provided for state examinations to be administered to the student in a small group to minimize distractions and to minimize inappropriate behavior before and after tests during exam weeks (Dist. Ex. 67 at p. 1).  Petitioner's CSE reconvened on February 23, 2004 for the student's reevaluation review (Dist. Ex. 64).  CSE meeting minutes indicate respondents expressed a desire for the student to be mainstreamed into a general education class in the near future and that procedures be developed to ensure his success in the integrated setting (Dist. Ex. 61 at p. 1).  Respondents requested a review by May 30, 2004 to plan for the 2004-05 school as they desired additional general education classes added to the student's schedule and also requested removal of "preferential seating" from the student's IEP (id.).  At the time of the meeting, the student was attending general education classes in Parenting, Architectural Design, Physical Education, and Spanish (id.).  The CSE proposed that a general education Math class possibly be added to the student's schedule (id.).  The CSE's final recommendations included reconvening in two weeks to decide the general education class the student would enter, continuing counseling services one time per week for 30 minutes, and to continue the student's classification as a student with an emotional disturbance (ED) (Dist. Ex. 61 at p. 2).  CSE meeting minutes indicate respondents were in agreement with the IEP and recommendations (id.).  On March 30, 2004 petitioner's CSE convened to revise the student's 2003-04 IEP changing his placement from an 8:1+1 class for Math to a general education Math class offered at the same time as the student's current class, effective April 28, 2004 (Dist. Exs. 56 at p. 2; 59 at p. 1).  The point system that was used as a behavior intervention in the student's 8:1+1 class would be integrated into the general education Math class and the student would be monitored by his special education team (Dist. Ex. 56 at p. 2).  CSE meeting minutes indicate respondents were in agreement with the proposed change to the student's 2003-04 IEP (Dist. Ex. 56 at p. 2).

            On May 3, 2004, the student had received a two-day OSS for being disruptive and insubordinate, and for using vulgar language (Parent Ex. 95).  On May 11, 2004 the student again received a two-day OSS for being disruptive, insubordinate, and for using vulgar language (Parent Ex. 94).

            On May 26, 2004 petitioner's CSE met to revise the student's program and develop his IEP for the 2004-05 school year when he would be in the 11th grade (Dist. Exs. 52, 53).  The student's cognitive and academic abilities were reported to be within age appropriate expectations (Dist. Ex. 53 at p. 2).  He was described as being a strong auditory learner who may appear disengaged at times (id.).  The student continued to engage in power struggles and demonstrated an inability to disengage from such struggles (id.).  In the area of social development, the student was reported to have a grandiose self-concept and tended to be a follower in situations with peers, often engaging in inappropriate, attention seeking behaviors (Dist. Ex. 53 at p. 2).  He did not readily accept responsibility for his inappropriate behavior but tended to shift blame on others (id.).  The student required close monitoring, clear, concrete expectations and consequences, further development of appropriate social skills and to accept responsibility for his actions (id.).  For the 2004-05 school year the CSE recommended the student continue in an 8:1+1 class for Science, and Social Studies and in an 8:1+1 class for English through the end of the first quarter, and receive counseling on an individual basis one time per week for 30 minutes (Dist. Exs. 53 at p. 2; 52 at p. 1).  The CSE recommended the student participate in general education for Math (Dist. Exs. 53 at p. 2; 52 at p. 1).  Petitioners were in agreement with the IEP and recommendations (Dist. Ex. 52 at p. 1).  On June 2, 2004 the student punched another student in the stomach and subsequently on June 3, 2004 the student stated to an administrator at petitioner's high school that he would make the other student "sorry for this" (Dist Ex. 55 p. 1).  The student received a one-day OSS for the infractions (Dist. Ex. 55 at p. 2).

            Petitioner's CSE convened on June 8, 2004 for a manifestation determination review and concluded that the student's behavior was a manifestation of his disability (id.).  The CSE suspended the student for the remainder of the school year (Parent Ex. 86).  The student was recommended to receive home tutoring for the final weeks of the school year (Tr. pp. 1282-83).  At the end of the 2003-04 school year, when he was in the tenth grade, the student received grades primarily ranging from B+ to C; with D+ in Health and Physical Education and a withdrawal from Studio Art, which he was failing (Dist. Ex. 111).

            The student received numerous disciplinary referrals within the first weeks of the 2004-05 school year for cutting classes, insubordination, use of vulgar language, and tardiness resulting in ISS, detentions, schedule changes, and a revision to the student's BIP (Parent Exs. 67-84).

            Petitioner's CSE convened on October 14, 2004 for another manifestation determination review of other disciplinary actions and concluded that the student's behavior was a manifestation of his disability (Dist Exs. 44 at p. 1; 46 at p. 4).  At the time of the manifestation determination review, the student was receiving individual tutoring and was reported to have made limited progress in his goals and objectives (Dist. Ex. 46 at p. 5).  CSE meeting minutes reflect that the CSE determined the student would be provided with a "clean slate" and for the next ten weeks, be required to keep the number of disciplinary referrals he received to five or less (Dist. Ex. 44 at p. 1).  If the student was unable to adhere to this requirement, his placement would be changed to the Monroe #1 BOCES "START" program (START), which would provide him with a smaller environment in which he would be less able to manipulate his environment and his emotional needs could be more effectively addressed (id.).  The CSE recommended that the intake process for START begin immediately; however, the student's IEP would not be revised until a change in placement was "officially" determined (id.).  CSE meeting minutes reflect that respondents were in agreement with the recommendations (Dist. Ex. 44 at p. 2).  Following an intake interview with the student, START administrators determined the student was not appropriate for their program (Tr. pp. 130-31).  The student was unsuccessful in complying with the requirement set by the CSE and received more than five disciplinary referrals (Parent Exs. 55-60). 

Petitioner's CSE subcommittee convened on November 16, 2004 for an interim review of the student's program (Dist. Ex. 41).  The record reflects the BOCES Alternative High School (AHS) was discussed as a potential alternate placement (Tr. pp. 1319-20). The CSE subcommittee meeting summary indicates the CSE subcommittee determined the student had not been successful in the 8:1+1 class and recommended he be placed in the BOCES home tutoring program for ten hours per week to explore a general education vocational program in food preparation (Dist. Ex. 41 at p. 1).  The CSE was going to reconvene early in the third quarter of the 2004-05 school year to review the student's success with the alternate placement and his potential return to petitioner's high school (Dist. Ex. 41 at p. 4).  The record reflects the student was initially tutored on the BOCES campus, but due to interactions with other student there, tutoring was changed to occur at the local public library (Tr. p. 1222-23).  The student began leaving the library to meet friends when he was supposed to be instructed; therefore, his tutoring location was changed to a public library further away (Tr. p. 1323).  The student remained on home tutoring until January 2005 at which time he returned to petitioner's high school (Tr. 1323).

            Petitioner's CSE convened on January 12, 2005 for the student's annual review and to develop his IEP for the 2005-06 school year when he would be in the 12th grade (Dist. Ex. 20).  CSE meeting minutes reflect that the student's FBA was updated in January 2005 (Dist. Ex. 18 at p. 2).  Petitioner's CSE recommended that for the remainder of the 2004-05 school year and for the 2005-06 school year the student receive services in an 8:1+1 special class for all academic subjects except Math, which he would receive in a 12:1+1 special class (Dist. Ex. 20 at p. 1).  The student's school day would be shortened with dismissal at 11:15 a.m., to avoid lunch periods and other unstructured times during which the student tended to have behavioral difficulties (Dist. Ex. 18 at p. 2; Tr. p. 1324).  I note the student's classification was changed from ED to OHI because respondents requested it be changed (Tr. p. 495) because they believed that changing the student's classification to something other than ED might help the student better control his behavior because he was "living up" to his classification as being identified as a student with ED (Tr. pp. 135-36, 476). CSE meeting minutes reflect respondents were in agreement with the IEP and recommendations (id.).

            The student did not receive any further disciplinary referrals until March 16, 2005, at which time he began to receive almost daily disciplinary referrals for offenses such as cutting class, tardiness, and leaving the school building without permission which resulted in revocation of earned rewards (Parent Exs. 46-54).

On April 4, 2005 the student was involved in a verbal and physical altercation with the school security guard following an incident of refusing to put away his cell phone and use of vulgar language (Dist. Ex. 80 at pp. 1-2; Tr. pp. 151-53).  The student was subsequently arrested for the altercation with the security guard (Parent Ex. 44 at p. 5)

Petitioner's CSE convened on April 11, 2005 for a manifestation determination review and concluded that the student's behavior was a manifestation of his disability (Dist. Ex. 15).  The CSE determined the 8:1+1 special education class was not appropriate for the student to return to and recommended the student receive home tutoring from BOCES until an appropriate alternate placement was found for the remainder of the 2004-05 school year (Dist. Exs. 14 at p. 1; 15).  Petitioner's CSE chairperson indicated that the AHS could be an alternative if the school was still accepting students for the 2004-05 school year (Dist. Ex. 14 at p. 1).  CSE meeting minutes reflect that the student stated he would not participate in home instruction, nor would he attend the AHS, and would drop out if not allowed to return to petitioner's high school for the remainder of the 2004-05 school year (Dist. Ex. 14 at p. 2).  Respondents stated they did not want to place the student at the AHS because he didn't know anyone, and also expressed that they did not believe home instruction had been successful in the past (id.).  Petitioner's CSE recommended that for the remaining ten weeks of the 2004-05 school year the student be placed in a 6:1+1 special education class at the BOCES AHS and return to petitioner's high school for the 2005-06 school year (Dist. Exs. 14 at p. 2; 17 at p. 1).  The minutes reflect respondents were not in agreement with the IEP and recommendations and indicated they wanted to "council with some people" and "might need to come back to the CSE" (Dist. Ex. 14 at p. 2).  The student was unable to be placed at the AHS because the school was no longer enrolling students for the 2004-05 school year (Tr. p. 18).

            Due to the student's desire and respondent's reservations about the alternate placement that had been recommended, the district allowed the student to return to petitioner's high school to complete the 2004-05 school year (Tr. p. 18).  Upon his return to the high school, the student received numerous disciplinary referrals for tardiness, class cuts, insubordination, use of vulgar language, and being disruptive; receiving consequences of detention and a two-day OSS (Parent Exs. 89-95).    The record reveals that student's behavior at home had become increasingly defiant; he was staying out past his curfew; abusing substances; was engaging in inappropriate behaviors and had been brought home by the police on several occasions (Tr. pp. 1330, 1335, 1337, 1346-47).

            Respondents scheduled a meeting with an independent educational consultant on May 27, 2005 because respondents were concerned with their son's choice of friends and were suspecting their son had a drug and alcohol problem (Tr. pp. 1045-46).  On approximately May 28, 2005, the student attended a party and was drinking and smoking marijuana (Tr. pp. 1047-48, 1348-49).  The student did not come home, respondents went out looking for their son, and the police were involved (Tr. pp. 1330-36).  The student was on probation at the time of this incident (Tr. p. 1353).  Respondents contacted an independent educational consultant the following morning (Tr. pp. 1048, 1350) who suggested staging an "intervention" and placing the student in the Second Nature Wilderness Program (Second Nature) in Utah (Tr. p. 1351).  Respondents contacted petitioner's administrator of special education services and informed her that an "intervention" had been staged and the student had been removed from his home and was no longer in petitioner's school district (Tr. pp. 1354, 1407).  However, respondents did not provide details about the incident including revealing the name and location of the residential facility respondents unilaterally placed their son as a result of this incident (Dist. Ex. 32 at p. 3).

            Petitioner's CSE convened on June 13, 2005 for an interim review of the student's program, to gain information regarding the intervention, and determine from respondents their plans regarding the return of the student to the district (Dist. Exs. 11, 13; Tr. p. 20).  The CSE again recommended the student attend the AHS for the 2005-06 school year. Respondents opposed that recommendation and indicated they were not knowledgeable about the AHS program and had concerns regarding the student associating with the students at the AHS (Dist. Ex. 11 at p. 1).  Respondents also requested that the student's classification be changed back to ED (id.), because the student was taking medication to rule out bipolar disorder (Tr. p. 20).  Respondents agreed to visit the AHS program and the CSE would reconvene in July to finalize recommendation for the student's IEP for the 2005-06 school year, when he would be in the 12th grade (Dist. Ex. 11 at p. 2; Tr. p. 21).  Following the CSE meeting on June 13, 2005, respondents contacted the district and indicated they would not visit the AHS and were not in agreement with the CSE's recommendation for the student to attend the AHS (Tr. p. 21).

            In a letter dated July 12, 2005 to petitioner's director of secondary special education and pupil personnel services, respondents indicated that they were rejecting the CSE recommendation for the AHS because they did not consider it an appropriate placement for the student and they were placing him in a therapeutic boarding school (Dist. Ex. 34 at p. 2).  The letter further informed the district that the student was undergoing a full battery of evaluations and although respondents had not yet received the evaluation reports, they had been apprised the evaluator's recommendations would include placement in a residential treatment program that included a residential, clinically therapeutic environment with a strong behavior management program based on positive reinforcement and progressive levels, psychiatric care, individual, group, family therapy, and an accredited college prepatory education  program (Dist. Ex. 34 at p. 1).

            Petitioner responded by letter dated July 27, 2005 and requested that respondents provide the district with additional information regarding the program in which they had enrolled the student, specifically the name and location of the program, why the student had been sent there, what needs the program attempted to meet, what services were being provided to the student, and how long the student would be attending the program (Dist. Ex. 32 at p. 1).  Petitioner advised respondents that in order for the district to consider any information from the private evaluations obtained by respondents, respondents should send reports to the district as soon as they were available (id.).  Petitioner also requested respondents provide written consent for the private evaluators and private program staff to communicate with the district so that any questions could be clarified (Dist. Ex. 32 at p. 2).

            In a psychological assessment report dated July 9, 2005, respondents' private evaluator reported that the student had been given a variety of mental health diagnoses and labels including ADHD, bipolar disorder, ODD, obsessive compulsive disorder (OCD), and conduct disorder and that the student had a long history of mood swings and anxiety (Dist. Ex. 77 at p. 4).  The evaluator indicated that the student had reported that he had probably manipulated his mother and doctor into the ADHD diagnosis (id.).  The evaluator indicated that the student has demonstrated significant conflict with his parents and opined that a diagnosis of Parent-Child Relational Problem is appropriate (Dist. Ex. 77 at p. 18).  The evaluator recommended that the student should be placed in a placement that is "out-of-home, residential, and clinically sophisticated" (Dist. Ex. 77 at p. 20).

            On August 9, 2005 respondents notified petitioner by phone of the location of the student and provided petitioner with the names of individuals who could be contacted if petitioner required additional information following up with a letter to petitioner dated August 17, 2005 (Dist. Ex. 30).  Respondents indicated in their August 17, 2005 letter that due to the student's continued failure at school and respondents' inability to control their son's behavior at home, they consulted with the student's psychiatrist and a private educational consultant and placed the student at the Second Nature on May 31, 2005, to keep him safe, have his condition and needs evaluated, and provide intensive therapy (Dist. Ex. 30 at p. 1).  The student remained at Second Nature for nine weeks, at which point respondents enrolled him at Logan River in Utah (Dist. Ex. 30 at p. 2).  Logan River is a private school that has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (Tr. pp. 202, 721; see 8 NYCRR 200.7).  Logan River is described as a long term residential psychiatric treatment facility that specializes in helping adolescent boys and girls between the ages of 12 and 18 who have been unresponsive to outpatient counseling or previous inpatient psychiatric or substance abuse treatment programs (Parent Ex. 175).  Respondents further summarized, in the August 17, 2005 letter, their opposition to the placement recommendations made at the June 13, 2004 CSE meeting (Dist. Ex. 30 at pp. 2-3).  Respondents also objected to the individuals proposed to attend the August 31, 2005 CSE meeting and requested the student's IEP coordinator be present (Dist. Ex. 30 at p. 3).

            Petitioner's CSE convened on August 31, 2005 (Dist. Ex. 7).  Prior to the CSE meeting, petitioner was advised by Logan River that the student would be able to obtain a high school diploma by the end of the 2005-06 school year or perhaps "one semester" into the summer (Tr. p. 593).  The record reveals that the CSE reviewed the evaluation of the student completed by respondent's private evaluator, revised the student's present levels of performance, and reviewed his goals and objectives to determine continued appropriateness (Dist. Exs. 7 at p. 2; 10 at pp.  3-6).  Respondents shared information about the Second Nature and Logan River programs; stating that the student was "where he needs" to be and that a least restrictive environment had been tried in the past however, they had underestimated the magnitude of his disability (Dist. Ex. 7 at p. 3).  The program supervisor from the AHS participated in the meeting by phone and provided information to the CSE members regarding the services offered at the AHS and answered specific questions posed by respondents and CSE members (Dist. Ex. 10 at p. 5).  The CSE meeting was "tabled" until the chairperson obtained further information regarding program options suggested by respondent and CSE members (Dist. Ex. 10 at p. 5).  Petitioner's CSE reconvened on September 20, 2005 (Dist. Exs. 8; 10).  The CSE meeting minutes indicate the CSE chairperson provided information to the committee regarding several New York State approved residential schools and day treatment programs including type of student served, services provided, availability, and intake procedures (Dist. Exs. 8 at pp. 2-3; 10 at p. 5). The CSE chairperson also provided committee members an explanation of the regulatory requirements regarding residential placement and the CSE's requirement to consider the least restrictive environment in its determination (Dist. Exs. 8 at p. 2; 10 at p. 5).  The record reflects that respondents shared with the CSE that the student had been arrested; they had no control of him at home, they had exhausted county resources, the student had participated in drug rehabilitation, they had brought a PINS petition against their son, and that he had violated his probation (Dist. Ex. 8 at p. 3).  The CSE was unable to come to consensus about the student's recommended placement; therefore, the CSE chairperson recommended the student continue to be classified OHI and receive special education services in a 6:1+1 special education class at the Hillside Children's Center Halpern Day Treatment program (Halpern) for six hours per day with individual Family Living Education Counseling Services (FLECS) (Tr. pp. 581, 692-93) one time per week for 40 minutes (Dist. Exs. 8 at p. 4; 10 at pp. 1, 5).  During the interim while the intake process to Halpern was being finalized, the student was recommended to receive special education services in a 6:1+1 special education class at the AHS with individual FLECS counseling one time per week for 40 minutes (Dist. Exs. 8 at p. 4; 10 at pp. 1, 5).  The CSE meeting minutes reflect that respondents were not in agreement with the recommended program and placement and stated they would be requesting an impartial hearing (Dist. Ex. 8 at p. 3).

            A letter dated October 5, 2005 from the Hillside Children's Center to petitioner, stated that respondents were not interested in pursuing Halpern day treatment program for their son, therefore, the facility was considering the referral withdrawn (Dist. Ex. 21).

            On October 9, 2005, petitioners removed their son from Logan River and unilaterally placed him at Montcalm, primarily for reasons described in the record indicating that the student was intimidating and threatening staff and peers at Logan River (Tr. p. 1051).  The assistant clinical director at Logan River indicated that the student "wasn't acting in a way that showed he had success" at Logan River (Tr. p. 1313), and that he discussed with the student's parents the need to find a different placement (Tr. p. 1314-15).

            By letter dated November 3, 2005, respondents requested an impartial hearing for the purpose of, among other things, obtaining tuition reimbursement at Logan River and Montcalm from August 4, 2005 to June 30, 2006 (Dist. Ex. 1 at p. 6).  The impartial hearing commenced on December 19, 2005 and was concluded on February 13, 2006 after eight days of testimony.  On April 14, 2006, the impartial hearing officer rendered his decision.  He found that petitioner failed to offer a free appropriate public education (FAPE) to respondents' son for the 2005-06 school year (IHO Decision, p. 55), the placements respondents selected for their son for the 2005-06 school year were appropriate (IHO Decision, pp. 59-60), and that equitable considerations supported respondents' tuition reimbursement claims for the 2005-06 school year (IHO Decision, p. 64).  The impartial hearing officer awarded respondents reimbursement for costs of their son's tuition at Logan River for that portion of the 2005-06 school year that he attended Logan River and reimbursement for costs of their son's tuition at Montcalm for that portion of the 2005-06 school year that he attended Montcalm (IHO Decision, p. 67).

            Petitioner appeals from the impartial hearing officer's decision.  It contends that it offered appropriate programs to respondents' son for the 2005-06 school year, that respondents failed to demonstrate that both Logan River and Montcalm were appropriate placements for respondents' son for the 2005-06 school year, and that equitable considerations do not favor respondents' reimbursement claims.

            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]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 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  A FAPE is offered to a student when (a) the board of education 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]).  The Second Circuit has determined that "a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression' and if the IEP affords the student with an opportunity greater than mere "trivial advancement" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130), in other words, likely to provide some "meaningful" benefit (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120  [2d Cir. 1997]). 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). 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]).  The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (Schaffer, 126 S.Ct. at 537).

            A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]).  In Burlington, the court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (id.).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (Burlington, at 370-71).  The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14)/

            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).

            The impartial hearing officer found that petitioner failed to a properly evaluate the student specifically with respect to the student's behavior and the development of adequate FBAs.3  He found that the FBAs developed for the student were inadequate because they failed to identify why the student engaged in challenging behavior and how the student's behavior related to his environment (IHO Decision, p. 49). 

In the case of a child whose behavior impedes his or her learning or that of others, the CSE shall consider, when appropriate, strategies, including positive behavioral interventions, and supports to address that behavior (20 U.S.C. 1414[d][3][B][i]; 34 C.F.R. § 300.346[a][2][i]; see 8 NYCRR 200.4[d][3][i]).  The official commentary to the federal regulations specifies that "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). 

            The record shows that petitioner conducted FBAs, developed BIPs and used various strategies to address the student's behavior.  It identified a number of problem behaviors including making inappropriate comments and gestures in class, and being defiant, oppositional, and noncompliant with teacher requests (Dist. Ex. 71 at p. 1).  In May 2004, when the student was in the tenth grade, problem behaviors included inappropriate verbal outbursts and initiation of verbal conflicts with adults (Dist. Ex. 73 at p. 1).  The student exhibited these behaviors when teacher demands or consequences for negative behaviors were imposed in the classroom during independent work, group work or in crowded settings (id.).  The behavior was hypothesized to occur because the student wanted to avoid demands or requests, to avoid activities or tasks, and to gain attention from the student's peers or adults (id.).  Petitioner revised behavioral interventions accordingly adding levels to the hierarchy of responses and consequences and providing more intermediate steps and additional opportunities for the student to control his own behavior (Dist. Ex. 73).  For example, the behavior interventions included planned ignoring, verbal redirection, time away from the situation, an incentive plan, security escort to an administrator, and counseling sessions with the crisis intervention counselor and provided an explicit hierarchy for the implementation of the interventions (id.).  In January 2005, when the student was in the 11th grade, his problem behaviors were revised to include new behaviors the student was then exhibiting including skipping classes and leaving school grounds (Dist. Ex. 75).  Additional antecedents were identified, and the hierarchy of responses and consequences to be used as the student's problem behavior escalated was revised.  The student's school day was shortened to reduce the amount of unstructured time available to him within the school building and he was provided with an adult to escort him to classes (id.).  Additional proactive measures were implemented (id.).  The record shows that petitioner reassessed the student's behavior, including the identification of antecedents and revised the behavioral interventions accordingly (id.).  Based on the information before me, I find that petitioner considered strategies, including positive behavioral interventions, and supports to address the student's problem behavior and developed adequate FBAs for the student.

            Petitioner also appeals from the impartial hearing officer's determination that it failed to recommend appropriate programs in developing the June and September 2005 IEPs.  With respect to the June 2005 IEP, the record shows that petitioner's CSE convened to gain information regarding the intervention staged by respondents, determine from respondents their plans regarding the return of the student to the district, and to plan for an appropriate placement if the student was to return to petitioner's district in the near future (Dist. Exs. 11, 13; Tr. pp. 20, 181).  Petitioner's administrator of special education services testified that the student had a grandiose self-concept and perceived his needs to be more important than the needs of others (Tr. p. 102).  She indicated that even though the student had low self-esteem, he attempted to make others believe that he had a "big impression of himself" (Tr. p. 103).  She stated that the student had difficulty reading social cues, not recognizing when his behavior was "crossing the line" (id.) and that he did not readily accept responsibility for his behavior (id.).  The student would try to blame others when he got in trouble or would use profanity to take the attention off the infraction (Tr. p. 104).  Petitioner's administrator also testified that the student engaged in inappropriate attention seeking behavior with his peers and that he desired to be viewed as grandiose by them (Tr. p. 103). 

            The record shows that the student benefited from a structured classroom setting with clear expectations for academic responsibilities, classroom behavior, and consequences for noncompliance (Dist. Ex. 15 at p. 1, 6).  He required close monitoring, clear, concrete expectations and consequences, further development of appropriate social skills and accepting responsibility for his actions (Dist. Ex. 15 at p. 2).

            As noted above, the CSE recommended that the student be placed at AHS.  Petitioner's school psychologist described the AHS as a highly structured, behaviorally oriented setting (Tr. p. 558).  He testified that the program was staffed by psychologists, offered social work services, and had the availability of psychiatric consultations (Tr. p. 559).  Students within the AHS were provided with school counseling to assist them with school issues as well as adjustment issues (id.).  The AHS also assisted those students with substance abuse problems with referrals to outside agencies (Tr. p. 559).  Mental health staff were available to students throughout the day (Tr. p. 559).  Petitioner's psychologist further testified that the curriculum at the AHS was delivered in an alternative way (Tr. p. 559).  The class sizes were smaller, typically 6:1+1, and were staffed by a special education teacher and an assistant in order to allow students to make a more personal and emotional connection to the staff and instructors (Tr. p. 559).  The record further reveals that students work closely with teachers and mental health staff at the AHS on the commitment, safety and respect components of the school program (Dist. Ex. 119 at p. 3).  Students are expected to show commitment by attending school every day, participating in all classes, achieving good grades, and behaving appropriately within the BOCES code of conduct (Dist. Ex. 119 at p. 5).  The AHS is a closed campus; students may not leave the building or the parking lot and may not be under the influence of drugs or alcohol (id.).  Sexual harassment or sexually provocative behavior is not tolerated and students are expected to dress in appropriate clothing (id.).

            According to the record, the AHS uses a hands-on approach to learning, which consists of complex projects as opposed to single item homework sheets (Dist. Ex. 119 at p. 4).  Students are provided with problem-solving activities that incorporate authentic, real-life questions and issues in a format that encourages collaborative effort, dialogue with informed expert sources, and generalization to broader ideas and application (id.).  In addition, each AHS student signs a student contract every year, signifying they understand and accept the consequences of not respecting the AHS rules (Dist. Ex. 119 at pp. 4-5)Based upon the information before me, I find that the June 2005 IEP was adequate and reasonably calculated to enable the student to receive educational benefits.

            With respect to the September 2005 IEP, the record shows that petitioner's CSE convened at the end of August 2005 to review the evaluation of the student completed at Second Nature by respondent's private evaluator (Dist Exs. 7 at p. 2; 10 at pp. 3-6).  Results of projective testing indicated the student had difficulty internalizing the values and standards of society and felt that they did not apply to him, he had strong feelings of resentment over having limits placed on his behavior and appeared to actively resist efforts to adhere to socially acceptable standards of behavior, his self-esteem was extremely low, and he was emotionally immature and without sufficient coping resources to control his mood and behavior (Dist. Ex. 77 at pp. 12-15).  The evaluator opined that a maladaptive pattern of alcohol and drug abuse had led to significant impairment in the student's performance and behavior, stating the student had very little insight into the basis of his substance abuse and was highly likely to continue using drugs without intensive intervention (Dist. Ex. 77 at pp. 14, 17).  Based on the student's history and test results the evaluator offered the following diagnoses:  oppositional defiant disorder, identity disorder, alcohol abuse, marijuana abuse, Adderall abuse, and parent-child relational problem (Dist. Ex. 77 at pp. 17-18).  The evaluator stated that the student's outward behaviors were "merely a façade" that masked the student's underlying feelings of inadequacy, insecurity, poor self-esteem, and vulnerability and opined the student did not meet the criteria for conduct disorder or for a serious mood disorder, bipolar disorder, anxiety disorder, or thought disorder (id.).   Because of the student's vulnerability toward addictions and negative peer influences, the evaluator recommended a clinically sophisticated residential placement with an emphasis on behavior modification and therapeutic interventions including individual and group therapy, substance abuse specific counseling, family interventions, and specialized groups focusing on family-related problems (Dist. Ex. 77 at p. 19).

            Respondents shared information with the CSE members about the Second Nature and Logan River programs and indicated that they believed the student was in the most appropriate environment for him at that time and that less restrictive environments had been tried in the past, however, respondents had underestimated the magnitude of the student's disability (Dist Ex. 7 at p. 3).  The CSE meeting was tabled to allow the chairperson to obtain additional information regarding the program options that had been suggested by respondents and CSE members (Dist. Ex. 10 at p. 5). 

            Petitioner's CSE reconvened on September 20, 2005 to formulate the student's IEP for the 2005-06 school year (Dist Exs. 8; 10).  The CSE revised the student's IEP to reflect his present levels of performance and reviewed his goals and objectives to determine continued appropriateness (Dist. Exs. 7 at p. 2; 10 at pp. 3-6).  The IEP provided that the student's cognitive and academic abilities were within age appropriate expectations (Dist. Ex. 10 at p. 3).  It described the student as a strong auditory learner who may appear disengaged at times (id.).  It indicated that the student continued to engage in power struggles and demonstrate an inability to disengage from such struggles (id.).  In the area of social development, the IEP noted that the student was reported to have a grandiose self-concept and tended to be a follower in situations with peers, often engaging in inappropriate, attention seeking behaviors (Dist. Ex. 10 at pp. 3-4).  It further noted that he did not readily accept responsibility for his inappropriate behavior but tended to shift blame on others (Dist. Ex. 10 at p. 4).  The IEP provided that the student required close monitoring, clear, concrete expectations and consequences, further development of appropriate social skills and to accept responsibility for his actions (id.).  It indicated that he was taking medication for inattention, impulsivity, and mood stabilization (id.).  The student's IEP contained one goal and one objective in the study skills area and four goals and a total of five corresponding objectives in the social/emotional/behavioral area related to social skills with peers; compliance with classroom rules, teacher directives, and acceptance of authority; and acceptance of responsibility for actions (Dist. Ex. 10 at pp. 5-6).  The record indicates that all CSE members were in agreement with this portion of the student's recommended IEP (Dist. Ex. 10 at p. 3).

            The CSE meeting minutes indicate that the CSE chairperson provided extensive information to the committee regarding several New York State approved residential schools and day treatment programs including type of student served, services provided, availability, and intake procedures (Dist. Exs. 8 at pp. 2-3; 10 at p. 5).  The record reflects that respondents shared with the CSE some of the incidents which led to their unilateral placement of him at Second Nature and Logan River including that the student had been arrested, they had no control of him at home, the student had participated in drug rehabilitation, they had brought a PINS petition against their son, and that he had violated his probation (Dist Ex. 8 at p. 2).  The CSE chairperson provided committee members with an explanation of the regulatory requirements regarding residential placement and the CSE's obligation to consider least restrictive environment in its determination (Dist Exs. 8 at p. 2; 10 at p. 5).  The record reveals the CSE was unable to reach consensus on the student's recommended placement; therefore, the CSE chairperson recommended the student continue to be classified OHI and receive special education services in a 6:1+1 special education class at Halpern for six hours per day with individual FLECS counseling one time per week for 40 minutes (Dist Exs. 8 at p. 4; 10 at pp. 1, 5).  During the interim, while the intake process to Halpern was being finalized, the student was recommended to receive special education services in a 6:1+1 special education class at the AHS with individual FLECS counseling one time per week for 40 minutes (Dist Exs. 8 at p. 4; 10 at pp. 1, 5).

            Petitioner's school psychologist testified that a day treatment program provides special education services, as well as therapeutic interventions, and is considered to be a more restrictive setting (Tr. pp. 558, 560).  He further testified that a day treatment program addresses a student's academic needs, but the primary goal is to assist students with the behavioral and emotional difficulties that may be affecting their ability to perform in school (Tr. p. 560).  Day treatment programs are very structured and behaviorally oriented, providing regular psychiatric consultation (Tr. pp. 561-62).  Petitioner's school psychologist also testified that day treatment programs provide a high level of service to families as part of helping students resolve their behavioral and emotional problems (Tr. p. 560).  He also stated that day treatment programs assist families in accessing substance abuse treatment for a student, and some programs provide substance abuse counseling on the grounds of the program (Tr. p. 561).  I find the program recommended in the student's September 2005 IEP was reasonably calculated to enable the student to receive educational benefit and that he was offered a FAPE for the 2005-06 school year in the least restrictive environment (LRE).

            Having determined that the June and September 2005 IEPs both offered a FAPE to respondents' son for the 2005-06 school year, I need not reach the issue of whether or not Logan River and Montcalm were appropriate.  Respondents are not entitled to reimbursement, and the necessary inquiry is at an end (Voluntown, 226 F.3d at 66; Walczak, 142 F.3d at 134; Application of a Child with a Disability, Appeal No. 05-038; Application of a Child with a Disability, Appeal No. 03-058).4

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

            THE APPEAL IS SUSTAINED.

            IT IS ORDERED that the impartial hearing officer's decision is annulled to the extent that it granted respondents' request for reimbursement of their son's tuition costs at Logan River and Montcalm for the 2005-06 school year.

Dated:

Albany, New York

 

__________________________

 

July 7, 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).  With respect to the June 2005 IEP, the relevant events with respect took place prior to the effective date of the 2004 amendments to the IDEA, and, therefore, the provisions of the IDEA 2004 do not apply to those claims.  With respect to the September 2005 IEP, the relevant events took place after the effective date of the IDEA 2004, and therefore, the provisions of the IDEA 2004 apply to those claims.  Citations in this appeal are to the IDEA 2004 and references.

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).

3 An FBA is

…the process of determining why a student engages in behaviors that impede learning and how the student's behavior relates to the environment. The functional behavioral assessment includes, but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it.

(8 NYCRR 200.1[r]).

4 Petitioner also contends that the impartial hearing officer erred in determining that the student was not properly classified as a student with OHI (IHO Decision, pp. 50-51).  Petitioner, however, also contends on appeal that the student's classification did not determine the student's program or placement (Dist. Memo of Law, p. 18) and that the student's IEP "was driven by his individual needs, not his label" (Dist. Memo of Law, p. 19).  Although respondents previously requested that their son's classification be changed from ED to OHI (Tr. p. 495), respondents now request that their son's classification be changed back to ED.  Based upon information in the record, it is likely that the student will have graduated high school by the date of this decision and the issue of his classification will be moot (Tr. 593). In the event that he has not graduated, I note that there is sufficient information in the record to support the student's classification as a student with an emotional disturbance because he has exhibited over a long period of time, to a marked degree, inappropriate types of behavior or feelings under normal circumstances that adversely affects his educational performance (8 NYCRR 200.1[zz][4][iii]; see also 34 C.F.R. § 300.7[c][4][i][C]).