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

No. 06-056

 

 

 

Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Holland Patent Central School District

 

 

Appearances:
Legal Services of Central New York, Inc., attorney for petitioner, Susan M. Young, Esq., and Deborah I. Bice, Esq., of counsel

 

Ferrara, Fiorenza, Larrison, Barrett & Reitz, PC, attorney for respondent, Susan Johns, Esq., of counsel

 

DECISION

            Petitioner appeals from a decision of an impartial hearing officer which determined that petitioner had not demonstrated that the educational program and services that respondent's Committee on Special Education (CSE) had recommended for her son for the 2005-06 school year failed to offer a free appropriate public education (FAPE).  The appeal must be dismissed.

 

            The student was initially referred to the CSE in October 2002 when he was in fifth grade.  The referral was made by his teacher, who described the student's behavior as insubordinate, disrespectful, oppositional, defiant, moody, sullen, destructive, controlling, and non-compliant (Dist. Ex. 2).  Respondent requested consent to evaluate the student (Dist. Ex. 3 at p. 1). Petitioner indicated that she was pursuing a private evaluation and that results would be forwarded to respondent (Dist. Ex. 3 at p. 2).

 

            A January 29, 2003 report of a private psychological evaluation of the student included results of administration of the Wechsler Intelligence Scale for Children - III (WISC-III), which yielded a Verbal IQ score of 113, a Performance IQ score of 112, and a Full Scale IQ score of 113, indicating cognitive functioning in the high average range (Dist. Ex. 5 at pp. 2-3).  As part of the private evaluation, petitioner completed the Child Behavior Checklist (CBC) for Ages 4-18.  The student's scores were in the clinically significant range for anxiety and depression. The evaluator indicated that the student presented as a lonely child, who felt unloved and worthless, and was anxious in his interactions, self-conscious, and worried because he wanted to be perfect (Dist. Ex. 5 at pp. 3-4).  The evaluator also described the student as argumentative and stubborn, sometimes showing off or exhibiting mood changes, and sometimes expressing fear about going to school (Dist. Ex. 5 at p. 4).  Results of the completion of the Beck Youth Inventories questionnaire by the student revealed the student's self-awareness that he could be disruptive and argumentative, did not like to listen to people, broke rules, had difficulty managing his anger, worried when he was at school, and felt inadequate in spite of his competence (id.).  Results of projective testing reflected the student's feelings of anxiety, sadness, inadequacy, and ineffectiveness (Dist. Ex. 5 at pp. 4-5).

 

            Following a February 28, 2003 meeting with respondent's superintendent, petitioner rejected the possibility of classification of her son by respondent's CSE (Dist. Ex. 6). Respondent's Child Study Team subsequently worked with petitioner and with the student's private counselor to amend the student's existing behavior plan (Tr. p. 895; Parent Ex. 95), incorporating recommendations from the private psychological evaluation report into the plan (Dist. Ex. 5 at pp. 6-7).  In February 2003, the student's private counselor requested that implementation of the behavior plan be discontinued because she felt that respondent was using it punitively against the student (Tr. p. 897). The behavior plan was revised to include a mentor for the student (Tr. pp. 900-01; Dist. Ex. 7).

 

            In March 2003, another private evaluator determined that the student presented a diagnostic impression of anxiety disorder (Tr. pp. 905-06).  This evaluator offered suggestions to respondent regarding implementation of the student's behavior plan (Tr. pp. 910-11; Parent Ex. 99), but she did not refer the student to the CSE (Tr. pp. 910-11).

 

            The student was again referred to the CSE in October 2003, when he was in sixth grade.   He was described as frequently oppositional, having difficulty seeing another perspective, making many negative comments, and making comments that caused other students to feel humiliated (Dist. Ex. 9 at p. 1).  Suggestions offered by the student's private counselor were attached to the October 2003 referral form (Dist. Ex. 9 at pp. 3-5).  Respondent requested consent to evaluate the student, but petitioner did not give consent (Tr. p. 435; Dist. Ex. 8), expressing concerns about the amount of participation she would be allowed in recommendations for her son (Dist. Ex. 8). 

 

            Between February and May 2004, the student received a series of out-of-school suspensions and a total of 37 discipline referrals for leaving school grounds, being disrespectful, cutting detention, theft, being disruptive, verbal harassment, uncooperativeness, insubordination, and inappropriate language and behavior (Dist. Exs. 11 at p. 1; 80 at pp. 1-2).  In a letter dated May 25, 2004, respondent's middle school principal indicated that the student "would benefit from an alternative placement to provide him with the necessary structure to be successful in school" and that she would be forwarding this recommendation to respondent's superintendent (Dist. Ex. 11 at p. 2).

 

            At the superintendent's hearing, which occurred on June 2, 2004 (Dist. Ex. 11 at p. 3), respondent's superintendent placed the student on home instruction for the remainder of the school year and directed the student's placement in an alternative program, effective September 2004 (Dist. Ex. 11 at pp. 3-4).  

 

            On June 16, 2004, respondent's psychologist completed a psychological summary (Dist. Ex. 14), which included results of the CBC Teacher's Rating Form.  Results indicated that teachers who completed the checklist perceived the student as someone who felt that classroom rules did not pertain to him and felt that he could express himself in any manner without consequences.  He was also described as manipulating situations, relying on technicalities, and exhibiting a work ethic and moods which detracted from his functioning (Dist. Ex. 14 at pp. 2-3).  Once upset or frustrated, he would take out his feelings on the environment around him (Dist. Ex. 14 at p. 3).  He enjoyed associating with others who had disciplinary problems, did not feel guilty for saying disruptive or inappropriate things to others, and used profanity (id.).  The student was frequently argumentative, defiant, disruptive, demanding of attention, stubborn, and manipulative (id.).  He did not take correction well, avoided discipline, and talked back (id.).  When he did not get his way, he would reveal his temper by becoming loud, posturing threats, teasing/humiliating, or becoming physical with peers (id.).  The student disregarded authority and created many little annoyances for revenge and to test limits (id.).  The student's significant difficulties with aggressive behaviors resulted in a CBC total test score within the clinically significant range (id.). 

 

            Respondent's school psychologist (school psychologist) concluded that the student did not exhibit a profile for a learning disability (Dist. Ex. 14 at p. 3).  She also indicated that the student did not exhibit an emotional disturbance, noting that the student was aware his behaviors were inappropriate while they were occurring (id.).  The school psychologist also indicated that the student exhibited characteristics of an oppositional defiant disorder (id.).  The school psychologist noted that the student's behaviors interfered with his own learning and the learning of others (Dist. Ex. 14 at p. 4). 

           

            The CSE convened on July 29, 2004 (Dist. Exs. 18; 19).  The student was classified as a student having an emotional disturbance (ED) (Dist. Exs. 18 at p. 1; 19 at p. 1) and the CSE recommended placement for 2004-05 in a Board of Cooperative Educational Services (BOCES) 12:1:1 adjustment class located in the Westmoreland Central School District (Westmoreland program), with daily 30-minute counseling sessions (Dist. Ex. 18, p. 3; 19 at p. 1).  Petitioner indicated that she preferred the student remain in respondent's least restrictive environment, and consented to the Westmoreland program, indicating that it was her understanding that the consent was only to review the student's records (Tr. p. 353).  In a letter to the CSE Chairperson dated August 16, 2004, petitioner withdrew consent for the recommended Westmoreland program, indicating that she did not have enough time to visit the proposed placement.  Petitioner requested a new CSE meeting, the development of a behavior plan, and maintenance of her son in respondent's district (Dist. Ex. 20).

 

            The CSE convened again on September 8, 2004 (Dist. Exs. 24; 25). CSE minutes indicate that the parent had not visited the Westmoreland program and did not consent to placement of her son in that program (Dist. Ex. 24 at p. 1).  Minutes also indicate that the CSE discussed the need to place the student somewhere for the first day of school (id.).  The CSE offered placement at Westmoreland or home instruction (Dist. Exs. 24 at pp. 1-2; 25 at p. 1).  A certified clinical social worker who accompanied petitioner to the CSE meeting recommended a 30-day placement at Westmoreland, but petitioner disagreed (Dist. Ex. 24 at p. 1), indicating that she was concerned that if the CSE placed the student in the Westmoreland program, a functional behavioral assessment (FBA) would not be conducted in his regular education setting (Tr. p. 360).

 

            When the 2004-05 school year began, the student received home instruction pending petitioner's visit to the recommended Westmoreland program (Tr. p. 361; Dist. Exs.  24; 25 at p. 3).  Petitioner visited the program on September 17, 2004 (Tr. pp. 361, 362). The CSE reconvened the same day (Tr. p. 364). Petitioner consented to the CSE's recommendation that the student be placed in the Westmoreland program for 20 weeks (Tr. p. 363; Dist. Ex. 27 at p. 1) and that the CSE agreed to review the student's program in January 2005 (Dist. Ex. 27 at p. 1). 

 

            The student attended the Westmoreland program from September 2004 until March 2005 (Tr. p. 225).  He was not mainstreamed while at Westmoreland (Tr. pp. 750-51).  The CSE reconvened on January 13, 2005.  BOCES personnel who attended the meeting reported that the student had responded well to the structure of the program (Tr. p. 749; Dist. Ex. 30 at p. 3) and that his academic work had improved during the time that he was there (Tr. pp. 749, 750).  The program used a point-based behavior system (point system) in which students earned points for their good behavior, entitling them to certain privileges (Tr. p. 754).  Although the student still had numerous discipline referrals at Westmoreland, both in the classroom and on the bus ride to and from school, he reportedly responded favorably to the point system (Tr. pp. 369, 749, 759).

 

            The CSE met for a program review on February 14, 2005 (Dist. Exs. 31; 32), with the student in attendance (Dist. Ex 31 at p. 3). The February 14, 2005 CSE considered results of additional testing conducted on February 7, 2005 (Dist. 31 at p. 2). Administration of the Woodcock-Johnson Tests of Achievement- Third Edition Form B yielded a broad written language standard score of 112 (80th percentile). Administration of The Test of Written Language yielded a spontaneous writing quotient standard score of 117 (87th percentile).  The evaluator described the student as having good ability for listening to directions, a well developed vocabulary, and an ability to create different styles of sentences.  The student's teachers reported at the February 14, 2005 CSE meeting that petitioner's son was doing well with the point system, earning points at levels three and four, which were the highest possible ratings (Tr. p. 368).  According to his teacher, the student was very good at figuring out how many behavior points he could lose and still end up within the acceptable level of behavior (Tr. p. 754). He was doing well academically (Tr. p. 749) and was beginning to build a good relationship with his teacher and his counselor (Tr. p. 755).  The student still instigated situations in the classroom and belittled other students (Tr. pp. 454-55).  The February 14, 2005 CSE minutes indicate that the FBA was not complete and that the student's current behavior plan was not acceptable (Dist. Ex. 31 at p. 2).

 

            At the February 14, 2005 meeting, petitioner requested that her son return to respondent's middle school as soon as possible (Tr. p. 754; Dist. Ex. 31 at p. 2).  BOCES staff advised the February 14, 2005 CSE that the student was not ready to return to respondent's middle school (Tr. pp. 36, 227, 751). The February 14, 2005 CSE agreed to petitioner's request and recommended that the student return to respondent's middle school with the support of a 1:1 aide and counseling (Dist. Ex. 32 at p. 3).

 

            On March 2, 2005, the student began attending regular seventh grade classes in respondent's middle school, with a 1:1 aide with him at all times and counseling as a related service, one time each six day cycle for 30 minutes (Dist. Ex. 32 at p. 3).  The school psychologist stated that the student had a behavioral intervention plan (BIP), which included a point-based behavior system similar to the BIP used for the student in the Westmoreland program (Tr. pp. 763, 774; Dist. Ex. 85), and that the plan was based on an FBA conducted by respondent's school psychologist while the student was still attending the Westmoreland program (Tr. p. 774).  As part of the plan, the student had four behavior goals and could earn points every 40 minutes based on his performance of each goal.  He was allowed one 10-minute break per day to be taken in the guidance office (Dist. Ex. 85 at p. 1).

 

            In a letter dated March 18, 2005, respondent's social worker reported to petitioner that the student's program was effective, but indicated that she had some concerns (Dist. Ex. 40).  The school psychologist reported that the point system was not as successful for the student in the mainstream setting at the middle school as it had been in the Westmoreland program, as respondent's regular education class was a larger and less structured setting, and the student was the only student in the mainstream who had a point system (Tr. p. 768).  The student rejected any rewards that were treats, did not want to be supervised by his 1:1 aide, and appeared to be disinterested in counseling (Dist. Ex. 40). Between April 6, 2005 and May 11, 2005, the student received three one-day in-school suspensions (Dist. Ex. 46 at pp. 1-3).

 

            On August 31, 2005, the CSE convened for the student's annual review to develop the student's individualized education program (IEP) for the 2005-06 school year (Dist. Exs. 48; 49).  The August 31, 2005 CSE recommended that the student be placed in a regular education eighth grade class, and receive indirect consultant teacher services (Dist. Ex. 49 at p. 4) to help the teachers working with the student to develop behavioral and academic strategies to use with him in the classroom (Tr. pp. 40, 853).  Petitioner did not want her son to continue to have a 1:1 aide (Tr. p. 40) and rejected resource room services (Dist. Ex. 48 at p. 2).  She agreed to the recommended indirect consultant teacher services and to weekly counseling (Dist. Ex. 48 at pp. 1, 4).

 

            On September 14, 2005, respondent's guidance counselor and school psychologist developed a BIP (Dist. Ex. 50), with progress to be monitored by weekly reports from the guidance counselor, teacher/faculty referrals, and monthly teacher/mentor evaluations, as well as through progress reports every five weeks (Dist. Ex. 50 at p. 2).  Petitioner found the BIP unsatisfactory and indicated that the point system was no longer effective in the middle school (Parent Ex. 114).  By November 2005, the student's point scores, which had previously been in the three to five range, had fallen to the one to three range (Dist. Ex. 81).  Between September 2005 and November 2005, the student had 26 behavior referrals (Dist. Ex. 80 at pp. 4-7) and his grades had deteriorated (Parent Exs. 113; 118).

 

            On November 2, 2005, a draft FBA was completed (Dist. Ex. 54) by respondent's counselor and school psychologist (Tr. p. 794). Petitioner received a copy of the draft FBA the following day (Tr. p. 388) and expressed concern that a satisfactory BIP was not yet in place for the student.  By letter dated November 5, 2005, petitioner advised the BIP team that the plan was inadequate and suggested that the FBA and BIP be revised (Dist. Ex. 56; Parent Ex. 117).  Petitioner also advised the BIP team that the student has been diagnosed with an anxiety disorder (Dist. Ex. 56 at p. 4).

 

            Respondent developed another draft of the FBA on November 15, 2005 (Dist. Ex. 58). Petitioner indicated that she had requested revisions made to this draft and to her son's BIP, but that she was advised at a November 22, 2005 CSE meeting that no more revisions would be made to either the FBA or BIP (Tr. p. 399). 

 

            The student received in-school suspensions on November 10 and November 14, 2005 as the result of a physical altercation with another student (Dist. Ex. 80 at p. 7). On November 16, 2005 the student received a 5-day out-of-school suspension for misbehavior (id.). During that period, respondent filed two violent and disruptive incident reports (VADIR) regarding the student with the New York State Education Department (Dist. Ex. 61 at p. 4).

 

            The CSE convened at two separate times on November 22, 2005 for a program review and a manifestation determination (Dist. Ex. 60). The November 22, 2005 CSE found that the student's behavior was a manifestation of his disability (Dist. Ex. 61 at p. 4).  Petitioner sought a more therapeutic approach for her son, which the November 22, 2005 CSE determined could be appropriately provided at the 12:1:1 Westmoreland program or at an 8:1:1 BOCES setting (id.).  An 8:1:1 special education class at the Oneida BOCES in Waterville Middle School (8:1:1 school-based program) was discussed, but petitioner had not visited this program prior to the November 22, 2005 CSE meeting.  The IEP which resulted from the November 22, 2005 CSE meeting recommended the provision of home instruction until an appropriate placement could be agreed upon (Dist. Ex. 61 at pp. 4-5).  Petitioner consented to home instruction (Dist. Ex. 63) and the CSE agreed to reconvene on December 13, 2005 to further discuss the student's placement (Dist. Ex. 61 at p. 5).  In the interim, petitioner agreed to visit the 8:1:1 school-based program (Dist. Ex. 61 at p. 4).

 

            Petitioner did not visit the 8:1:1 school-based program (Dist. Ex. 75).  By letter dated December 5, 2005, petitioner requested an impartial hearing (Dist. Ex. 67).  Petitioner stated that the IEP did not contain an appropriate FBA and BIP, because her son's BIP was completed prior to the development of an FBA (Dist. Ex. 67 at p. 3).  The letter indicated that suggestions offered by petitioner and her consultant were not included in the student's FBA/BIP (id.).  Additionally, petitioner alleged that respondent prematurely recommended an alternative placement without first finalizing the FBA/BIP to determine if it could be implemented in the least restrictive setting (id.).  Petitioner stated that her son was placed in the Westmoreland program in 2004 without an FBA in place, and without implementing an IEP in the least restrictive setting (id.).  In this letter, petitioner characterized respondent's decision regarding an alternative placement and continued placement in home instruction for her son as in excess of what a non-disabled student would have received for the same behavior exhibited by her son (id.).  As respondent's CSE determined that her son's behavior was a manifestation of his disability, petitioner contended that her son should have been returned to his "regular placement" on November 28, 2005, as initially stipulated (id.).  Petitioner requested that an appropriate IEP, FBA, and BIP be provided and implemented in the least restrictive setting prior to the consideration of an alternative placement for her son (Dist. Ex. 67 at p. 4).

 

            Respondent scheduled a resolution meeting, which was held on December 21, 2005 (Dist. Ex. 68).  The CSE convened on December 22, 2005 without petitioner and recommended placement in an 8:1:1 center-based class, effective January 4, 2006 (Parent Ex. 125, Tr. p. 416).  Petitioner was informed of this recommendation by letter dated December 29, 2005 (id.).  In a letter dated December 31, 2005, petitioner rejected the recommended center-based BOCES placement (Parent Ex. 127).

 

            On January 3, 2006 petitioner consented to an evaluation of the student by respondent's school psychologist (Parent Ex. 132).  In a letter dated January 4, 2006, respondent informed petitioner that the student's options were to continue to receive homebound instruction or return to respondent's middle school (Tr. pp. 417-18; Parent Ex. 133).  The student returned to school in the middle school on January 6, 2006 (Tr. p. 419).

 

By letter signed January 23, 2006, petitioner's counsel amended petitioner's hearing request because a CSE was held and an IEP was developed for the student subsequent to the date of the original impartial hearing request (Parent Ex. 94).  In addition to her original assertions, petitioner stated that despite the fact that a "nexus" was found at the November 22, 2005 manifestation determination meeting, respondent did not inform petitioner that her son had a right to return to school (Parent Ex. 94 at p. 2).  Petitioner alleged that respondent's CSE informed her that her only options at that time were a home instruction or an alternative program (id.).  Under those conditions, petitioner consented to home instruction (id.).  Petitioner also asserted that respondent failed to conduct a complete psychological evaluation of her son, and neither provided the independent educational evaluation she requested, nor initiated an impartial hearing to show that respondent's psychological evaluation was appropriate (id.).  Finally, petitioner asserted that the December 22, 2005 IEP was invalid based on a lack of parental participation and its failure to provide an appropriate program for the student because it was not in the least restrictive environment (id.). 

 

Petitioner sought an independent psychological evaluation at public expense, and an FBA and a BIP developed with the assistance of behavioral experts not employed by respondent, including petitioner's educational and behavioral consultants (Parent Ex. 94 at p. 3).  In addition, petitioner sought placement in respondent's middle school with appropriate support and services, and sought compensatory education for the period of time the student was not in school due to respondent's alleged failure to follow federal and state law.

 

An impartial hearing convened on January 11, 2006 and concluded on February 28, 2006, after five days of hearings.  By decision dated April 24, 2006, the impartial hearing officer found that petitioner failed to meet her burden of proof (IHO Decision, p. 21).  She determined that the 2005-06 IEP was appropriate and was reasonably calculated to enable the student to receive educational benefits (id.).  Noting that the 8:1:1 center-based program indicated that it would complete a new FBA, develop a BIP, and provide counseling, the impartial hearing officer directed the CSE to revisit and increase counseling services for the student (IHO Decision, p. 22).  In addition to determining that the student's disability needed to be reviewed and clarified by the CSE, the impartial hearing officer determined that an updated medical and psychiatric examination should be obtained (id.).  Because respondent agreed to pay for an independent psychological evaluation, the impartial hearing officer directed its immediate scheduling (id.).

 

A second resolution meeting was held on February 1, 2006. At that time, respondent offered petitioner an independent educational evaluation (Tr. p. 420). This offer was withdrawn when petitioner refused to agree to placement in the 8:1:1 center-based program recommended by the December 2005 CSE (Parent Ex. 136, Tr. p. 420). By letter dated February 2, 2006 petitioner rescinded her permission for the school psychologist to evaluate her son (Parent Ex. 136).

 

6          On appeal, petitioner argues that the impartial hearing officer erred by failing to address whether the July 29, 2004 CSE denied her son a FAPE by recommending the Westmoreland program, and by failing to find that the CSE's recommendations of alternative placement and interim home instruction in November 2005 were inappropriate.  In addition, petitioner alleges that the impartial hearing officer erred by failing to decide that respondent denied her son a FAPE by not returning him to his alleged pendency placement at respondent's middle school when the impartial hearing was requested. 

 

            Petitioner seeks the annulment of those portions of the impartial hearing officer's decision that found that the recommended 8:1:1 center-based program and the December 22, 2005 IEP were appropriate.  She also seeks the annulment of the impartial hearing officer's sua sponte determination that the CSE should review and clarify the student's classification.  Petitioner requests an order which directs respondent to contract for a "professional FBA and BIP," and to develop an appropriate IEP subsequent to the FBA and BIP which addresses the student's target behaviors.  In addition, petitioner requests an order which directs respondent to provide adequate special education services to the student within the general education setting, provide compensatory education for all periods that the student remained on home tutoring when he allegedly should have been "in school," and appropriately train staff by contracting with qualified instructors, if necessary.

 

            A purpose behind the Individuals with Disabilities Education Act (IDEA) 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]).1  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 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]).  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]).

 

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 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). 

 

            With respect to the claim that the impartial hearing officer erred by failing to address whether the July 29, 2004 CSE denied petitioner's son a FAPE by recommending the Westmoreland program, I  conclude that such claim is moot. The impartial hearing officer indicated that petitioner agreed to the July 29, 2004 IEP without requesting an impartial hearing or revoking her consent for placement (IHO Decision, p. 20).   Although I note petitioner's initial dissatisfaction with the July 29, 2004 IEP and recommended placement at the Westmoreland program (Dist. Exs. 20, 21, 24), minutes from the CSE meeting held on September 17, 2004 indicate that petitioner was willing to place her son for 20 weeks in a program at Westmoreland (Dist. Ex. 27 at pp. 1, 3).  An annotated CSE sign-in sheet indicates that petitioner visited the Westmoreland program the morning prior to the September 17, 2004 CSE meeting (Tr. p. 364; Dist. Ex 27 at p. 4).  The record also includes petitioner's written consent, dated September 17, 2004, for her son's placement at the Westmoreland program (Dist. Ex. 27 at p. 3).  In the absence of controversy regarding the Westmoreland program, and in light of the fact that the 2004-05 school year is over, I find that, under the circumstances presented, a determination that the student's prior placement was inappropriate would have no actual effect on the parties.  Accordingly, I decline to review the merits of this claim (see Application of a Child with a Disability, Appeal No. 02-086). 

 

            Petitioner asserts that respondent violated her son's procedural and substantive rights by its failure to convene a valid CSE, and by recommending an 8:1:1 center-based program without first providing appropriate aids and services in a less restrictive environment, including a meaningful FBA and BIP.

 

            Petitioner first seeks the annulment of the impartial hearing officer's determination that the December 22, 2005 IEP was appropriate, based on her absence from the December 22, 2005 CSE meeting.  Respondent's CSE Chairperson asserts that she believed petitioner was able to attend the December 22, 2005 CSE meeting and was not advised otherwise (Tr. pp. 81-83). 

           

            The IDEA and its implementing regulations require that the CSE include the parents of the child (20 U.S.C. 1414[d][1][B][i]; 34 C.F.R. 300.344[a]).  If neither parent can participate in a meeting in which a decision is to be made relating to the educational placement of their child, the school district must use other methods to ensure their participation, including individual or conference telephone calls, or video conferencing (34 C.F.R. 300.501[c][3]; see 8 NYCRR 200.5[d][1][iii]); however, a placement decision may be made by a group without the involvement of the parents, if the school district is unable to obtain the parents' participation in the decision (34 C.F.R. 300.501[c][4]; see 8 NYCRR 200.5[d][4]).  In this case, the school district must have a record of its attempt to ensure their involvement (34 C.F.R. 300.501[c][4]; see 8 NYCRR 200.5[d][4]) and to arrange a mutually agreed on time and place (34 C.F.R. 300.345[d]; see 8 NYCRR 200.5[d][3]).  Such records include:  1) detailed records of telephone calls made or attempted and the results of those calls; 2) copies of correspondence sent to the parents and any responses received; and 3) detailed records of visits made to the parent's home or place of employment and the results of those visits (34 C.F.R. 300.345[d]).

 

            On November 22, 2005, petitioner provided written consent authorizing home instruction; petitioner's consent form included an annotation that the CSE would reconvene on December 13, 2005 to further consider placement (Dist. Ex. 63).  By letter dated December 13, 2005, respondent's CSE Chairperson agreed to cancel the December 13, 2005 CSE meeting, pursuant to petitioner's request to hold a resolution meeting prior to reconvening the CSE meeting (Dist. Ex. 70).  By letter dated December 15, 2005, respondent's CSE Chairperson offered petitioner the choice of two CSE meeting dates (Dist. Ex. 72).  Responding to petitioner's letter, respondent's CSE Chairperson acknowledged that petitioner was unable to confirm an exact time for the CSE meeting to be held on December 22, 2005 (Dist. Ex. 74).  She offered petitioner a choice of two meeting times on December 22, 2005, and stated that if respondent were not contacted by petitioner by December 21, 2005, the CSE meeting would be held on December 22, 2005 at 12:30 pm (id.). 

 

            On the scheduled date of the CSE meeting, respondent's superintendent transmitted a facsimile to petitioner and stated that she tried to contact petitioner at 9:50 am, but had not been successful (Dist. Ex. 76).  Respondent's superintendent requested petitioner's signature regarding a related matter, by 12:30 pm, prior to the CSE meeting (id.).  She also transmitted a second facsimile to petitioner on the same day, and reiterated that the CSE would meet at 12:30 pm (Dist. Ex. 77).  Petitioner was offered the opportunity to be conferenced into the CSE meeting, if she could not attend (id.).  Respondent's superintendent noted that petitioner's advocate had been contacted that morning and had been apprised of the 12:30 pm meeting (id.). By facsimile dated December 22, 2005, 10:20 am, petitioner informed respondent, 

 

"Wanted to call, but ended up in crisis apps. since 8:00 am.  Don't feel that resource can meet [the student's] needs socially academically or emotionally.  I would like to see the FBA completed and implemented in regular setting before we go to alt. placement.  [The social worker] needs the data used to develope (sic) FBA- Please mail ASAP.  This was previously requested in CSE mtg.  Tks."  (Dist. Ex. 78) 

 

            The record shows that respondent's CSE conducted a meeting relating to the educational placement of petitioner's son on December 22, 2005, in the absence of petitioner (Tr. p. 76).  Although petitioner's facsimile communicated her position with regard to her son's placement, it did not clearly inform the CSE of petitioner's intent to attend or abstain from participating in its December 22, 2005 meeting.  As discussed above, the record includes documentary evidence regarding respondent's attempts to schedule the CSE meeting (Dist. Ex. 79) to discuss the student's placement (Dist. Exs. 72, 74, 76, 77).  I find that respondent has satisfied its obligation to maintain a record of its attempts to ensure petitioner's involvement and to arrange a mutually agreed on time and place for its December 22, 2005 CSE meeting.

 

             Petitioner also requests an order which directs respondent to contract for a "professional FBA and BIP," and to develop an appropriate IEP subsequent to the FBA and BIP which addresses the student's target behaviors.  In addition, petitioner seeks the annulment of those portions of the impartial hearing officer's decision that found that the BOCES center-based 8:1:1 placement to be appropriate, and seeks special education services for her son within the general education setting.

 

            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).  Where behavior impedes a child's learning, the CSE must properly assess that behavior3 as an initial step in developing an appropriate IEP (Application of the Bd. of Educ., Appeal No. 05-031; Application of a Child with a Disability, Appeal No. 03-057; Application of a Child with a Disability, Appeal No. 02-032; Application of a Child with a Disability, Appeal No. 01-094; Application of the Bd. of Educ., Appeal No. 01-060).

 

            The record shows that from September 2004 to March 2005 of his seventh grade year, the student attended the Westmoreland program, where he responded well to the structured setting and the implementation of a point system (Tr. pp. 363-64, 749; Dist. Ex. 29 at p. 1).  The record further shows that when the student returned to respondent's middle school, respondent used various strategies to address his behavior.  He was provided counseling services, a 1:1 aide and continued use of a point system (Tr. p. 884; Dist. Ex. 32 at p. 3).  I note that respondent's teachers were trained to implement the point system that has been used at the Westmoreland program (Tr. pp. 867-68).  Despite achieving "pretty good levels" with the point system, disciplinary infractions continued (Tr. p. 884).  Sometime after the student's return to the middle school, the use of the point system and the services of the aide were discontinued, and a mentor was provided as a regular education support (Tr. pp. 848, 850-51).

 

            For the 2005-06 school year, when the student was in the eighth grade, he was provided indirect consultant teacher services to help his teachers develop behavior and academic strategies for use in the classroom (Tr. pp. 40, 854-55; Dist. Ex. 49 at p. 2).  Respondent also had offered resource room services to provide a place for the student during "down time" or a smaller environment, if needed (Tr. pp. 851-52; Dist. Ex. 48 at p. 2).  However, petitioner rejected the resource room services and did not want her son to have a 1:1 aide (Tr. p. 40; Dist. Ex. 48 at p. 2).

 

            On September 14, 2005, respondent's guidance counselor and school psychologist developed a BIP for the student (Dist. Ex. 50).  The BIP provided that progress would be monitored by weekly reports from the guidance counselor, teacher/faculty referrals and monthly teacher/mentor evaluations, as well as progress reports every five weeks (Dist. Ex. 50 at p.2).  Petitioner found the BIP to be inadequate and suggested revisions (Parent Ex. 114).  Respondent's FBA team considered petitioner's suggestions on October 27, 2005 and completed revisions (Dist. Ex. 61 at p. 2).  Between September and November 2005, the student's behaviors escalated, and he received numerous behavior referrals and his grades deteriorated (Tr. p. 885; Dist. Ex. 80 at pp. 4-7; Parent Exs. 113; 118).

 

            On November 2, 2005 a draft FBA was developed by respondent's guidance counselor and school psychologist (Dist. Ex. 54).  Another draft FBA was developed on November 15, 2004 (Dist. Ex. 58).  Both drafts describe the student's difficulties with peer interactions and with authority figures, and provide specific information about the behaviors the student exhibited (Dist. Exs. 54 at p. 1; 58 at p. 1).  Problematic situations and antecedent behaviors are described, and consequences for each situation are noted (id.).  The November 15 draft contains more specific information regarding the frequency of the student's behavioral episodes, and also includes additional information provided by the student's mother (id.).

 

            The CSE met again on November 22, 2005 for a program review and reviewed the student's FBA and BIP (Dist. Ex. 61 at p. 2).  Minutes from the meeting indicated that since the beginning of the school year there were several revisions to draft FBA/BIP's resulting in multiple documents (Dist. Exs. 61 at p. 2). Based upon the information before me, I find that respondent considered strategies, including positive behavioral interventions and supports to address the student's problem behavior and developed adequate FBAs and BIPs for the student (see Application of a Child with a Disability, Appeal No. 06-045). 

 

            With respect to the appropriateness of the student's recommended program and placement, the school psychologist testified regarding the student's behavior.  Motivators that were successful for the student at Westmoreland were not successful in respondent's school setting (Tr. p. 865).  The school psychologist also testified that she could not envision a BIP that would be successful for the student in a typical middle school setting, based on the student's experience with a 1:1 aide, the personalities involved, the transitions, the unstructured hallways between classes, and the large group instruction in the classrooms (Tr. pp. 881-82).  Respondent's CSE Chairperson testified that there were no services that could be implemented that would be appropriate to the student's needs within the middle school environment (Tr. pp. 306-07).  She also stated that his behavior and management needs were "beyond the direct consultant teacher service" and that he would not benefit from resource room services (Tr. p. 302).

 

            Respondent's CSE Chairperson stated that the Westmoreland program was rejected by petitioner and her son, and the 15:1:1 class was not appropriate (Tr. pp. 302-03).  The 15:1:1 class was not academically driven in the same manner as the 8:1:1 center-based program, which would afford the student an opportunity to earn a Regents diploma (Tr. p. 303).  Respondent's school psychologist recommended that the student be placed in a small structured environment with specific rules and direct consequences (Tr. pp. 821-22; Dist. Ex. 14 at p. 4).  She stated that the 8:1:1 center-based program would address his academic needs by individualizing his program and providing a Regents track (Tr. pp. 780-81).  With respect to his behavioral and social needs, the student is already familiar with the point system (Tr. p. 781).  Staff members are specifically trained to intervene during behavioral incidents because the classroom is so small (Tr. p. 790).

 

            Similarly, the middle school principal testified that the student is more successful in a structured environment (Tr. pp. 570-71) and that the student informed her that he was receptive to attending the 8:1:1 program if he could earn a Regents diploma (Tr. pp. 562-63).  The principal for special education at the Oneida BOCES (BOCES principal) testified at great length regarding the program being recommended to the student (Tr. pp. 214-54).    She characterized the students attending the 8:1:1 center-based program as having poor peer relationships, and poor coping skills, in addition to needing a small, structured classroom setting, intense supervision, consistent positive reinforcement and intense support from staff (Tr. p. 248).  The BOCES principal stated that the program is very structured and in a small environment which provides constant positive reinforcement (Tr. p. 224).  The program itself has a behavior modification program (Tr. p. 218).  The behavior plan is very specific to that student's needs, such that not all students have BIPs (id.).  The BOCES principal also testified that the 8:1:1 center-based program meets management needs more efficiently than a less restrictive setting does (Tr. p. 253).   She further stated that the program is very successful moving students from the 8:1:1 center-based program to LRE programs (Tr. pp. 233-34).  The BOCES principal determined that the program and its structure would meet the student's needs (Tr. pp. 235-36). 

 

            Based upon the foregoing, I agree with the impartial hearing officer and I find that petitioner failed to meet her burden to show that the December 22, 2005 IEP was not appropriate (Schaffer v. Weast, 126 S.Ct. 528 [2005]).  Accordingly, I find the program recommended in the student's December 22, 2005 IEP was reasonably calculated to enable the student to receive educational benefit and that he was offered a FAPE in the LRE for the 2005-06 school year.  

  

            Petitioner also requests "compensatory education" for all periods that her son received home instruction when petitioner alleges that "he should have been in school."  Petitioner asserts that her son should have received educational services at respondent's middle school as a result of the November 22, 2005 manifestation determination and based upon pendency requirements.  Because petitioner has failed to adequately define the period(s) for which she is seeking additional services, I will limit my analysis to the period of home instruction the student received during the 2005-06 school year.

 

            With respect to petitioner's claim that her son should have been returned to respondent's middle school after the determination that his behavior was a manifestation of his disability, the record shows that respondent's CSE met on November 22, 2005 to review the student's FBA and BIP (Dist. Ex. 61 at p. 2).  The CSE also met that day to review the student's IEP (Dist. Exs. 49; 61 at p. 4).  The CSE meeting minutes indicated that the student's August 31, 2005 IEP had been implemented (Dist. Ex. 61 at p. 4).  The CSE meeting minutes further indicated that the FBA and BIP had been in place since the beginning of the school year and had been revised several times (id.).  The November 22, 2005 CSE discussed a change of placement (id.). District CSE personnel believed that the student would be more appropriately placed in one of the smaller, structured settings provided by BOCES (id.).  Respondent's November 22, 2005 CSE recommended home instruction until the off-campus program was visited by the CSE Chairperson and petitioner (Tr. p. 87; Dist. Exs. 62 at p. 2; 86 at p. 4).  Petitioner provided written consent for home instruction (Dist. Ex. 63) and the CSE agreed to reconvene on December 13, 2005 to further discuss the student's placement (Dist. Ex. 61 at p. 5).  Under these circumstances, I find that the November 22, 2005 CSE reviewed the student's placement, determined that he would be more appropriately placed in one of the smaller, structured settings provided by BOCES, and arranged for home instruction, pending placement (8 NYCRR 201.4[e]).

 

            With respect to petitioner's pendency claim, petitioner filed an initial impartial hearing request on December 5, 2005 (Dist. Ex. 67).  At the time of the impartial hearing request, the student was receiving home instruction pending the parties' review of an off-campus program (Dist. Ex. 62 at p. 2).  Another CSE meeting was held on December 22, 2005 (Dist. Ex. 86).  As noted above, petitioner disagreed with the placement recommendation (Parent Ex. 126).  Respondent advised petitioner that her son's pendency placement was "Holland Patent Schools effective immediately" (Dist. Ex. 133).  The parties agreed to return the student to respondent's middle school program (Tr. p. 418; Parent Ex. 133).  The record shows that the student received home instruction until he returned to respondent's middle school on January 6, 2006, pursuant to an agreement between the parties (id.).  Under the circumstances, I find that the student's pendency rights were not violated (20 U.S.C. 1415[j]; 34 C.F.R. 300.514; N.Y. Educ. Law 4404[4]).  

 

            State Review Officers have awarded equitable relief in the form of additional educational services to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Application of the Bd. of Educ., Appeal No. 03-075; Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030).  As a result of my findings above, there is no basis for ordering respondent to provide the student with additional services.

 

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

 

            THE APPEAL IS DISMISSED.

 

Dated:

Albany, New York

 

__________________________

 

July 21, 2006

 

JOSEPH P. FREY
STATE REVIEW OFFICER

 

1 Congress recently amended the IDEA, effective July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647 [2004] [codified as amended at 20 U.S.C. 1400, et. seq.]).  Since most of the relevant underlying events in this appeal occurred subsequent to that date, all references to the IDEA used herein refer to the newly amended provisions of the IDEA, unless otherwise specified.

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]).