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The State Education Department
State Review Officer

No. 06-135

 

 

 

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 New York City Department of Education

 

 

Appearances:
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent

DECISION

            Petitioner appeals from the decision of an impartial hearing officer which ordered the placement of a student in an interim alternative educational setting (IAES).  The appeal must be sustained in part.

When the impartial hearing convened on November 6, 2006, the child was nine years old and attending P.S. 372, the Children's School (Children's School), in Brooklyn, where he was in a fifth grade Collaborative Team Teaching (CTT) "inclusion" class, and receiving services of a one-to-one crisis management paraprofessional (Tr. pp. 10, 13, 15; Dist. Ex. B at p. 1).  At the time of the impartial hearing, respondent also was providing the child with related services of counseling, occupational therapy, and speech-language services (Tr. p. 10; Dist. Ex. B at p. 1)

The record does not indicate when petitioner's son was initially classified as a student with a disability.  According to an October 4, 2006 psychiatric evaluation report, petitioner's son has been receiving special education services since kindergarten, when he was first identified as having language delays (Dist. Ex. G at p. 3).  The report refers to a previous diagnosis of an attention deficit hyperactivity disorder (ADHD), confirms this diagnosis, and also offers a diagnosis of an impulse disorder not otherwise specified (NOS) (Dist. Ex. G at pp. 3, 5).  Cognitive assessment using the Wechsler Intelligence Scale for Children - Fourth Edition (WISC-IV) reportedly was attempted in August 2004 but was not completed due to the child's resistance and activity level (Dist. Ex. A at p. 2).  A private psychiatric and neurological evaluation in August 2004 offered a diagnosis of ADHD and noted that a complete history of the child could not be obtained because the child's mother was "not cooperative" (Dist. Ex. A at p. 3).  A September 2006 neuropsychological evaluation report indicated that petitioner's son presented as severely compromised cognitively when the August 2004 cognitive evaluation was attempted (Dist. Ex. F at p. 11).  At a CSE review on November 26, 2003, respondent's CSE classified the child as a student with an other health-impairment (see Dist. Ex. M at p. 1).  The child's eligibility for services as a student with an other health-impairment (see 8 NYCRR 200.1[zz][10]) was not in dispute at the impartial hearing.

According to the record, petitioner's son was first assessed when he was in kindergarten and he was subsequently placed in a kindergarten class for children with speech-language delays with a student to staff ratio of 12:1+1 (Dist. Ex. G at p. 3).  The record reveals that at that time petitioner began to receive "conflicting information" about her son's diagnosis, with one school psychologist suggesting that the child exhibited characteristics of autism (id.).  A report of a comprehensive evaluation conducted at the time the child was in kindergarten recommended that petitioner's son be placed in a private school to address his educational and behavioral needs; however, the record  indicates that no appropriate private school openings were available at that time (id.). 

In first grade, the child was placed in a class with a student to staff ratio of 6:1, at P.S. 77, a school for autistic children, where he was described as the most verbal and highest functioning child in the class (Dist. Ex. G at p. 4).  The record indicates that the child remained at that school for a year and a half until his mother requested a CSE review (id.).

The child enrolled in the Children's School in September 2003, where he began the second grade (Tr. p. 13).  An individualized education program (IEP) dated November 26, 2003, when the child was seven years old, indicated that petitioner's son was performing at kindergarten level in reading, writing and math, and that he had difficulty with transitions and exhibited tantrums and acting out behavior which required "highly intensive supervision" (Dist. Ex. M. at pp. 3-4).  The November 26, 2003 CSE recommended that the child's placement be deferred to respondent's Center Based Support Team (CBST) (Dist. Ex. M at p. 1).  At that meeting, the CSE considered and rejected continuing the child's placement in a CTT class and also considered and rejected placing the child in a special class full time at a specialized public school (Dist. Ex. M at p. 13).  The record does not reveal whether a placement was identified as a result of the CSE's recommendation that the child's placement be deferred to the CBST, but the child continued to attend the Children's School for the balance of the 2003-04 school year (Tr. p. 13). 

A June 2004 interim service plan, when the child had completed the second grade, recommended a 12:1+1 "special class/specialized school" placement beginning in July 2004 and also recommended a 12-month school year "for summer 2004 only" (Dist. Ex. N at p. 1). 

The child continued to attend the Children's School in the 2004-05 school year when he was in the third grade (Tr. pp. 13, 22).  He continued at that school during the 2005-06 school year for the fourth grade and also continued enrollment in a CTT classroom (Tr. pp. 13, 22, 25, 30-31).  The record contains 21 reports of incidents between November 1, 2005 and May 19, 2006 describing the child's episodes of punching, biting, kicking, head-butting and running away during the fourth grade (see Dist. Ex. L).  The social worker who provided counseling services to petitioner's son and who had been working with the child since the second grade reported that the child was not always able to understand social cues or assess social situations and needed reminders about inappropriately touching others or interfering with the personal space of others (Dist. Ex. I; Tr. p. 47).  She also reported that the child's aggressive episodes sometimes required intervention from several adults (Dist. Ex. I). 

A functional behavioral assessment (FBA) of the child prepared during the 2005-06 school year (Dist. Ex. J at pp. 1-6) noted that his episodes of assault occurred three to five times per day, and attempts to run out of the room occurred two or three times per day (Dist. Ex. J at p. 1).  The FBA also reported that the child refused to work eight to ten times per day, initiated inappropriate contact with others 15 to 20 times per day, threw objects three to eight times per day, damaged property once per day, climbed furniture three to five times per day and harmed himself by hitting himself in the head ten to 15 times per day (Dist. Ex. J at pp. 1-2).  The FBA noted that the child's behaviors were precipitated by a number of factors including frustration over academic demands, unstructured time, return from weekends or vacations, and conflicts with peers and staff (Dist. Ex. J at p. 3).

Respondent implemented a behavioral intervention plan (BIP) for the child during the 2005-06 school year (see Dist. Ex. J at pp. 7-9; see also Tr. pp. 27-28).  The BIP included a gradual introduction of target behaviors and brief increments of measurement (see Dist. Ex. J at pp. 7-9; Tr. pp. 27-28).  The child's performance with respect to that plan was "very inconsistent overall" (Tr. p. 28).

According to the record, in April 2006 respondent and petitioner discussed having updated evaluations of the child done by respondent (Dist. Ex. A at p. 4).  In May 2006, respondent scheduled a psychiatric evaluation for June 2006, but petitioner did not bring her son to that evaluation (Dist. Ex. A at p. 5).  The record further indicates that the child was in need of a number of additional evaluations so that he could be appropriately placed, but that respondent was unable to obtain consent from petitioner for these evaluations (Dist. Ex. A at p. 5).  According to the record, during this time petitioner indicated that she preferred that her son be evaluated privately and took steps to make arrangements (Dist. Ex. A at pp. 6-7).  However, the record also indicates that during this time petitioner did not provide respondent's CSE with any evaluation reports and the earliest petitioner was able to schedule any appointments for a psychoeducational evaluation or a psychiatric evaluation was September 2006 (Dist. Ex. A at pp. 4-7).  The record also indicates that petitioner was notified of a May 18 annual review, but that petitioner wrote that she was unable to attend on the date scheduled (Dist. Ex. A at p. 4).  According to the record, conferences were scheduled on May 11, 2006 and May 25, 2006, and petitioner informed respondent that she would not be attending them and that they should be done at the CSE level, and not at the school (id.).

On June 12, 2006, respondent requested an impartial hearing (Hearing 1) "to obtain an order compelling [petitioner] to produce [her son] for a re-evaluation, without parental consent" (Dist. Ex. A at p. 3; see 8 NYCRR 200.5[b][3], [i] and [j]; see also 34 C.F.R. § 300.300[c][1][ii] [effective October 13, 2006])2.  At Hearing 1, petitioner provided a report from a July 26, 2006 private evaluation by a nurse practitioner who offered diagnoses of ADHD, disruptive behavior disorder, hypotonia, graphomotor disorder, learning disabilities and "Minor Neuromotor Abnormalities," and indicated that she was attempting to arrange additional evaluations (Dist. Ex. A at pp. 6-7).

Petitioner's son attended summer school for six weeks following the 2005-06 school year (Tr. pp. 25, 28-29).  The child's summer school teacher, who had also been his fourth grade special education teacher, reported that she observed improvement in his behavior during the first four weeks of the six-week summer session.  She also indicated that during this time petitioner's son wrote more than he had in the last six months of the 2005-06 school year (Tr. pp. 29-30).  The teacher attributed this relative success to the structure of the extended school year program, which consisted of five children, one teacher and one paraprofessional (Tr. p. 29).  She noted that, unlike the general education class in which the child had received CTT services in 2005-06, the 2006 summer program had a consistent schedule with no transitions and fewer pull-out services (id.).

Although there was some improvement, the child's behavior continued to be problematic during the summer session. His teacher during this period testified that  "kicking, biting, punching, head butting, knocking things over, throwing things, ripping things up, breaking pencils" "were still present" (Tr. pp. 29, 30).

In an impartial hearing decision dated August 31, 2006, the impartial hearing officer in Hearing 1 determined that petitioner's son needed to be reevaluated, that respondent had taken reasonable measures to obtain consent for such evaluations, and that the parents had refused consent.  The impartial hearing officer concluded that respondent's CSE had to proceed with its own evaluations in a timely fashion, and that a number of evaluations should be performed by October 5, 2006 without petitioner's consent (Dist. Ex. A at pp. 7, 8).  The impartial hearing officer also directed respondent's CSE to convene within ten days following the completion of the ordered evaluations to recommend an appropriate placement for petitioner's son (Dist. Ex. A at p. 8).  The impartial hearing officer also acknowledged petitioner's desire to obtain "independent opinions," authorized the CSE to substitute petitioner's evaluations for its own if such were provided to it and were determined by the CSE to be adequate, and directed respondent's CSE, in any event, to consider any evaluation reports petitioner provided to it (Dist. Ex. A at pp. 7, 8).

Petitioner's son continued in a CTT class at the Children's School at the beginning of the 2005-06 school year when he began the fifth grade (Tr. p. 13).  Pursuant to the impartial hearing officer decision in Hearing 1, respondent conducted a neuropsychological evaluation in September 2006 (see Dist. Ex. F).  The school psychologist who conducted the evaluation described the child as "marginally motivated to perform in the testing situation" as evidenced by behaviors which included running around the room, screaming, and throwing test materials (Dist. Ex. F at p. 2).  The evaluator reported that the child's expressive language was intelligible despite mild impairments in articulation and his receptive language skills were poor (Dist. Ex. F at pp. 1-2).  The child's gross motor skills were described as within expectations and the evaluator indicated that petitioner's son had "no difficulty going up or down stairs" (Dist. Ex. F at p. 1).  Administration of the Woodcock Johnson Tests of Achievement - III yielded a broad reading grade equivalent (and percentile) score of 2.3 (2), a broad math grade equivalent score of 1.7 (1), an oral language cluster score of K.7 (1) and a spelling score of K.6 (Dist. Ex. F at pp. 3-5).  On the Developmental Neuropsychological Assessment (NEPSY), the child's performance on the subtest measuring memory and learning yielded a score in the borderline range (Dist. Ex. F at p. 5).  Scores on NEPSY subtests measuring language processing, visuospatial processing, attention/executive functioning and sensorimotor processing were "Well Below Expected Level" (Dist. Ex. F at p. 6).  Completion by the child's teacher of the Behavior Rating Inventory of Executive Function (BRIEF - Teacher Profile) yielded a behavioral recognition index of 97 and a global executive composite of 90, both well above the BRIEF clinically significant score of 65 (Dist. Ex. F at p. 8).  The evaluator noted that the child's social/emotional and executive functioning were consistent with an autism spectrum disorder and that he exhibited some but not all of the criteria for a diagnosis of autism (Dist. Ex. F at pp. 9-10).  The school psychologist also indicated that the child's emotions affected his academic progress (Dist. Ex. F at p. 12).  The evaluator recommended a classification of autism, that petitioner's son be placed in a special class, and that he be provided with counseling, speech therapy, and occupational therapy as related services (Dist. Ex. F at p. 11).

An October 3, 2006 social history update noted that the child's mother reported that the child did not exhibit behavior problems at home but that he had difficulty interacting with peers and did not have friends in the neighborhood (Dist. Ex. B at pp. 2, 3).  The child's mother also indicated that she was not pleased with her son's progress in the CTT class at the Children's School and opined that he was not getting what he needed in his current placement (Dist. Ex. B at p. 4).  The social history also indicates that petitioner stated her belief during the interview that a class placement other than the child's current one "would not be appropriate" (id.).

An October 3, 2006 progress report completed by the child's fifth grade general education and special education teachers noted that petitioner's son was able to perform third grade level math with one-to-one teacher support and indicated that it was not possible to assess the child's reading level because he refused to participate in a reading inventory (Dist. Ex. E at p. 1).  In grammar and social studies, the child was able to focus for brief periods in a group of three to six students when assisted by an aide (id.).  When asked to write or type, the child would become extremely agitated; when agitated, he could sometimes be calmed but at other times his behavior would escalate and he would require the assistance of the school's crisis intervention teacher (id).  The child required constant supervision or he would leave the classroom (id.).  His teachers indicated on that report that "[d]espite the fact that his behavior seems to be currently contained, addressing his academics require[d] many interventions, constant teacher supervision, reinforcements, frequent breaks, modification, and many adult supports (id.).

An FBA dated October 4, 2006 noted that petitioner's son required the assistance of a one-to-one crisis paraprofessional, a teacher, and a coach with an autism background, to provide continuous assistance with his behavior difficulties (Dist. Ex. C at p. 2).  The FBA also reported that it was difficult to identify appropriate reinforcers that would assist in modifying the child's behavior because of his changing preferences with respect to such items (id.).

The child's fifth grade special education teacher testified that the child had, among other things, "tried to head butt" her, had "shoved a desk" at her, and "had his hands around [her] neck choking [her]" (Tr. p. 38).  The child's special education teacher in his fifth grade CTT class testified that incidents of physical aggression against teachers had been observed or reported to her.  In one case, the child had taken a plastic knife and was swinging it at, and saying threatening things to, a teacher (Tr. p. 42).  The child had subsequently shoved a teacher (id.).  The child's fifth grade special education teacher also testified that it was necessary to call the "crisis intervention" teacher assigned to the school "several times a week" (Tr. pp. 34-35).  Respondent's social worker, who was currently seeing the child twice weekly for counseling (Tr. p. 45), described the difficulties that petitioner's son experienced in his current placement as well as the inappropriate behaviors that ensued as a result of those difficulties (Tr. pp. 46, 47, 49).

The principal of the Children's School testified that as a result of being frustrated with school work and in resistance to it the child had "hit, kicked, punched, been very physical with adults," and that this conduct occurred "approximately once a week" (Tr. p. 16).  The child's fourth grade and fifth grade special education teachers both testified regarding the child's behavior difficulties and described actions which had been taken by various school staff to address the child's behaviors (see Tr. pp. 26-28, 34-39).  This included, but was not limited to, developing and implementing a behavioral intervention plan, providing petitioner's son with a one-to-one aide, obtaining the assistance of the school crisis intervention teacher, providing the child with "breaks and rewards" built in throughout the school day, modifying the child's curriculum, and providing the child with small group instruction within the classroom.

On the morning of October 16, 2006 the child grabbed his paraprofessional's wrists and told her that he didn't want to do his work (Dist. Ex. H at pp. 1, 2).  As a result of that behavior, the child lost his recess (Tr. p. 41).  When the other children in his class were lining up for recess, and after being reminded by his teacher that he would not be able to go, petitioner's son kicked a desk, attempted to throw a chair, stepped on the teacher's foot, kicked her shin, and hit her on her chin, which left a red mark (Dist. Ex. H at p. 7).  The child received a five day "in school" suspension as a result of his conduct that day (Tr. pp. 19-20).

By letter dated October 19, 2006 respondent requested an expedited impartial hearing to obtain an order to change the placement of petitioner's son to an appropriate IAES (IHO Decision, p. 2; Tr. pp. 4, 17).3  Respondent requested the change of placement on the basis that the child's continued behavior had resulted in "substantial injuries" to the staff at his current placement (Tr. p. 8).  Respondent requested that the impartial hearing officer order the child placed at respondent's Rudy Giuliani School (RGS) for a period of 45 days (Tr. pp. 9, 15).

The impartial hearing was scheduled for November 6, 2006, but petitioner did not appear (Tr. pp. 4-5).  The impartial hearing officer indicated that the impartial hearing was scheduled for 11:00 a.m., that "contact with [petitioner] at the telephone number given [by her] was attempted," and that when petitioner did not appear by 12:05 p.m., the impartial hearing officer determined to proceed with the impartial hearing (Tr. pp. 4-5).  In her decision she noted that petitioner "was notified by mail of the impartial hearing and several attempts were made to contact petitioner by telephone" (IHO Decision at p. 2).

At the impartial hearing respondent presented testimony from a number of persons who had first hand experience and/or instructional contact with the child, including the vice principal of the Children's School (Tr. pp. 11-23), the teacher who was the child's special education teacher during the 2005-06 school year when the child was in the fourth grade and also during summer 2006 (Tr. pp. 24-31), the teacher who had been the child's special education teacher during the 2006-07 school year to the date of the impartial hearing (Tr. pp. 32-43), and a clinical social worker who was the child's current counselor and who had worked with petitioner's son since the second grade (Tr. pp. 43-52).  Respondent also presented testimony by the principal of RGS, the location of the proposed IAES (Tr. pp. 52-62).  Respondent submitted a number of exhibits, including a number of evaluations resulting from the decision of the impartial hearing officer order in Hearing 1 which had ordered that petitioner's son be reevaluated.4

At the conclusion of the impartial hearing, after respondent had summarized its position, the impartial hearing officer stated on the record that she believed "time was of the essence" and that it was appropriate therefore to order that petitioner's son be placed at RGS as an interim placement "effective immediately" (Tr. p. 64).  The impartial hearing officer rendered a formal written decision dated November 15, 2006.  In that decision, after reviewing evidence of the child's academic performance and behavior, the impartial hearing officer concluded that the impartial hearing testimony "clearly shows" that the child was "not making measurable academic progress" and "demonstrated frustration in the classroom setting," and found that the child's current setting was "not appropriate" (IHO Decision, p. 5).  The impartial hearing officer ordered that petitioner's son "be placed [at RGS] as the IAES until such time as the CSE can convene and place the child in an appropriate setting" (id.).

Petitioner appeals the impartial hearing officer's decision. Petitioner asserts that she contacted the impartial hearing office "on or before November 6, 2006," and informed the case manager at respondent's hearings office that she was unable to attend the impartial hearing and requested an adjournment.  On appeal petitioner acknowledges that she received notice of the impartial hearing but she offers no explanation as to why she could not attend the impartial hearing.  She also asserts that neither she nor her husband were contacted "diligently" to participate in the impartial hearing via telephone; that the impartial hearing officer's decision lacks specificity pertaining to the duration of the IAES placement.  Petitioner also raises a number of other challenges to the impartial hearing officer's decision including, inter alia, alleged improper development of the hearing record and inappropriateness of the IAES.

The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1482)5 is to ensure that students with disabilities have available to them a free appropriate public education (FAPE)6 (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]).  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][d]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. §§ 300.22, 300.320).

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. § 300.114[a]; 8 NYCRR 200.6[a][1]; see also Lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 81 [2d Cir. 2005]; Walczak, 142 F.3d at 122).  Because respondent requested the impartial hearing, the burden of persuasion falls on it to show that the relief it sought at the impartial hearing should be granted (see Schaffer, 126 S. Ct. at 535; see also Appeal § 300.532, 71 Fed. Reg. 46, 540 at 46723 [Aug. 14, 2006]).

Upon proper application by a local educational agency for an impartial hearing, an impartial hearing officer may order a change in placement of a child with a disability to an "appropriate" IAES for not more than 45 school days if the impartial hearing officer determines that maintaining the current placement  "is substantially likely to result in injury to the child or to others"  (20 U.S.C. § 1415[k][3][B][[i] and [ii][II]; 34 C.F.R. § 300.532[b] [2][ii]).

I first turn to the impartial hearing officer's determination to conduct the impartial hearing in the absence of petitioner.  A party to an impartial hearing conducted to obtain an order to change the placement of the child with a disability to an appropriate IAES for not more than 45 school days (20 U.S.C. § 1415[k][[3][A] and [B][ii][II]; 34 C.F.R. § 300.532[a] and [b][2][ii]) is entitled to certain hearing rights including, among others, the right to be present and present evidence and confront, cross examine and compel the attendance of witnesses (34 C.F.R. § 300.512[a][1] and [2]).  A parent is also entitled to a hearing that is scheduled at a time or place that is reasonably convenient (8 NYCRR 200.5[j][3][x]).  However, due process does not require that petitioner be present at the hearing, rather it requires that she receive notice reasonably calculated under all of the circumstances to apprise her that the hearing would be held and have an opportunity to present her objections (Mullane v. Central Hanover Trust Co., 339 U.S. 306 [1950]; Does v. Mills, , 2005 WL 900620, at *10 [S.D.N.Y. Apr. 18, 2005]]; Marcus v. Ambach, 136 A.D.2d 778 [3rd Dept. 1988]; Application of a Child with a Disability, Appeal No. 01-099).  In this case, petitioner admits that she was aware of the date of the impartial hearing (Pet. p. 1).  In addition, neither federal nor state statutory or regulatory provisions provide for an automatic adjournment of an impartial hearing pursuant to a request of a party.  This is particularly true when  good cause is not asserted as a basis for the request (compare Application of a Child with a Disability, Appeal No. 04-018 [adjournment should have been granted in response to a request for short adjournment to obtain counsel] with Application of a Child with a Disability, Appeal No. 98-033 [petitioner's complaint that the impartial hearing officer should have granted an adjournment was without merit where there was no evidence to substantiate her claim that she was not available at the time scheduled for the hearing]).  Moreover, a request for an extension of time in which an impartial hearing may be completed may be granted in limited circumstances after review by the impartial hearing officer (see 8 NYCRR 200.5[j][5](ii), 8 NYCRR 201.11[b]), and a request for an extension due to scheduling conflicts may be granted only upon a showing of a compelling reason or substantial hardship (8 NYCRR 200.[j][5][iii], 8 NYCRR 201.11[b]).  Here there is no evidence that petitioner submitted an adjournment request to the impartial hearing officer in a timely manner, there is no indication that petitioner indicated the length of adjournment that was sought, and there is no record of good cause, a compelling reason or substantial hardship put forth by petitioner that would be a sufficient basis for granting a request for an extension.  Moreover, the matter herein involves an expedited impartial hearing that involved safety concerns not only for the student that is the subject of the proceedings but also for other students and staff.  Under these circumstances, I find that the impartial hearing officer did not violate the due process rights of petitioner's son and that the impartial hearing officer acted within her discretion when she conducted the impartial hearing on the scheduled date, in the absence of petitioner.

I have reviewed the appropriateness of the IAES placement ordered for petitioner's son by the impartial hearing officer.  Upon a careful review of the record, I agree with respondent and find that the evidence supports the conclusion that maintaining the child's placement at the Children's School was substantially likely to result in injury to himself or others and that the IAES placement proposed by respondent for petitioner's son was appropriate for the child and consistent with LRE requirements.

With respect to the proposed placement of the child at RGS, the principal of that school described it as a special education school which provides services to children with emotional disabilities and autistic tendencies (Tr. p. 55).  The school has nine classes with a 12 to one student to teacher ratio and nine classes with a six to one ratio (Tr. p. 57).  The principal testified that petitioner's son would be placed in a self-contained class with a special education teacher and a student to teacher ratio of no more than 12 to one (Tr. pp. 55, 57).  The class would also have a "teacher assistant, a paraprofessional," and its curriculum would be the same as in the Children's School (Tr. pp. 56, 57).  I note here that the impartial hearing testimony indicates that during situations when the child was instructed in smaller groups at Children's School his behavior improved "slightly," and "somewhat" (Tr. pp. 29, 40).

Students at RGS are grouped by academic ability and the entire day is highly structured (Tr. pp. 60-61).  The principal testified that classes at RGS are more structured than at the Children's School (Tr. p. 56).  Most of the students at RGS have "the same type of history" as petitioner's son, and the school has a behavior program incorporated into the school day which would allow petitioner's son to earn points he could redeem for rewards, with the ultimate goal of teaching the child to take responsibility for his actions (Tr. pp. 55-56, 61).  RGS staff includes a full-time psychologist, a guidance counselor, a social worker, three speech-language therapists, and full-time physical and occupational therapists (Tr. p. 58).  The principal testified that petitioner's son would be able to "immediately" begin to receive his related services of speech-language therapy, occupational therapy, and counseling at RGS (Tr. pp. 58, 59).  RGS has the benefits of two gymnasiums, an art studio, and also a dance studio (Tr. p. 57).  Its students have gym, science, social studies, dance, and music classes twice a week (Tr. p. 58).

I am concerned that the impartial hearing officer's order did not indicate that the placement in the IAES was for a period time of not more than 45 school days (34 C.F.R. § 300.532.[b][ii]), and I will modify her order accordingly.  I have reviewed the balance of petitioner's arguments on appeal and find them without merit.

            THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

            IT IS ORDERED that the impartial hearing officer's order is modified by adding the following language to the end of her order: "The child shall not remain in the IAES ordered herein for more than 45 school days in the absence of petitioner complying with appropriate procedures to continue the IAES placement (see 34 C.F.R. § 300.532 [b][3])."

 

Dated:

Albany, New York

 

__________________________

 

February 9, 2007

 

PAUL F. KELLY
            STATE REVIEW OFFICER

 

1  On November 8, 2006, two days after the impartial hearing, the CSE convened and changed the child's classification to a student with an emotional disturbance and recommended that he be placed in a 12:1+1 special class (Answer ¶ 41).

2  The Code of Federal Regulations (34 C.F.R. Parts 300 and 301) has been amended to implement changes made to the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004.  The amended regulations became effective October 13, 2006.  In this case, none of the new provisions contained in the amended regulations are applicable because all relevant events occurred prior to the effective date of the new regulations.  However, for convenience, and unless otherwise specified, citations herein refer to the regulations as amended because the regulations have been reorganized and renumbered.

3 An expedited due process hearing must occur within 20 school days of the date the complaint requesting the hearing is filed and the impartial hearing officer must make a determination within 10 school days after the impartial hearing (34 C.F.R. § 300. 532[c])

4 I note that respondent's exhibits contained some material apparently specific to the child's twin brother (Dist. Ex. B at p. 1; see e.g. Dist. Ex. E at p. 2, Dist. Ex. K at pp. 7, 8, 9, 10).  I have not considered any such portion of the record in my review of, and determination regarding, petitioner's appeal.

5 Congress 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 the relevant events at issue in this appeal occurred after the effective date of the 2004 amendments, the new provisions of the IDEA apply and citations contained in this decision are to IDEA 2004, unless otherwise specified.

6 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[9].