97-064

        Petitioners appeal for the decision of an impartial hearing officer which sustained some, but not all, of petitioners' objections to the manner in which respondent disciplined their son for incidents which occurred during the 1996-97 school year. They contend that the hearing officer should have ordered references to their son's suspensions from school to be expunged from his records, and that the hearing officer should have ruled upon their contention that the boy was allegedly punished twice for the same offenses. Petitioners also appeal from the hearing officer's alleged failure to rule upon the issue of whether the chairperson of the committee on special education (CSE) may individually determine that a child should be evaluated. Their appeal must be dismissed.

        Respondent, the board of education, cross-appeals from the hearing officer's finding that respondent was negligent in not referring petitioners' son to its CSE for a nexus determination, i.e. whether the boy's misbehavior was related to his disability. It also cross-appeals from the hearing officer's determination that respondent was negligent in not following its own discipline procedure, and from the hearing officer's order that the CSE make a nexus determination with regard to each disciplinary report entered in the record of this proceeding. The cross-appeal must be sustained in part.

        At the outset, I will address petitioners' argument that respondent's cross-appeal should be dismissed as not authorized by law, and as untimely. On January 1, 1998, the Regulations of the Commissioner of Education were amended to prescribe the procedure for cross-appealing from an impartial hearing officer's decision. However, it does not follow that cross-appeals were not permitted prior to the recent amendment of the Regulations (Application of a Child with a Handicapping Condition, Appeal No. 91-25; Application of the Board of Education of the Ellenville Central School District, Appeal No. 94-43). A cross-appeal which is set forth in a respondent's answer to a petition is timely, if the answer is served within the time permitted for service of the answer. In this instance, the last day for service of the answer was September 22, 1997. The answer was served by mail on that date, although petitioners did not receive it until two days later. Service was effective upon mailing (8 NYCRR 275.13). Therefore, I have accepted the answer, and I will consider respondent's cross-appeal.

        Petitioners and their son live in the Wynantskill Union Free School District, which contracted with respondent for the boy's education in the eighth grade during the 1995-96 school year because Wynantskill reportedly did not have an appropriate program for him. Wynantskill contracts with other school districts for the instruction of all its students in grades nine through twelve. During the 1996-97 school year, petitioners' son was enrolled in the ninth grade of respondent's high school, at Wynantskill's expense.

        Prior to moving into the Wynantskill Union Free School District, petitioners resided in the Stillwater Central School District. Their son was initially referred to the Stillwater CSE in 1992 because of low academic achievement, poor peer relations and difficulty remaining on task (Exhibit 4). He was reportedly diagnosed by a physician as having an Attention Deficit Disorder (ADD), for which he was thereafter treated with medication. He also reportedly had gross and fine motor deficits. The Stillwater CSE recommended that petitioners' son be classified as multiply disabled, and that he receive resource room services, as well as physical therapy and occupational therapy. It also recommended that a transportation aide be assigned to the boy.

        The school psychologist who conducted the boy's triennial evaluation in January, 1995, reported that the boy had achieved verbal and performance IQ scores of 113 and 108, respectively. On achievement tests, the boy earned grade equivalent scores of 8.6 for broad reading, 5.4 for broad mathematics, and 3.4 for written language. The boy was in the seventh grade when he was evaluated.

        Petitioners and their son reportedly moved to Wynantskill around the beginning of the 1995-96 school year. The Wynantskill CSE prepared an individualized education program (IEP) for the boy which continued his classification as multiply disabled. The IEP provided that the boy was to receive resource room services for two periods per day, five days per week, while enrolled in regular education eighth grade classes. The IEP's description of the boy's management needs indicated that his disability impacted upon his behavior in unstructured situations, such as while riding a school bus. It further indicated that monitoring and a "behavior change program" might be required for those situations, and it referred to an attachment for additional information. That attachment is not in the record. The IEP also indicated that alternative transportation would be provided if the boy was suspended (presumably, if his transportation privileges were suspended).

        As noted above, Wynantskill contracted with respondent for the boy's education during the 1995-96 school year. He was enrolled in respondent's middle school. The boy's resource room teacher for the 1995-96 school year reported to the Wynantskill CSE in March, 1996, that petitioners' son had successfully transitioned to respondent's eighth grade and that his self-motivation and commitment to his academic responsibilities continued to grow. The resource room teacher did not report that the child had any significant academic or management needs. On May 21, 1996, an assistant principal of respondent's middle school informed petitioners that their son would not be permitted to go on the eighth grade spring trip to Boston because his conduct and attitude allegedly presented a risk to his fellow classmates as a result of his inability or refusal to follow directions (Exhibit I). At the hearing in this proceeding, the assistant principal testified the boy had previously been cautioned he would not be allowed to go on the trip if he misbehaved in school, and that he had misbehaved during a two-day all school project. Nevertheless, the assistant principal rescinded his letter of May 21, after discussing the matter with respondent's CSE chairperson. Shortly thereafter, the boy was involved in two other incidents, one of which involved his allegedly cutting another student's hair. By letter dated May 30, 1990, the assistant principal again informed petitioners that their son could not go on the trip.

        By letter dated May 30, 1996 and addressed to respondent's CSE chairperson, petitioners requested that an impartial hearing be held because they believed that respondent was discriminating against their son because of his disability and that it had failed to accommodate his special education needs. The attorneys for both parties reportedly discussed petitioners' hearing request, but no hearing was held.

        The Wynantskill CSE prepared a new IEP for the 1996-97 school year (Exhibit 9). The CSE recommended that he remain classified as multiply disabled, and that he receive individual resource room services five times per week. The IEP indicated that the boy would receive regular bus transportation, and it made no provision for alternative transportation. It reported the results of January, 1996 achievement testing in which the boy had earned grade equivalent scores of 5.5 for total reading, and 5.0 for total math. The IEP did not describe the boy's social development, physical development, or management needs (cf. 8 NYCRR 200.4 [c][2][i]). The copy of the IEP which is in the record does not include any annual goals or objectives. When asked about that omission at the hearing, respondent's CSE chairperson testified that she understood that the Wynantskill CSE had intended to use the annual goals and short-term instructional objectives which had been developed for the boy by the Stillwater CSE for the preceding school year.

        In September, 1996, petitioners' son entered the ninth grade in respondent's high school. He was reportedly insubordinate on October 28, 1996, for which he received one day of detention. The boy was suspended from school on November 20 and 21, 1996, and had an in-school suspension the following day, for having reportedly been involved in a fight. In a progress report which she prepared in January, 1997, the boy's resource room teacher indicated that petitioners' son was having some academic trouble in his ninth grade English and science classes, and that he had reportedly distracted other students in his art class. However, the resource room teacher expressed her belief that the boy could improve his academic performance without additional special education assistance, and she did not recommend that the CSE reconvene to review the boy's IEP.

        In early March, 1997, petitioners' son was assigned to detention for reportedly having been unprepared for his physical education class. However, that penalty was rescinded by respondent's assistant principal. Later that month, he was counseled for having allegedly thrown a book at another student in one class, and allegedly having been disruptive in another class. Petitioners' son was suspended from school on April 18, 1997 for allegedly having engaged in a fight at the end of his physical education class. He was assigned to detention on June 3, 1997 because he had reportedly thrown a piece of paper in another student's face.

        On or about March 2, 1997, petitioners reportedly learned that their son would not be allowed to go on the ninth grade's annual trip to Six Flags because of his disciplinary record. The CSE chairperson testified that she intended to have the CSE address the issue of the boy's discipline during its annual review, which was initially scheduled to take place on March 26, 1997. However, the annual review was subsequently postponed. The CSE chairperson also testified that she had reviewed the boy's school records, and she had erroneously concluded that he needed to have a triennial evaluation performed.

        In a report dated May 5, 1997, respondent's school psychologist indicated that she had reviewed the boy's records, and she had asked the boy's teachers to respond to a questionnaire about his attention related behavior. The psychologist reported that her brief testing of the boy revealed that his cognitive skills were in the average range, and that his reading skills were within the expected range. The boy evidenced weak mathematics skills when solving written problems, and his English teacher reported that the boy's written language skills were below average. With one exception, the responses of the boy's teachers to the questionnaire indicated that his attention skills were within normal limits. The school psychologist reported she did not have enough information to ascertain the extent to which the boy's ADD affected his performance in class. She also reported that the child had told her during the evaluation that his parents had told him not to do the tests for the school psychologist. In any event, she recommended that the boy be independently evaluated. Respondent reportedly agreed to do so, but the results of the independent evaluation were not available when the hearing was held in this proceeding.

        In a letter to the CSE chairperson, which was dated March 28, 1997, the boy's father asserted that his son's due process rights had been violated because he had been disciplined without any determination by the CSE about whether his misconduct was a manifestation of his disability. The boy's father asked to have references to the disciplinary incidents expunged from his son's records. On April 10, 1997, the CSE chairperson asserted in a letter to petitioners that they had been previously notified of each of the boy's disciplinary referrals, and that the "…high school administration was certain that [the boy's] behavior was not related to his learning disability." She explained that the school administration had not referred the matter to the CSE (Exhibit D). By letter dated April 12, 1997, an attorney acting on behalf of petitioners asked the CSE chairperson to arrange an impartial hearing with regard to the matters raised in the father's letter dated March 28, 1997.

        The hearing in this proceeding was held on June 24 and July 9, 1997. At the hearing, petitioners, who appeared without an attorney, asserted that respondent had violated their due process rights with regard to the disciplining of their son. They also challenged the authority of the CSE chairperson to determine that their son should be re-evaluated. The hearing officer rendered his decision on August 11, 1997. With regard to the second issue raised by petitioners, i.e., the authority of the CSE chairperson to have the child re-evaluated, the hearing officer noted that the boy was being independently evaluated by agreement of the parties. He therefore did not address the issue. On the question of the discipline which had been imposed on the boy, the hearing officer noted that respondent's policy for imposing discipline upon a child with a disability provided that when a violation of the district discipline occurred, a meeting of the building administrators and the special education teacher and other staff involved would be held to determine:

"Whether the student's behavior is related to the handicapping condition.

1. whether the behavior was the result of an inability to understand the rules.
2. Whether the behavior was the result of an inability to control inappropriate behavior." (Exhibit 11).

        The hearing officer found that respondent's staff had not followed respondent's policy in each instance in which discipline had been imposed upon petitioners' son. He also found that the boy had long standing behavioral difficulties which were manifested in his evaluation and his discipline reports, and he concluded that respondent had been negligent in not referring the boy to the CSE to determine if his "behavior and disability were related." The hearing officer additionally found that respondent had failed to provide the boy with a tutor during his one-day suspension from school. The hearing officer ordered respondent's CSE to meet within ten days to conduct a "manifestation determination" with respect to each disciplinary incident which had been referred to at the hearing. He also ordered that the boy's IEP be amended to include the related service of counseling. The hearing officer also ordered respondent to provide written notice to each parent of a child suspended from school for fewer than five days of their right to an informal conference with the child's school principal, pursuant to Section 3214 (3) (d) of the Education Law.

        Petitioners argue that the hearing officer should have ordered that the references to their son's suspension from school be expunged from the boy's school records because respondent failed to provide them with written notice of their son's suspension within 24 hours of each suspension, in violation of 8 NYCRR 100.2 (1) (4). (It should be noted that petitioners have referred to 8 NYCRR 110.2 [4] in their petition. That section does not exist). In essence, they contend that they were not afforded the opportunity to meet with the principal to discuss the disciplinary incident, which is a right which is accorded to them by Section 3214 (3) (d) of the Education law. Petitioners also assert that respondent failed to annually review its discipline process (cf. 8 NYCRR 100.2 [1] [2]), and they argue that the suspensions must be expunged because respondent's staff did not follow respondent's own policy.

        Federal and State laws accord the parents of a child with a disability the right to an impartial hearing, and subsequent state-level review with regard to a school district's proposal to change, or its refusal to change, the child's identification, evaluation, or educational placement (34 CFR 300.504 [a]; 34 CFR 300.506). Under certain circumstances, a child's suspension from school may constitute a change of his or her educational placement, thereby requiring the school district to comply with the procedural due process provisions of the Individuals with Disabilities Education Act (20 USC 1400 etseq.), and its State counterpart, Article 89 of the Education Law. This occurs when a child with a disability has been suspended from school for more than 10 days (Honig v. Doe and Smith, 484 U.S. 305 [1988]). In this instance, the boy was not suspended from school for more than 10 days, either at one time, or collectively, during the 1996-97 school year. Under the circumstances, respondent was not legally obligated to make a nexus determination, i.e., to determine whether the boy's misconduct was a manifestation of his disability (Application of a Student with a Disability, 34 Ed. Dept. Rep. 634; Appeal of a Child with a Handicapping Condition, 28 id. 342). Petitioners' other arguments about the alleged violation of Section 3214 (3) (d), 8 NYCRR 100.2 (1) (2) and 100.2 (1) (4), even if true, do not afford a basis for either the hearing officer or a State Review Officer to grant the relief which they seek in this proceeding under IDEA. Similarly, their argument that the boy was punished twice for the same offense (which apparently has to do with the loss of his privilege to go on the eighth and ninth grade class trips) does not raise a claim under IDEA. That argument would be more appropriately addressed in an appeal to the Commissioner of Education pursuant to Section 310 of the Education Law. With respect to their request for an order expunging their son's records, petitioners' remedy is to follow the procedure prescribed by 34 CFR 300.570 for challenging the accuracy of their son's records. Hearings for that purpose are conducted pursuant to the Family Educational Rights and Privacy Act. The hearing officers' decisions in FERPA cases are not reviewed by the State Review Officer (Application of a Child with a Disability, Appeal No. 96-50).

        Petitioners' challenge to the CSE chairperson's determination to re-evaluate the boy does come within the rubric of a proposed change in the child's evaluation. However, I agree with the hearing officer's implicit determination that the matter was moot in view of the parties' agreement to have the child independently evaluated. The State Review Officer is not required to determine issues which are no longer in controversy, or to make a determination which will have no impact upon the parties (Application of a Child with a Disability, Appeal No. 97-22).

        In its cross-appeal, the board of education argues that the hearing officer's order directing the Averill Park CSE to make a manifestation determination with respect to each of the disciplinary incidents in the record of this proceeding must be annulled because it is contrary to law. The board of education asserts that it had no legal obligation to refer the child to its CSE for such a determination because he was not suspended from school for more than 10 days. I agree with the board of education (Honig v. Doe and Smith, supra). Therefore, I will annul the hearing officer's order.

        The board of education requests that I also annul the hearing officer's findings that the Averill Park Central School District was negligent in failing to refer the boy to its CSE to make a manifestation determination, and in failing to follow its own procedure when it imposed discipline upon the boy. In essence, the hearing officer appeared to take a more serious view of the disciplinary incidents involving petitioners' son than did the assistant principal who was responsible for maintaining discipline. Although I do not necessarily concur with the hearing officer's finding that the boy had "shown a steady decline in his behavior over the past school year," I am not persuaded that the hearing officer erred in finding that respondent had not met all of its obligations under the IDEA.

        Each child with a disability is entitled to receive a free appropriate public education which is provided in conformity with an IEP which meets the requirements of Federal regulations (34 CFR 300.8). The boy's IEP for the 1996-97 school year which Averill Park received from Wynantskill (Exhibit 9) did not adequately describe the boy's levels of development or his needs, and it did not include any annual goal or short-term instructional objective. Absent the information which a complete IEP would have provided to it, respondent was simply not in a position to provide the boy with a free appropriate public education which was consistent with his special education needs, because it had no way to ascertain those needs. Although I credit the assistant principal's testimony that he did consult with the child's special education teacher about the boy before imposing discipline in the Fall of 1996, it is nevertheless apparent that someone should have referred the boy to the CSE to ensure that he had a complete IEP. Therefore, I will sustain respondent's cross-appeal only to the extent of annulling the hearing officer's order that the CSE make manifestation determinations about each disciplinary incident.

        It is imperative that the independent evaluation of petitioners' son be completed, if it has not been done, and that the parties cooperate in preparing and implementing an appropriate IEP for the boy (Tucker v. Bay Shore Union Free School District, 873 F. 2d 563 [2d Cir., 1989]).

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's directive to respondent's CSE to make manifestation determinations with regard to the disciplinary incidents in this record is hereby annulled.