98-020

       Petitioner, the Board of Education of the Akron Central School District, appeals from the decision of an impartial hearing officer which found that a recommendation by petitioner's committee on special education (CSE) for an interim alternative education setting for respondents' son in connection with a then pending disciplinary proceeding against the boy was academically and behaviorally inappropriate for him. The hearing officer further found that the CSE should have included one of the boy's regular education teachers, and that petitioner's due process notice to the respondents failed to include all of the required information. The appeal must be sustained in part.

        Respondents' son, who is seventeen years old, has been classified as learning disabled for approximately ten years. He is of average intelligence, but his written language skills are below grade level and he has mild deficits in general knowledge (Exhibit D-23). His writing deficit notwithstanding, he passed Regents level 11^th grade English in 1997. The boy's classification as learning disabled is not in dispute.

        Prior to the 1997-98 school year, respondents' son received resource room services five times per week to address his special education needs. During the 1997-98 school year, the boy was in the twelfth grade at the Akron Middle-Senior High School, where he was enrolled in regular education English, economics and physical education classes. He also received machine tool training in a vocational program referred to in the record as the Harkness Center. If successful in each of his courses, the boy is expected to graduate from high school with a local diploma this month.

        On October 3, 1997, the CSE prepared the boy's individualized education program (IEP) for the 1997-98 school year, which provided that he would receive 40 minutes of transitional support services (see 8 NYCRR 200.1 [pp]) three times per week. The CSE chairperson testified that the boy was receiving those services because he was in the process of being declassified. The IEP also provided that the boy should be seated near the front of his classrooms, and that he should have extended time in which to complete tests because of difficulty concentrating and flexible schedules and settings for tests because of his distractibility. Although the IEP refers to a resource room teacher in describing the needed human resources for the boy's program, it does not otherwise indicate that he would receive resource room services. However, he apparently received his transitional support services in a resource room three times per week during the first quarterly marking period of the 1997-98 school year. In mid-December, 1997, the boy received two additional periods of resource room services, after he lost his early dismissal privileges because he was failing English. The boy's IEP had a single annual goal of maintaining passing grades in his academic classes. The appropriateness of the October 3, 1997 IEP is not at issue in this proceeding.

        On January 14, 1998, respondents' son was observed by petitioner's assistant principal to briefly speak to another student in the cafeteria, after which both students went into the boys' restroom. When the assistant principal entered the restroom, he noted that respondents' son had his wallet out, and that a good amount of cash was visible. The assistant principal questioned each youth separately. Although both boys initially indicated that respondents' son had intended to buy the other boy's necklace, respondents' son reportedly admitted to the principal and the assistant principal that he had intended to purchase one-eighth of an ounce of marijuana from the other boy for the sum of $35.00. Later that day, the assistant principal searched the truck of respondents' son, where two drug related devices, known as a "double bong" and "Hitter", were reportedly found.

        Respondents' son was suspended from school by the principal, who charged him with having violated petitioner's policy by participating in a marijuana buying/selling deal and having drug paraphernalia in his truck on school grounds. On January 22, 1998, a hearing was conducted by petitioner's superintendent of schools in accordance with the provisions of Section 3214 (3)(c) of the Education Law. The superintendent of schools reportedly found that the boy was guilty of the charges against him, but he did not immediately issue a written decision. However, the boy's mother was aware of the superintendent's decision with respect to her son's guilt, as revealed in the tape recording of the CSE meeting. In a letter dated January 28, 1998, which was the tenth day of the boy's suspension from school, the superintendent advised respondents that he would wait for the CSE to make its "nexus" determination before he decided upon the boy's punishment. He also advised them that their son should return to his occupational class at the Harkness Center, and that home tutoring would begin that week (Exhibit P-15). At the hearing in this proceeding, the boy's mother testified that her son had resumed attendance at the Harkness Center on January 29, 1998 (February 13, 1998 Transcript, page 153).

        The boy's mother met with the CSE on January 29, 1998, after having waived her right to five-days prior notice of the meeting (Exhibit D-9). The purposes of the meeting were to determine whether there was a nexus between the boy's alleged misconduct which was the subject of the disciplinary proceeding and the boy's disability, and to determine whether he should be placed in an alternative interim educational setting. A child with a disability cannot be excluded from school for misconduct which is related to his disability (S-1 et al. v. Turlington et al., 635 F. 2d 342 [5^thCir., 1981]; Honig v. Doe, 484 U.S. 305 [1985]). Consequently when a student with a disability is charged with misconduct, the CSE must first determine whether the alleged misconduct was a manifestation of the child's disability (20 USC 1415 [k][4]). If the CSE determines that the behavior was not a manifestation of the child's disability, the child may be disciplined in the same manner as children without disabilities, provided that the child with a disability must continue to receive a free appropriate public education (20 USC 1415 [k][5]). The CSE's determination may be reviewed by a due process proceeding (20 USC 1415 [k][6]). Petitioner's CSE determined that the boy's alleged participation in a marijuana transaction was not related to his disability. Respondents have not challenged that determination in this proceeding.

        In 1997, the Individuals with Disabilities Education Act (IDEA) was amended to provide that school authorities may order a change in the placement of a child with a disability -

" … to an appropriate interim alternative educational setting for the same amount of time that a child without a disability would be subject to discipline, but for not more than 45 days if -

(II) the child knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function under the jurisdiction of a State or local educational agency" (20 USC 1415 [k][1][A]).

        Petitioner's CSE amended the boy's IEP (Exhibit D-11) to reflect its determination that the appropriate interim alternative educational setting would be for the boy to receive home instruction for 120 minutes five times per week from February 2, 1998 until March 18, 1998. For the remainder of the 1997-98 school year, the CSE recommended that the boy continue to receive 40 minutes of transitional support services three times per week, and that he receive 30 minutes of individual counseling once per week. It added an annual goal and two short-term objectives with respect to identifying his behavior while receiving counseling to his IEP. The CSE chairperson testified that he had asked one of the boy's resource room teachers, who was also petitioner's transition coordinator, to meet with the boy to determine if additional interventions would be necessary once the boy returned to school.

        One of the resource room teachers testified that she had sent the boy his assignments in economics while he was suspended. On January 30, 1998, the boy took his final examination in economics. Although he received a failing grade on that examination, the boy passed the course. The boy also missed his mid-term examination in machine tools at the Harkness Center, but he subsequently took the exam and passed the course. A home tutor began providing the boy with his English homework assignments on February 4, 1998. The boy's English teacher testified that the boy had received the grade of 60 for the work which he had done in the second quarter up to the day of his suspension, and that he had subsequently begun to make up missing assignments. As of the second day of the hearing on the February 13, 1998, the teacher reported that respondents' son was passing his English course. As of that same day, the boy had not received any resource room services since his suspension from school.

        On February 5, 1998, the superintendent determined that respondents' son had participated in the marijuana transaction on school grounds as charged, but he deferred making a finding regarding the alleged drug paraphernalia in the boy's truck, which was apparently being investigated by the police (Exhibit D-5). The superintendent of schools ordered the boy to be suspended from school until February 17, 1998, with the proviso that the boy could continue to attend school at the Harkness Center for his vocational training. He also indicated that the boy could attend any further placement which the CSE found to be appropriate for him. The superintendent's decision in the disciplinary proceeding is outside of the scope of this proceeding (Application of a Child with a Disability, Appeal No. 97-64), and is not reviewed in this appeal.

        By letter dated January 30, 1998, respondents' attorney initiated this proceeding by requesting that an impartial hearing be held to consider respondents' assertions that petitioner had failed to provide her with an appropriate notice of all procedural safeguards, and had initiated disciplinary action against her son without developing an assessment plan to address his behavior within the time required by IDEA. Respondent further asserted that petitioner had unlawfully initiated disciplinary action when conducting a nexus determination without first considering all relevant information and without making all appropriate determinations, and that petitioner had unlawfully changed the boy's educational placement and placed him in an interim alternative educational setting for a period in excess of 10 school days. She also asserted that petitioner had failed to permit her son to participate in the general curriculum and to receive the educational services and modifications described in his IEP.

        The hearing in this proceeding began on February 9, 1998, and ended on February 13, 1998. In her decision which was rendered on March 10, 1998, the hearing officer found that petitioner had failed to provide timely notice of all procedural safeguards to the boy's parents, as required by 20 USC 1415 (k)(4)(A)(i) because they did not receive such notice until January 27, 1998. However, she found that the CSE had conducted its nexus meeting within 10 days after the boy's suspension and that respondent had waived her right to receive at least five days' notice of the meeting. The hearing officer also found that the CSE had failed to properly develop an assessment plan to address the behavior which had been the subject of the discipline proceeding, as required by 20 USC 1415 (k)(1)(B)(i) and (3)(B)(ii). She noted that the latter statute requires that services to address the boy's behavior begin in the interim alternative setting, rather than upon his return to regular classes. The hearing officer rejected respondents' contention that petitioner had violated 34 CFR 104.35 (a) by not evaluating the boy prior to placing him in the interim alternative educational setting. She further found that the school district's notice to the parents of its intention to place the boy on home instruction did not include all of the information required by Federal statute.

        The hearing officer denied respondents' claim that petitioner had violated the boy's "stay put", or pendency, rights by keeping him out of regular school for more than 10 school days. Respondents' claim was premised in part upon the assertion that the statutory exception to the "stay put" requirement did not apply because the boy was allegedly not charged with soliciting the sale of drugs. She found that his conduct did indeed involve the solicitation of the sale of marijuana, and that it was appropriate for the CSE to place the boy in an interim alternative educational setting. However, she found that one of the boy's regular education teachers should have been a member of the CSE which met on January 29, 1998.

        The hearing officer found that the CSE should not have changed the boy's IEP to reflect that he would receive home instruction during his suspension from school because nothing had occurred since the previous IEP meeting in October, 1997 which would warrant the use of home instruction to provide a free appropriate public education (FAPE) to the boy. She suggested that the CSE should have determined how the boy's existing IEP could be implemented during the suspension, by providing an interim setting and by addressing his misbehavior with a specific plan to prevent its recurrence. Although not ruling out home instruction per se, the hearing officer found that in this instance home instruction was academically inappropriate because the CSE had failed to provide for the use of testing modifications and resource room "support like" services, both of which had appeared on his October, 1997 IEP. She further found that it was behaviorally inappropriate because it did not address his misbehavior.

        The hearing officer ordered petitioner to amend the boy's IEP to increase his resource room services to five times per week, until his resource room teachers determined that he could maintain his grades. She further ordered petitioner to pay for an independent educational evaluation by an individual with a background in substance abuse to ascertain whether the boy's academic problems were related to substance abuse, and to recommend appropriate interventions.

        The board of education appeals from seven of the hearing officer's findings and from the remedy which she ordered it to provide. In doing so, it has not challenged her finding that it had failed to provide the boy's parents with timely notice of all procedural safeguards pursuant to 20 USC 1415 (k)(4)(a)(i). Respondent argues that the hearing officer's finding on that point should be sufficient to require the dismissal of the appeal. I disagree. Petitioner is entitled to a review of the hearing officer's decision. However, I do not review that specific finding by the hearing officer, nor do I review her findings regarding a pre-change of placement evaluation and pendency, which are not challenged in this appeal.

        While not challenging the hearing officer's determination about the timeliness of its notice of due process rights, petitioner does challenge her finding that the notice which it gave the respondents did not comply with the requirements of 20 USC 1415 (b)(4) and (6) and (c)(3) and (5). The first two statutory provisions require, respectively, that the notice be in the native language of the parents, unless it clearly is not feasible to do so, and that it indicate that the parents will have an opportunity to present complaints with respect to the identification, evaluation or placement of the child. Respondents are English-speaking. The hearing officer found that the notice was written in English, but was "not fully understandable to any lay man and it contained extraneous information." I find that the hearing officer's reliance upon 20 USC 1415 (b)(4) was entirely misplaced, and I will annul that part of her decision. Although there were at least two versions of petitioner's due process notice in the record (Exhibits D-8 and D-31), I find that each described at least minimally the ways in which the parents could present complaints, e.g. meet with the CSE, have a hearing, and appeal to the State Review Officer. The latter notice also described the process of mediation (see 20 USC 1415 [e]). The due process notice which was attached to the CSE chairperson's January 27, 1998 letter to respondents (Exhibit D-9) informing them of the disciplinary action "taken at a recent Superintendent's hearing" described what could happen in "disciplinary actions involving a change of placement." That description, in my judgement, was written in understandable language. Therefore, I will sustain petitioner's appeal with respect to this finding by the hearing officer.

        When a school district proposes to initiate or change a child's placement, or refuses to do so, it must include in its due process notice to the parents a description of other options which were considered and the reasons why those options were rejected, and a description of any other relevant factors in the district's proposed action or refusal to act (20 USC 1415 [c][3] and [5]). As noted above, respondents received a letter from the CSE chairperson on January 27, 1998 formally advising them of the CSE meeting to be held on January 29, 1998 (Exhibit D-9). The letter referred to the disciplinary proceeding, and a due process notice annexed to the letter discussed disciplinary actions involving a change of placement. At that point, the CSE had not taken any action, and it was obviously not required to describe other options it had considered or the relevant factor which it had considered. That information should have been provided in its notice of recommendation after it had made its recommendation. Although the CSE's notice of recommendation is not in the record which is before me, the hearing officer did not base her decision upon that omission. I find that the hearing officer's finding of an alleged violation of 20 USC 1415 (c) (3) and (5) must also be annulled.

        Petitioner asserts that the hearing officer erred as a matter of law in finding that at least one of the boy's regular education teachers should have been a member of the CSE on January 29, 1998. It contends that the provisions of 20 USC 1414 (d)(1)(B)(ii) and (3)(c) and (4)(B), upon which the hearing officer premised her finding, will not take effect until July 1, 1998. I agree that 20 USC 1414 (d) takes effect on July 1, 1998. In addition, I note that on April 28, 1998, the United States Education Department's Office of Special Education Programs issued an advisory memorandum, in which it indicated that it intended to issue a regulation to require that a child's regular education teacher be a member of the CSE which develops an IEP on or after July 1, 1998 (27 IDELR 1186). Accordingly, I find that petitioner's appeal from the hearing officer's finding should be sustained.

        Petitioner also challenges the hearing officer's findings with respect to the manner in which it recommended that the boy's IEP be amended and that he be placed in an interim alternative education setting. The hearing officer found that the CSE had improperly changed the boy's IEP and had placed him on home instruction because of a " … lack of understanding regarding the concept of an 'interim alternative educational setting' and its role in the process". In essence, she found that IDEA did not require that the CSE amend the boy's IEP in order to assure that he continue to receive a FAPE, and that the CSE should have ascertained how the boy's existing IEP could be implemented during his suspension, and how his misbehavior could be addressed to prevent recurrence during and after his suspension. Petitioner contends that the hearing officer's decision is not supported by the record and is inconsistent with the requirement that a change in placement must be reflected on a child's IEP.

        At the CSE meeting on January 29, 1998 the building principal informed the members of the CSE of the disciplinary charges against the boy. He also told them that the boy had admitted his guilt with respect to the charge of buying or attempting to buy marijuana on January 4, 1998, and that the superintendent had found the boy to be guilty of that charge. The principal and the boy's mother agreed that the superintendent was waiting for the CSE meeting to take place before he imposed a disciplinary penalty upon the boy. The CSE chairperson testified that:

"In light of the fact that he was more than likely going to be suspended, at least that was our understanding, and that it could potentially be up to 45 days, the committee voted to – agreed to provide home instruction to [the boy] beginning on February 2^nd to last for a maximum of 45 days at a frequency of two hours a day for five days a week" (February 13, 1998 Transcript, page 59).

        As the hearing officer noted in her decision, 20 USC 1415 (k) neither requires nor prohibits a CSE from changing a child's IEP in connection with a disciplinary proceeding. In this instance, the CSE's amendment of the boy's IEP was intended to reflect the fact that he was probably going to be suspended from school by the superintendent of schools for up to 45 days. At the CSE meeting, the CSE chairperson indicated that he believed that the IEP had to be amended because a suspension for that period of time would constitute a change of placement. 20 USC 1415 (k) (1) (A) provides that "school authorities may order a change in the placement of a child with a disability… to an appropriate interim alternative educational setting." However, the IEP team (CSE) must determine what would be an appropriate interim alternative setting (20 USC 1415 [k] [3] [A]). An interim alternative educational setting must:

"(i) be selected so as to enable the child to continue to participate in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the child's current IEP, that will enable the child to meet the goals set out in that IEP; and

(ii) include services and modifications designed to address the behavior described in paragraph (1) or paragraph (2) so that it does not recur" (20 USC 1415 [k] [3] [B]).

        The CSE was arguably premature in amending the IEP to reflect an interim alternative educational setting for the boy before the superintendent had formally suspended the boy. However, I do not agree with respondents' contention that the CSE abdicated its responsibilities to the superintendent of schools. It was the superintendent's responsibility to determine whether the boy should be suspended from school. It was the CSE's responsibility to determine how the boy's IEP would be implemented so that he could continue to receive a free appropriate public education while suspended from school.

        Although there may have been alternatives to providing home instruction to the boy, even the hearing officer conceded that home instruction "could have been appropriate" (Decision, page 16). However, she found it was academically inappropriate because the CSE did not specify that the boy would continue to receive testing modifications and resource room services. As drafted, the boy's amended IEP supports the hearing officer's finding with regard to resource room (transitional support) services, which were to begin on March 19, 1998 (the presumed end of the boy's suspension). The IEP did not indicate that resource room services (transitional support) would be provided while the boy was suspended from school. The amended IEP (Exhibit D-11), which also covered the period from February 2, 1998 to March 19, 1998, did explicitly provide that testing modifications were to be used. I note that nothing in the record suggests that testing modifications were not used during that period. Consequently, I cannot sustain the hearing officer's finding with respect to testing modifications, but I do sustain her findings with regard to resource room (transitional support) services. Petitioner has not offered any explanation for its CSE's failure to recommend that the boy receive any special education service while in the interim alternative educational placement.

        If a school district has not conducted a functional behavioral assessment and implemented a behavioral intervention plan for a child before the child committed the act which led to a suspension from school, the district's CSE must meet to develop an assessment plan to address the child's behavior, or review and modify the child's existing behavioral intervention plan, either before or within 10 days after the suspension occurs. (20 USC 1415 [k] [1] [B]). Petitioner's CSE met on the 10^th day of the boy's initial suspension. The CSE briefly reviewed the boy's IEP, which did not include a behavioral intervention plan. The CSE chairperson asked one of the boy's three resource room teachers to promptly meet with the boy to review his transition plan to ascertain if other modifications of his plan were required. In addition, the CSE recommended that the boy receive counseling when he returned from his suspension. The hearing officer found that petitioner had not complied with 20 USC 1415 (k) (1) (B).

        Petitioner contends that the hearing officer's finding is not supported by the record. The statute does not define, or otherwise prescribe what must be in a behavioral assessment plan. Although I have considered the proposed 34 CFR 300.520 to implement the statutory requirement, I note that the proposed regulation does not indicate what must be done as part of a functional behavioral assessment. The hearing officer acknowledged in her decision that the law did not explicitly require that a functional behavioral assessment plan be in writing, or that it be listed in a child's IEP. Nevertheless, she noted that the CSE had added goals and objectives relating to this boy's behavior to his IEP and providing counseling, and she found that the CSE should have discussed and specified how it would monitor and shape the boy's future behavior to prevent recurrence of his misbehavior. Specifically, she suggested that the CSE should have reviewed his transition services, and examined the options of group and individual counseling. She also suggested that the CSE should have considered whether the boy needed assistance interacting with his peers, and suggested, among other things, that the CSE consider whether drugs are a bigger problem for classified students than for their non-classified peers.

        I have listened to the audiotape recording of the relatively brief CSE meeting on January 29, 1998, and I find that there was virtually no discussion of the boy's behavioral needs, in the context of what might be required to prevent a recurrence of the boy's misbehavior. Although the chairperson's directive to the resource room teacher to do a review of the boy's transition plan could be viewed as one component of a functional behavioral assessment plan, I am constrained to find that petitioner has not demonstrated what, if anything else, its CSE did to understand the dimensions of the boy's behavioral problem prior to prescribing a solution in the form of counseling when he returned to school. Consequently, I will dismiss petitioner's appeal from that portion of the hearing officer's decision.

        Petitioner also challenges the hearing officer's finding that it denied respondents' son a FAPE during his suspension from school. She premised her finding upon the fact that the boy had missed 9 days of vocational classes at the Harkness Center and 20 days of classes at the high school. She noted that a special education teacher had begun to tutor the boy for 10 hours per week in the first two weeks of February, 1998, and that the boy's resource room teachers had voluntarily agreed to increase his support services from 3 to 5 times per week until he could maintain his grades. Petitioner asserts that the boy was afforded more time with a special education teacher (his tutor) in the interim alternative educational setting than his IEP had specified in his regular education setting. Prior to his suspension, the boy was receiving two regular education academic courses plus physical education, as well as three periods per week of resource room (transitional support) service, in addition to his vocational instruction. I find that petitioner has not demonstrated how the program which it provided after the boy was suspended provided him with the same amount of instruction, or that the program was designed to enable him to meet the goals set out in his IEP (20 USC 1415 [k] [3] [B] [i]). However, I take note of the efforts made by the boy's teachers to get him back on track academically, and I concur with the hearing officer's directive to petitioner to increase the boy's resource room services until his teachers decide he can maintain his grade level.

        The last issue to be addressed is petitioner's challenge to the hearing officer's directive to petitioner to pay for an independent evaluation of the boy by someone with a background in substance abuse. Petitioner asserts that the hearing officer's order requiring it to pay for an independent educational evaluation by someone having a background in substance abuse is not supported by the record. The board of education argues that the hearing officer made an unwarranted assumption that the decline in the boy's educational performance in mid-December, 1997 was the result of substance abuse, and it contends that the boy's academic performance has improved since that time. It further argues that it would be difficult, if not impossible, for it to comply with the hearing officer's decision because "substance abuse" is not a certified area of expertise. Respondents note that two of the boy's teachers suspected that the boy's poor performance in school may have been related to substance abuse (see February 9, 1998 Transcript, pages 192-194; February 13, 1998 Transcript, pages 124-125). Although petitioner disputes the possible connection between the boy's decline in educational performance and substance abuse, it offers no other explanation for the decline in performance. I note that the boy's English teacher reported on the boy's report card for the first marking period that the boy's work was inconsistent. A hearing officer may order that a child be evaluated at school district expense (8 NYCRR 200.5 [c] [6]). Upon the record which is before me, I find that the record supports the hearing officer's decision.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's findings on the fourth, sixth, ninth and twelfth issues are hereby annulled.