Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Hewlett-Woodmere Union Free School District
Mayerson & Associates, attorneys for petitioners, Gary S. Mayerson, Esq., of counsel
Ehrlich, Frazer & Feldman, attorneys for respondent, Jacob S. Feldman, Esq., of counsel
Petitioners appeal from an impartial hearing officer's decision which found that it was inappropriate for their son to remain in the public school program in which he was initially placed for the 1999-2000 school year because his behavior had escalated to the point where he posed a danger to himself and others. The hearing officer further found that the March 2000 recommendation of respondent's Committee on Special Education (CSE) that the student be placed at the Nassau County Board of Cooperative Educational Services (BOCES) Rosemary Kennedy School (Rosemary Kennedy) was appropriate. The appeal must be sustained in part.
Petitioners' son was nearly 11 years old when the hearing began in June 2000. He is classified as autistic. The student's classification is not in dispute in this proceeding. For preschool in 1993, he attended the Little Village School (Little Village), a school for children with developmental disabilities (Exhibit R, Transcript p. 731). In 1994 he was reportedly diagnosed with a pervasive developmental disorder (Exhibit R). The student continued to attend Little Village through the 1997-98 school year (Transcript pp. 731, 740 and 743).
In the fall of 1998, the student began attending the Gateway program. Gateway is a "shared" program between the Hewlett-Woodmere and Lynbrook school districts, housed in one of Lynbrook's elementary schools (Exhibit T, Transcript p. 3017). It is a 12-month program designed for students who have a diagnosis on the autistic spectrum and require support in academic, communication and social development (Exhibit T, Transcript p. 1788). Students are selected to participate in the program based upon meeting certain criteria such as having achieved independent toileting skills, having a high functioning level relative to the autistic population, having the ability to function in large group situations without becoming overly stimulated, and having the ability to progress without requiring intensive 1:1 instruction (Transcript pp. 53, 55 and 295). The students in the Gateway program receive instruction in an 8:1+2 self-contained classroom, and are provided the opportunity for mainstreaming as they become able to participate in that setting (Transcript p. 50). The program is based on an applied behavioral analysis (ABA) philosophy which relies on the principles of behavior modification to teach new skills as well as to teach the students to engage in more socially appropriate behavior (Transcript pp. 35-37). Consultants trained in behavioral analysis participate in the program on an ongoing basis (Exhibit T). During the 1999-2000 school year, the program had two consultants, each of whom spent one full day in the classroom per week (Transcript p. 790).
In a November 1998 progress report, the classroom teacher at Gateway, who also was the student's teacher at Little Village during the 1997-98 school year (Transcript p. 740), indicated that the student had made progress in the areas of language and peer interactions (Exhibits 11 and M). She noted that with parental involvement and a token system, the student's behavior had improved. He was better able to demonstrate impulse control and decision making capabilities.
A behavior treatment plan was implemented in February 1999 to address the avoidance behavior that the student would exhibit at times when he was asked to comply with instructions (Exhibit 4). The student would scream or fall to the ground and refuse to get up (Exhibit 5). The plan was designed to use both short and long-term reinforcers to provide incentives to the student to behave appropriately.
In a March 1999 progress report, the classroom teacher indicated that the student had made academic and social progress (Exhibits 12 and L). She noted that the student's behavior had improved "tremendously" as he demonstrated the ability to make better choices and control certain impulses. However, she further noted that in late April, the student began exhibiting aggressive behavior which was becoming more intense and frequent (Transcript p. 787). As a result of the student's aggressive behavior, the teacher began maintaining a behavior log (Transcript pp. 757-59).
On May 10, 1999, one of the program's consultants indicated in a progress report that the student had received individualized discrete trial teaching (Exhibit 5). Discrete trial teaching is a style of instruction that breaks down material into easily understood units (Transcript p. 63). Each unit is taught through discrete trials (Transcript p. 63). A trial consists of an instruction to the student, a response by the student, and a consequence (Transcript p. 63). The consultant reported that the student had made steady academic progress and that his social skills and use of language had improved appreciably. However, the consultant also noted that the student had exhibited extreme behavioral variability and that individualized behavior management programs had been developed to address the behavior. He indicated that while the student had participated in the mainstream for lunch, gym and specials, such as art and music, his behavioral volatility had prevented him from engaging in academic mainstreaming activities. He indicated that the student would fly into rages during which he became noncompliant and would kick, grab or scratch the staff. The consultant noted that the behavior often began without obvious antecedents, and could terminate just as suddenly. He further noted that the behavioral outbursts did not occur in his presence.
The consultant reported that while the outbursts had decreased in frequency since the beginning of the year, they continued to be a problem. He also reported that the incentive systems for appropriate behavior had proven effective. The consultant recommended that the student remain in his current placement, while work continued on controlling the variability of the student's behavior. He suggested that academic mainstreaming be attempted with the student.
In June 1999, after reviewing information regarding the student's noncompliant and aggressive behavior provided to him by the classroom teacher, the consultant opined that the student's behavior could be related to a medication adjustment (Exhibit F). He expressed concern that the student had become too physically large and strong to handle safely in the classroom and suggested that if the behavior continued, a 1:1 male aide, at least on a temporary basis, should be considered to stabilize the situation. The consultant considered the suggestion of a time-out room, but noted that the school did not have appropriate space available. He further noted that while time-out strategies were reportedly effective at home, that setting involved fewer demands than were placed on the student at school. He believed that with a steady medication regime and tight behavior management the student could be successful in the program and possibly be mainstreamed.
A June 1999 report card showed that the student had made academic and social progress (Exhibit K). However, his teacher reported that behavioral issues impeded his participation in a mainstream setting.
Respondent's CSE met in June 1999 for the student's annual review (Transcript p. 1787). It recommended that the student continue to be placed in the 8:1+2 Gateway program for the 1999-2000 school year, and that his speech services be increased (Transcript p. 1794). Rather than attend Gateway during the summer of 1999, the student returned to a recreational camp that he had previously attended (Transcript p. 1790). The school district continued to provide speech/language services to the student during that summer (Transcript p. 1790).
In the fall of 1999, the student returned to the Gateway program. As noted above the student:staff ratio for the program was 8:1+2. Because full time aides were not in place when the school year began, the speech/language therapist spent the entire day in the classroom providing speech/language therapy in the morning and assisting the teacher in the afternoon (Transcript p. 3094). Substitutes, some of whom were reportedly certified teachers, were assigned to the program at the beginning of the school year as well. One of the full time aides began working on September 27, 1999 and the other began on September 30, 1999 (Exhibits HH and 16). The first incident of inappropriate behavior during the 1999-2000 school year occurred on September 27, 1999 (Exhibit 8, Transcript p. 1083). On October 12, 1999, a behavioral treatment plan was implemented to address the student's inappropriate self-talk and other perseverative behavior (Exhibit 6). The plan was signed by the student's mother, who included a notation that her son was doing well with the plan at home.
In a letter dated November 9, 1999 to the various administrators involved with the Gateway program, one of the consultants explained that the program had not developed as he had originally intended. He expressed concern that mainstreaming was no longer a realistic goal for most of the students because they were too far behind academically, socially and cognitively to function with their peers (Exhibit A). He suggested that only three of the students should continue with the mainstreaming model and the remaining students should be placed in a life skills class. He advised the administrators that he was not the appropriate person to assist with the development of a life skills program and suggested that another consultant be found for fall 2000.
A CSE meeting was held on November 16, 1999 at the parents' request because they had concerns regarding the adequacy of their son's individualized education program (IEP) (Exhibit E). Due to time constraints, the CSE was unable to discuss each of the concerns raised by the parents and another meeting was scheduled for the following week. The CSE reconvened on November 23, 1999 to continue the discussion of the appropriateness of the student's IEP. At the meeting, a behavioral treatment plan using positive reinforcement through a token economy was developed (Exhibit 7). The plan was designed to address the student's aggressive and destructive behavior. The CSE recommended a full time 1:1 aide and additional behavioral goals were added to the student's IEP. The parents requested extended day services, however, the CSE chairperson stated that the current IEP was providing the student a free appropriate public education (FAPE). The parents disagreed with the CSE's recommendation, and indicated that they would be requesting mediation. No regular education teacher participated in either of the November 1999 meetings. A note on the IEP indicated that the student took Prozac and Risperdol at home.
The student's November 1999 report card indicated that behavior issues continued to impede the student's participation in the mainstream setting, and in his special education classroom (Exhibit J). The school district received the parents' request for mediation on December 2, 1999 (Exhibit O). On December 21, 1999, the parties entered into a mediation agreement (Exhibit P).
The student was suspended for one day on January 5, 2000 for "grossly inappropriate behavior", including pinching, screaming, throwing objects and physically attacking his teacher and speech/language therapist (Exhibit QQ). In correspondence dated January 11, 2000 to the administrators of the Gateway program, the consultant reiterated his concerns about the program and advised them that he would be resigning at the end of June 2000 (Exhibit B). On January 26, 2000, the teacher of the Gateway class tendered her resignation effective February 28, 2000, citing the "dangerous situation created by parental failure to comply with behavior plans as agreed to at the beginning of, and through the duration of the program" as the reason for her action (Exhibit D).
On March 9 and 10, 2000, the student was suspended again for exhibiting behavior that posed a danger to his classmates, his teachers and himself (Exhibits 17 and QQ). By letter dated March 10, 2000, the parents were notified that the CSE would convene on March 21, 2000 to discuss and possibly revise their son's educational program (Exhibit Q-3).
In a speech/language evaluation dated March 12, 2000, the speech/language therapist noted that there were delays in the student's receptive, expressive and pragmatic functioning, but reported progress in those areas (Exhibit RR). However, she indicated that poor attending skills and distractibility affected the student's speech/language functioning and social skills. She further indicated that the student's aggressive behavior interfered with his speech sessions and group language lessons. The speech/language therapist recommended that the student continue to receive both individual and group speech/language therapy.
On March 16, 2000, the student was suspended for a portion of the day due to behavior that posed a danger to his classmates, his teachers and himself (Exhibits 18, 19 and QQ). On March 20, 2000, petitioners requested an impartial hearing, claiming that respondent's failure to sufficiently staff their son's program until November 1999 had caused a regression in his behavior and academic skills (Exhibit X). They also claimed that respondent did not hire a male management aide as they had requested at the November 1999 CSE meetings and that the aide that it did hire had functioned as an additional assistant teacher, not as a 1:1 aide to their son. They sought male behavior management aides for their son until his negative behavior was eliminated, a home program to eradicate their son's "patterned negative behavior", an intensive behavioral management program, a new reward system, and the opportunity to observe their son's class on an occasional basis and to assist in their son’s classroom on an occasional and limited basis.
The CSE met on March 21, 2000 for a special review (Exhibit 20). The minutes from that meeting, which were attached to the student's IEP, reflect that although the student had demonstrated some progress, his rate of progress had declined as his aggressive behavior escalated. The minutes further reflect the CSE’s determination that the student required a more intensive behavioral management system, including a more intensive staff:student ratio and a time-out room. The CSE recommended that for the remainder of the school year the student be placed in a full-day, 6:1+1 special class at Rosemary Kennedy with a 1:1 aide. It also recommended that he receive the related services of speech/language therapy and occupational therapy.
Petitioners amended their hearing request on March 23, 2000 to include recovery of attorneys' fees, costs associated with expert witnesses, and enforcement of their son's pendency placement (Exhibit Y). In a letter dated March 22, 2000 to petitioners, the CSE chairperson outlined the reasons that the CSE rejected their request to maintain their son in the Gateway program (Exhibit S). She explained that Gateway was not appropriate because their son's aggressive behavior posed a danger to himself and others, and the necessary behavior interventions to reduce his aggressive behavior could not be accomplished in the program as currently structured. She also indicated that his behavior was causing a significant disruption to his classmate's ability to benefit from their educational program, and that he was not making satisfactory progress in achieving his IEP goals.
The student was suspended on March 30 and 31, 2000 for aggressive behavior (Exhibit QQ). On March 31, 2000, the CSE chairperson submitted a request to the Nassau County BOCES seeking a placement for the student at Rosemary Kennedy (Exhibit CC).
In correspondence dated April 3, 2000 to the school district's superintendent, the student's father indicated that the purpose of his hearing request was to redress his complaint that his son was not being provided a FAPE (Exhibit AA). He explained that he was not complaining about his son's current placement or seeking a change in placement. By letter dated April 6, 2000, the assistant principal at Rosemary Kennedy advised the CSE chairperson that he had attempted to schedule an intake screening in April 2000, but that the student's mother indicated that she preferred to delay the process pending the results of the upcoming impartial hearing. On April 7, 2000, the student was suspended from school due to violent behavior exhibited in school the previous day (Exhibit QQ).
The record includes numerous pages of anecdotals and reports documenting the student's inappropriate behavior during the 1999-2000 school year (Exhibits 8, 21, 22, 23, I, BB, FF). It also describes how the student's classmates were affected by the student's behavior, in that they were at times removed from the classroom during the student's behavioral episodes. The record also includes several pages of records and graphs, including discrete trial training data, documenting the student's academic progress during the 1999-2000 school year (Exhibits 14, 15 and 15A).
The impartial hearing began on June 20, 2000, and continued on two additional days that month. By letter dated July 28, 2000, petitioners' attorney requested that the hearing officer recuse himself because the student's mother had allegedly supervised the hearing officer's wife in a public school in Brooklyn during the 1991-92 school year, and their "relationship apparently was not always good" (Exhibit HO-I). The hearing officer denied the request to recuse himself.
The hearing continued for three additional days throughout the summer. The student continued to attend Gateway for the 2000-01 school year. The record includes several reports of inappropriate behavior occurring during that year (Exhibit FF). There is documentation of three episodes in both September and October, five in November, one in December, two in January, five in March, two in April and seven in May. The hearing continued for eight more days through December 2000.
An educational evaluation of the student was conducted on December 21, 2000 by a behavior analyst selected by petitioners. The behavior analyst reported that the student had significant developmental delays involving language, cognitive and social skills, but demonstrated academic and other potential (Exhibit UU). He also reported that the student's inappropriate behavior, including screaming, kicking, hitting, pinching, pulling hair, biting, running out of class, and destroying classroom materials, had interfered with the student's opportunity to receive educational benefit and meaningfully participate in his special class as well as in the general education curriculum.
The behavior analyst opined that Gateway was an appropriate program for the student as designed, but that the school district failed to appropriately execute the student's IEP. He indicated that the school district failed to ensure adequate and consistent staffing throughout the 1999-2000 school year, that the student's behavior intervention plan was ineffective, and that neither a functional behavior assessment nor new behavior intervention plans were developed when it became clear current strategies were ineffective. He further indicated that the Gateway staff not only failed to address the student's inappropriate behavior, but exacerbated it to the point that it interfered with the student's ability to learn and prevented mainstreaming opportunities. He suggested that this failure had resulted in reinforcement of aggressive behavior, lost instructional time or improper management of learning opportunities, and lost opportunities for meaningful mainstreaming. He opined that the instructional time and academic progress that the student missed added up to months during which he was not receiving an appropriate education.
To address the student's needs related to the deficits in his educational history, the behavior analyst recommended a home based 1:1 ABA program of 15 or more remedial hours per week for a minimum of two 50-week years including weekends. He indicated that the home based program should include supervision of the special educators on an as needed basis of no less than monthly by a behavior analyst. He further indicated that family training and involvement in program goals and behavioral intervention plans was required so that generalization and maintenance could be fostered in the natural environment. The behavior analyst also recommended continuation and carry-over at home of the differential reinforcement of behaviors program that had reportedly proven successful during the 2000-01 school year, and assessment every four months to determine if further adjustments to the program were needed.
The hearing continued for four more days in January, concluding on January 24, 2001. The hearing officer rendered his decision on May 14, 2001. He found that although full time aides were not in place at the beginning of the 1999-2000 school year, other more experienced and qualified staff members were available for the student. He further found that there was no evidence to support petitioners' contention that the deterioration in their son's behavior was attributable to the fact that permanent aides were not in place at the beginning of the 1999-2000 school year. He noted that there were no incidents of inappropriate behavior during that time, and that the student began exhibiting negative behavior in the spring of 1999. The inappropriate behavior had escalated in intensity and length and had continued through the 1999-2000 school year, to the detriment of other students and staff. He noted that none of the other students in the class exhibited the same degree of behavioral difficulties. The hearing officer also found that many different behavioral treatment plans, including a token economy system, were developed by the program staff to address the student's aggressive behavior. He found that assessment information was maintained on a daily basis, and although a functional behavioral assessment was not conducted, the district had met the criteria for a functional behavior assessment by completing antecedent, behavior, consequence (ABC) sheets. He determined that it would be inappropriate for the student to remain in the program, because his behavior had become a threat to the safety of the staff, other students and himself.
The hearing officer also determined that the IEP developed at the March 2000 CSE meeting was appropriate to meet the student's needs, and that the program at Rosemary Kennedy was appropriate. He found that petitioners were aware of the purpose of the March 2000 meeting and of their son's problems at school. He also found that petitioners' allegation that their son's behavior had improved during the 2000-01 school year was not supported by the evidence. Finally, the hearing officer determined that the opinion of petitioners' expert was based upon misinformation given to him by petitioners, and that he should have been disqualified as an expert for lack of sufficient experience and credentials.
Petitioners appeal from the hearing officer's decision on numerous grounds. Initially, petitioners claim that the hearing officer should have recused himself because the student's mother allegedly supervised the hearing officer's wife during the 1991-92 school year when the student's mother was an administrator at a public school in Brooklyn in which the hearing officer's wife had once worked. They contend that the existence of the relationship suggests the appearance of impropriety. State regulations provide that an impartial hearing officer ". . . shall not have a personal or professional interest which would conflict with his or her objectivity in the hearing . . ." (8 NYCRR 200.1[x]; previously found at 8 NYCRR 200.1[s]).
The record includes a document from the Office of Employment Records Research at the New York City Board of Education indicating that the hearing officer's wife retired in July 1986 (Exhibit HO III). That document also indicates that there is no record of service for her in the subsequent school years through 1991-92, the year petitioners allege that the relationship existed. Petitioners claim that the document does not provide information as to whether the hearing officer's wife worked as a substitute during that year. They also point out that the document is not a sworn affidavit. I note that at the hearing, as well as in their petition, petitioners reserved the right to supplement the record on this issue, but have not done so. I am unable to find any information in the record to support the allegation that the hearing officer's wife worked for the New York City Board of Education during the 1991-92 school year. Therefore, I find that the alleged relationship does not provide a basis upon which the hearing officer should have recused himself.
Petitioners also claim that the hearing officer's decision was arbitrary and capricious. They assert that the hearing officer was not impartial or objective, that he improperly weighed the testimony and evidence, that he predetermined certain issues, that he applied a double standard favoring the school district in his evidentiary rulings and treatment of the witnesses, and that he was motivated by anger because of petitioners' recusal request. A hearing officer must be fair in dealing with the parties and should take care to avoid the appearance of bias or prejudice (Application of a Child with a Disability, Appeal No. 96-38). I have carefully considered the entire record, including the hearing officer's evidentiary rulings and interaction with the witnesses, I find that there is no basis to believe or to suspect that the hearing officer approached this matter with any unfairness or bias.
Petitioners assert that the school district failed to implement their son's IEP for the 1999-2000 school year. I must note that the IEP that was in effect at the beginning of the 1999-2000 school year is not part of the record in this matter. Petitioners also contend that their son was denied a FAPE because of numerous procedural violations, individually and collectively. The term FAPE is defined, in pertinent part, as special education and related services that are provided in conformity with the student's IEP (20 U.S.C. § 1401).
First, petitioners claim that the Gateway program was not sufficiently staffed until at least one month after the beginning of the 1999-2000 school year, when the two full time aides were in place. As noted above, the student:staff ratio for the Gateway program was 8:1+2. The record shows that by September 30, 1999 both aides were in place. The record further shows that the speech/language therapist worked full time during the month of September providing speech/language therapy in the morning and assisting the teacher in the afternoon. In addition, an aide from the high school was assigned to Gateway for at least one week in the fall of 1999 (Transcript pp. 1850, 3021). The classroom teacher testified that depending on availability, substitutes were assigned to the program on a rotating basis. She indicated that before the full time aides were in place, there were days when the student:staff ratio was met (Transcript p. 1096). Additionally, each consultant was present in the classroom one day per week. While there was a short period of time during which the program lacked permanent full time aides, I am not persuaded this constituted a denial of a FAPE. The record shows that the student continued to receive group instruction and speech/language therapy without any episodes of inappropriate behavior that interfered with his instruction.
Petitioners also claim that their son did not receive ABA instruction during the time the full time aides were not in place. As noted above, the IEP developed at the June 1999 CSE meeting for the 1999-2000 school year is not part of the record. Therefore, I am unable to determine whether and to what extent ABA was required. I note that the November 1999 IEP provides that the program is based on an ABA philosophy that is maintained throughout the day (Exhibit E). However, there is no provision in that IEP requiring that ABA instruction be provided on an individual basis. The record shows that the student received discrete trial training during the month of September (Exhibit 15A). Additionally, the classroom teacher testified that she was able to provide group instruction at the beginning of the year (Transcript p. 1094). Based upon the information before me, I find that the student did receive instruction consistent with an ABA philosophy during the month of September.
Petitioners also challenge the November 1999 CSE meetings and the resulting IEP. First, they claim that the school district failed to ensure the presence of a regular education teacher at the meetings, despite including language on their son's IEP that mainstreaming would be explored throughout the year. Federal regulation mandates that a CSE include at least one regular education teacher of a student if the student is, or may be, participating in the regular education environment (34 C.F.R. § 300.344). Appendix A to Part 300 provides that the regular education teacher need not be required to participate in all decisions made at the meeting or to be present throughout the entire meeting or attend every meeting. The regular education teacher member of the CSE must participate in those discussions and decisions about how to modify the general curriculum in the regular classroom to ensure the student's involvement and progress in the general curriculum and participation in the regular education environment (Appendix A to Part 300—Notice of Interpretation, Question 24).
The November 1999 CSE meeting was requested by the student's parents. The student's mother testified that she requested the meeting to discuss issues relating to her son's behavior, such as the need for a different behavioral intervention plan, the need for a functional behavior assessment and manifestation determination, the need for a 1:1 aide, and the need for an evaluation by an independent behavior consultant (Transcript pp. 4133, 4138 - 40). The CSE chairperson testified that there was no regular education teacher at the November meetings because the student was not mainstreamed at the time, and an increase in mainstreaming was not contemplated because the student's behavior was the paramount concern (Transcript p. 1867). I note that while the IEP does provide that mainstreaming would be explored throughout the year, the word "None" appears above that statement in the portion of the IEP describing the extent of the student's participation in regular education. Given the severity of the student's behavior, it is clear that mainstreaming was not a realistic possibility when the CSE convened in November 1999. I find that the regular education teacher's presence was not required at the November CSE meetings because the student was not participating in a mainstream setting and it would have been premature to enter into discussions and make decisions about how to modify the general curriculum in the regular education classroom when mainstreaming was not even contemplated at the time.
Second, petitioners assert that there was no objective means to evaluate the three social/emotional goals addressing impulse control and appropriate behavior. I note that two of these goals were added to the November IEP with parental approval (Transcript pp. 1881-82). While I agree that the goals could have been better written, I am not persuaded by petitioners' argument that the imprecise measurement standards and reporting periods for the achievement of those goals undermined their ability as well as the ability of others involved in the development and implementation of their son's IEP to determine the effectiveness of his behavior plans. The record shows that the parents were well aware of their son's behavior difficulties. They were involved in discussions regarding behavior strategies. Their suggestions with respect to the use of television as a reinforcer and giving their son the opportunity to earn back rewards were accepted, despite the reservations of the program staff and consultants (Transcript pp. 1870-71). Under the circumstances, I am unable to find that the entire IEP should be found to be invalid based upon inadequate measurement standards for three goals (Application of a Child with a Disability, Appeal No. 00-066).
Additionally, petitioners claim that at the November 1999 CSE meetings, they requested an evaluation by an independent behavioral consultant not affiliated with the program. The CSE chairperson testified that an independent evaluation was suggested by one of the program consultants at an informal meeting in February 2000 (Transcript p. 2152). She indicated that she looked into it, was not able to connect with any of the suggested consultants and that "it went by the wayside" (Transcript p. 2155). Federal regulation requires that if a parent requests an independent evaluation at public expense, the school district must without unnecessary delay either initiate a hearing to show that its evaluation is appropriate, or ensure that an independent evaluation is provided.
Petitioners argue that the failure of the school district to ensure that the evaluation was provided at public expense or initiate the hearing constitutes a denial of FAPE. I disagree. While I note that there is no requirement that requests for independent evaluations be in writing, it is unclear from the record whether the parents actually requested an observation by an independent consultant or whether they merely thought it was a good idea. However, the fact that the CSE chairperson attempted to contact an independent consultant implies that she considered the discussions at the meetings to be more than a mere suggestion. Based upon the information before me, I find that the CSE should have either ensured that the evaluation was provided at public expense, or initiated a hearing to show that its evaluation was appropriate.
Petitioners also claim that the school district failed to provide a 1:1 aide as contemplated by the November 1999 IEP, and as a result, their son continued to regress. They contend that the aide that was assigned to their son was not physically able to manage his behavior, and that rather than being assigned as a 1:1 aide to be by his side at all times, she served as an additional teaching assistant. The student's IEP provided for a 1:1 full time aide. There was no additional requirement that the same aide always be assigned to the student or that the aide be male as petitioners assert. The record shows that a 1:1 aide was in place on December 6, 1999 (Transcript p. 1878). The classroom teacher testified that a 1:1 aide was always assigned to the student, although it was not always the same person. She explained that for generalization purposes, she would rotate the individuals who were assigned to the student. She indicated that she included herself in the rotation (Transcript pp. 1420-21). I find that the student was provided a 1:1 aide consistent with his IEP. Further, I am unable to find any information in the record to support petitioners' contention that their son regressed because the aide was not male. In fact, the student's Gateway progress reports and speech/language evaluation show that he made academic progress, and, though the student's severe behavior continued after the 1:1 aide was hired, there is no evidence demonstrating that it would have improved had the aide been male.
Additionally, petitioners claim that the school district failed to maintain behavioral data on their son as required by his IEP. They note that two of the social/emotional goals relating to behavior provide for evaluation using daily/weekly observation charts. The record shows that the student's behavior was documented and evaluated. The Gateway program was based on an ABA philosophy which includes data collection. The consultant testified that ABC charts were maintained and used to develop behavior treatment plans (Transcript p. 489). Anecdotal records include descriptions of specific behavior and document the frequency and duration of each episode, as well as the way in which the inappropriate behavior was addressed. I find that the school district maintained sufficient behavioral data to use for evaluative purposes.
Petitioners also argue that the school district failed to modify their son's behavioral intervention plans. Again, the record does not support this allegation. A behavioral intervention plan was developed in October 1999 to address the student's inappropriate self-talk and other perseverative behavior. Another one was developed at the November 1999 CSE meetings. However that plan could not be implemented because the parents never signed it (Transcript pp. 845-46). I note that the record includes information about the various behavior strategies used with the student, including positive reinforcement through a token economy system, a sticker board, a "gentle reminder system" which incorporated verbal reinforcement, and reduction in classroom demands in an attempt to eliminate the antecedents for inappropriate behavior.
Petitioners also contend that the school district failed to conduct a functional behavioral assessment and manifestation determination pursuant to 34 C.F.R. §§ 300.520 and 300.523. They claim that in addition to the seven days that their son was formally suspended from school, they were called to pick him up from school on two dozen or more occasions during the 1999-2000 school year. They assert that on those occasions their son was in a "functional time-out", not receiving instruction.
Federal regulations require that a functional behavioral assessment be conducted when a student is removed from school for more than ten consecutive school days or the removal constitutes a change of placement (34 C.F.R. § 300.520[b]). A change of placement is defined as a series of removals that constitute a pattern because they cumulate to more than ten school days in a school year (34 C.F.R. § 300.519). The record includes several suspension letters that show that the student was formally suspended from school for a total of four days before petitioners' hearing request was filed. It also includes a classroom log prepared by the student's teacher that documents calls made to the parents regarding the student's inappropriate behavior and the length of each episode. Additionally, the teacher testified that from the time the student's inappropriate behavior began in the spring of 1999 through the end of February 2000 when she resigned, she called the student's mother approximately 25 times (Transcript p. 1500). She estimated that on two of those occasions the student was picked up just prior to dismissal time.
While petitioners claim that their son was suspended for more than ten days, they fail to support that allegation with credible evidence. The record includes miscellaneous phone bills which merely document that the parents received a handful of calls from the school (Exhibit OO). There is no documentary evidence supporting their claim that they picked up their son from school prior to dismissal on at least two dozen or more occasions or how much instruction he missed on those occasions. Based upon the information before me, I find that the student was not suspended for more than ten school days and that his removals from school do not constitute a change of placement. Therefore, I find that the disciplinary procedures set forth in federal regulations do not apply to this case.
Petitioners also allege several procedural violations concerning the March 2000 CSE meeting. Initially, they claim that the notice for that meeting failed to comply with regulatory requirements. The record shows that petitioners were provided notice that the purpose of the March 2000 CSE meeting was to discuss and possibly revise their son's educational program (Exhibit Q-3). Petitioners contend that there is a distinction between program or services, and placement or actual physical location at the public school. They claim that they were unaware that the CSE would be recommending a change in their son's placement. While I am not convinced that petitioners were unaware of the purpose of the meeting, I do find that the content of the notice did not include the detailed information required by 34 C.F.R. § 300.503. Respondent shall in the future comply with the regulatory requirement.
I note that respondent asserts that the CSE's March 2000 recommendation was not a formal recommendation, because the student had not yet been accepted at Rosemary Kennedy. It claims that once the student had been accepted, the CSE would have had to reconvene to make a formal recommendation (Application of a Child with a Disability, Appeal No. 92-3). The record shows that the CSE chairperson submitted a request for placement to Nassau County BOCES seeking placement for the student at Rosemary Kennedy (Exhibit CC). The record further shows that although the assistant principal at Rosemary Kennedy attempted to schedule an intake screening in April 2000, the student's mother indicated that she preferred to delay the process pending the results of the impartial hearing. There is no indication in the record whether the student was ever screened or accepted at Rosemary Kennedy. However, the record does show that the student completed the 1999-2000 school year at Gateway.
Because the March 2000 proposed recommendation concerned the remainder of the 1999-2000 school year and the student completed the school year at Gateway, it is not necessary that I address the appropriateness of the program at Rosemary Kennedy for the remainder of the 1999-2000 school year. Similarly, I do not address petitioners' procedural challenges concerning the CSE's proposed change of placement because there is no evidence in the record that the CSE reconvened to formalize its proposed recommendation.
Notwithstanding the myriad of procedural claims raised in this appeal, the central issue is whether the Gateway program was an appropriate program for the student given the supports he required because of his behavioral needs during the 1999-2000 school year. Petitioners claim that with proper supports, their son could have been successful in the program. However, there is nothing in the record to support their assertion. In fact, the record shows that the severe behavior continued through the following school year. The school district claims that the student's behavioral needs were so severe that he required a setting with a time-out room and a crisis intervention team. It asserts that such interventions are not consistent with the original intent of the Gateway program. It contends that despite implementing various strategies to stabilize the student's behavior, it became increasingly clear as the school year continued that he could no longer be accommodated in the program.
The record shows that sometime during the spring of 1999, the student began exhibiting severe behavior. That behavior began again after the first few weeks of the 1999-2000 school year. The program staff attempted various strategies of positive reinforcement and reduction in work to stabilize the student's behavior. They acceded to the parents' wishes to give their son the opportunity to earn back rewards, despite concerns expressed by the consultant. In November 1999, a 1:1 aide was provided for the student even though such a support was a departure from the original intent of the program, as it was designed for students who did not require intensive individual instruction. Despite the 1:1 aide and the various behavioral interventions, the student's severe behavior continued. Based upon the information before me, I find that Gateway was no longer an appropriate program for the student. Petitioners' allegations of numerous procedural violations during the 1999-2000 year do not alter the fact that the Gateway program was no longer appropriate for their son. There is no dispute that Gateway was the student's pendency placement and that he remained there at least through the 2000-01 school year. Based upon my determination that Gateway was not an appropriate placement for the student for the remainder of the 1999-2000 school year, the CSE must reconvene to determine an appropriate program for the student.
As a claim for relief in this appeal, petitioners are seeking remedial education for their son in the form of a home program as recommended by the independent behavior analyst. Additionally, petitioners are requesting compensatory education. I am unable to find that petitioners are entitled to either. As set forth above, I have found some procedural violations. To support a finding that a student has been denied a FAPE, procedural violations must be serious and cause the student to lose educational opportunity (Board of Educ. v. Brett Y., 155 F.3d 557 [4th Cir. 1998]). I find that the procedural violations in this case do not constitute a denial of FAPE because there is no evidence in the record that they resulted in a loss of educational opportunity for the student. Compensatory education may be awarded when a student with a disability has been excluded from school, or denied appropriate services for an extended period of time (Burr v. Ambach, 863 F. 2d 1071 [2d Cir. 1988]; Mrs. C. v. Wheaton, 916 F. 2d 69 [2d Cir. 1990]). I find that petitioners' son has not been excluded from school nor been denied appropriate services for an extended period of time.
Having found that respondent failed to comply with the regulations concerning independent evaluations, I must determine the appropriate remedy. Given that the program had a new consultant for the 2000-01 school year, and more than a full school year has been completed during which behavioral data would have been compiled, I am unable to determine whether an evaluation in the form of an observation by an independent behavior consultant would be appropriate at this time. Therefore, I will direct that before the CSE recommends an appropriate program for the student, it must review existing evaluation data on him and, with input from the parents, identify what additional data are needed pursuant to 34 C.F.R. § 300.533.
I have considered petitioners' other claims, which I find to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer's decision, to the extent that it is inconsistent with this decision is annulled, and;
IT IS FURTHER ORDERED that within 30 days from the date of this decision, the CSE shall reconvene to review existing evaluation data, identify what additional data are needed, if any, and upon completion of the necessary evaluations recommend an appropriate program and placement for the student.