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Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Bay Shore Union Free School District


Pamela Phillips Tucker, Esq., attorney for petitioners

Ingerman Smith, L.L.P., attorneys for respondent, Christopher Venator, Esq., of counsel


         Petitioners appeal from an impartial hearing officer’s decision which upheld a recommendation by respondent’s Committee on Special Education (CSE) to remove petitioners’ daughter from a regular education classroom with support services and place her in a self-contained special education class for the 2000-01 school year. Petitioners claim the placement violates state and federal statutory provisions, which direct that the child’s behavioral issues be properly evaluated and that she be placed in the least restrictive environment (LRE). The appeal must be sustained.

        Petitioners’ daughter was born with Down syndrome (Exhibit 10). During the 1998-99 school year, in the mornings she attended special education preschool classes offered by the Association of Children with Down Syndrome (ACDS), and in the afternoons she attended regular preschool classes at the YMCA with nondisabled children (Transcript pp. 426-427). Prior to her entry into kindergarten for the 1999-2000 school year, she was evaluated by the school district’s CSE, which classified her as mentally retarded and recommended placement in respondent’s Mary G. Clarkson Elementary School (Exhibit 1) in a "class within a class" program, which offered special aids and services to allow inclusion of children with disabilities in regular education classes (Transcript pp. 34-35). The class consisted of 20 children, four of whom were classified as disabled (Transcript pp. 34-35). In addition to the regular education teacher, the class also included a full day teacher’s aide and provided the services of a special education teacher for approximately one and one-half hours per day (Transcript pp. 34-35). According to the CSE’s individualized education plan (IEP) devised for petitioners’ daughter that year, she would receive speech/language therapy, physical therapy, and occupational therapy (Exhibit 1). Petitioners agreed with the evaluation and enrolled their daughter in the Mary G. Clarkson Elementary School program in the fall of 1999 (Transcript p. 431).

        In November 1999, petitioners’ child was found to require frequent redirection and prompting, and displayed behavioral problems in the late afternoon. The child’s IEP was amended so that instead of a full day she was given a 1:30 p.m. early dismissal and an individual aide was assigned exclusively to her (Exhibit 1; Transcript p. 37). No formal behavioral assessment was performed and no formal written behavioral modification plan was devised at this time (Transcript pp. 281, 171, 173), but the child’s teachers reportedly used their own behavior modification techniques (Transcript pp. 194, 229, 234-235, 237, 106).

        On July 5, 2000 the CSE met to review the child’s progress and develop her IEP, and determine the placement of petitioners’ child in the upcoming 2000-01 school year (Transcript p. 46). Every person who worked with petitioners’ child admitted that she had made some progress during the year (Transcript p. 91). Reports showed that over the 1999-2000 school year petitioners’ daughter had achieved six out of sixteen of her special education goals and three out of seven of her occupational therapy goals as outlined in her IEP, and that she had made progress on all the remaining goals (Exhibits 13, 14; Transcript p. 232). The reports also indicated that the child had made progress in reading, fine motor, social and self-help goals, but had regressed in math (Transcript pp. 175-179). A brief psychological report dated in February 1999 focused primarily on language, motor and cognitive skills, but the psychologist noted that the child could be resistant to direction and suggested the use of positive reinforcement with her (Exhibit 3).

            The only testing done on petitioners’ child during the 1999-2000 school year were two standardized tests, the results of which were reported on her IEP for the 2000-01 school year. Petitioners’ child received an overall cognitive quotient of 65 (below average), on the Battelle Developmental Inventory (BDI) (Exhibit 12), and in March 2000, petitioners’ child attained an overall average rating for kindergartners on the Woodcock-Johnson Psychoeducational Battery - Revised (Exhibit 12; Transcript pp. 173-175). Her special education teacher questioned the accuracy of the results of the latter test, indicating that the child’s abilities might be lower than reflected by the score (Transcript pp. 208-209). In their reports, the child’s special education teacher, her regular education teacher, and her physical therapist all commented that the child had made progress in the inclusion setting (Transcript pp. 136-137, 222-224) and that her behavior had improved somewhat during the year, but indicated that her behavior continued to interfere with her ability to progress (Exhibits 7, 12; Transcript pp. 105, 206).

        The CSE concluded that although the child had made some progress during the school year, her focusing difficulties and her oppositional behaviors such as shutting down, distractibility, leaving the room, and having a very short attention span, indicated that she lacked the readiness to proceed to first grade and that she required a more structured environment (Transcript pp. 51-53, 115-118, 151-152, 202-203). The CSE recommended that the child be placed in a 12:1+1 special education class in respondent’s Fifth Avenue School, where she would receive more individualized attention (Exhibit 12; Transcript pp. 51-58). The IEP also provided that the child would receive individual speech/language therapy three times per week and once per week in a group, as well as individual occupational therapy twice per week and individual physical therapy once per week (Exhibit 12). The recommended class would be taught by a special education teacher with 26 years of experience in teaching children with Down syndrome (Transcript p. 242). Most services would be provided in the same classroom, so that the child’s only contact with nondisabled children would be at lunch. The teacher testified that when she determined that the child’s behavior was under control, the child could be could be gradually mainstreamed in various subjects (Transcript pp. 265-269). The IEP contained no formal behavioral modification plan for petitioners’ child (Exhibit 12).

        Petitioners objected to the removal of their daughter from her current placement to the self contained special education class at Fifth Avenue School. On August 1, 2000 they requested an impartial hearing. The impartial hearing began on October 5, 2000 and ended on March 23, 2001, and included four days of testimony from members of the CSE as well as from the child’s mother, petitioners’ expert psychologist, and the special education teacher from the Fifth Avenue School. Petitioners’ child remained in the Mary G. Clarkson Elementary School’s kindergarten class for the 2000-01 school year while the hearings were in progress (Transcript p. 281), and returned to a full day of classes instead of the early dismissal (Transcript p. 446). At the time of the hearings, the child was six years old.

        The hearing officer rendered his decision, which petitioners received on October 12, 2001. The hearing officer upheld the decision of respondent’s CSE to place petitioners’ child in the special education class at the Fifth Avenue School, citing the following reasons: (1) the child’s disruptive behavior might have an effect on others in an inclusion setting, (2) the child’s needs would be met all day long at the special school, (3) a smaller setting would be beneficial to the child. He noted that the parents could request a change of program when the next IEP was prepared, if sufficient progress has been made such that the Fifth Avenue School is no longer the least restrictive environment for the child.

        Petitioners contend that the hearing officer erred in not annulling the CSE’s recommendation because it had failed to adequately assess their child’s behavioral problems and devise and implement a formal behavioral intervention plan prior to recommending placement in a more restrictive setting, and by finding the Fifth Avenue School’s self-contained class to be the least restrictive environment for the child. Respondent contends that the teachers’ testimonial accounts of the child’s behavior and the teachers’ use of informal behavioral techniques satisfied its responsibility to properly assess her, and that the recommended placement was the least restrictive environment for this child to receive meaningful educational benefit.

        The Individuals With Disabilities Education Act (IDEA) ensures that "all children with disabilities have available to them a free appropriate public education [FAPE]" (20 U.S.C. § 1400 [d][1][A]). This does not create a duty to maximize the child’s academic potential (Hendrick Hudson Dist. Bd. of Educ. v Rowley, 458 U.S. 176, 198 [1982]; Walczak v Florida Union Free Sch. Dist., 142 F.3d 119, 132 [2nd Cir. 1998]; Tucker v Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2nd Cir. 1989]). An appropriate education for a student with a disability is one in which IEP goals are reasonably calculated to enable the child to receive meaningful educational benefits (Rowley, 458 U.S. at 192; Walczak, 142 F.3d 119), and the recommended program is the least restrictive environment for the child (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1] and 8 NYCRR 200.1[cc]). There is a strong preference for mainstreaming or inclusion of the child in regular education classrooms whenever possible (Rowley, 458 U.S. at 202; Walczak, 142 F.3d 119; Oberti v Bd. of Educ. of the Borough of Clementon Sch. Dist., 995 F.2d 1204 [3rd Cir. 1993]; Application of a Child with a Disability, Appeal No. 94-21; Application of a Child with a Disability, Appeal No. 94-18).

        An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). A board of education bears the burden of demonstrating that the program devised for the child both assures an appropriate education and is the least restrictive alternative (Oberti, 995 F.2d 1204; Mavis v Sobol, 839 F. Supp 968 (N.D.N.Y. 1994); Application of a Child with a Disability, Appeal No. 00-093; Matter of a Handicapped Child, 22 Ed Dept Rep 487 [1983]).

        The threshold issue in this case is whether respondent’s CSE had adequate information about the child’s behavioral needs and limitations at its July 5, 2000 meeting to determine a program or placement which would appropriately meet her needs in the least restrictive environment.

        State and federal law require that a child’s IEP be reviewed and, if appropriate, revised periodically, but not less than annually (20 U.S.C. § 1414[d][4][A][i]; 8 NYCRR 200.4[f]). What constitutes a suitable evaluation depends upon the nature of the child’s disability and the nature of the change in the child’s placement (Application of a Child with a Disability, Appeal No. 93-22). Although a functional behavioral assessment is required in the initial evaluation of the child, both state and federal regulations also provide that any subsequent IEP review "shall. . .in the case of a student whose behavior impedes his or her learning or that of others, consider, when appropriate, strategies, including behavioral interventions, and supports to address that behavior" (8 NYCRR 200.4[d][3] [emphasis added], 8 NYCRR 2004.[f][1][i]; 34 C.F.R. § 300.346[a][2][i], 34 C.F.R. § 300.346[b]). Federal regulations specify that "a failure to, if appropriate, consider and address these behaviors in developing and implementing the child’s IEP would constitute a denial of FAPE to the child" (Appendix A to Part 300 Notice of Interpretation, Section IV, Question 38).

        The CSE must first accurately assess the child’s behavior, drawing upon a variety of sources, including tests, parent and teacher input, and adaptive behavior, and ensure that the information obtained is documented and carefully considered (34 C.F.R. § 300.535[a][1], [a][2]). In so doing, the CSE has an affirmative obligation to administer tests and other evaluation materials as needed to ascertain whether any additional modifications to the IEP are necessary in order for the child to participate in the general ciriculum (8 NYCRR 200.4[b][5][iii]), including using instruments that may assess the contribution of behavioral factors, where appropriate (20 U.S.C. § 1414[b][2][C]; 34 C.F.R. § 300.532[i]). These tests must be tailored to assess the particular area of need of the child, not merely provide a general intelligence quotient (34 C.F.R. § 300.532[d], 34 C.F.R. § 300.536[b]; 8 NYCRR 200.4[b][6][iii]). Thus, a CSE must accurately identify a student’s needs as a first step when amending his or her IEP, which would include, where behavior is at issue, performing a functional behavioral assessment and/or adding a formal behavior management plan to the IEP where appropriate (Application of a Child with a Disability, Appeal No. 01-094; Application of the Bd. of Educ., Appeal No. 01-060; Application of a Child with a Disability, Appeal No. 00-081; Application of a Child With a Disability, Appeal No. 99-56). Once the behavior is assessed, where behavioral concerns exist, any new IEP must specifically reflect which behaviors must be changed or refocused in order for the child to achieve academic success (Application of a Child with a Disability, Appeal No. 93-15).

        The record reveals that during the 1999-2000 school year, the child’s teachers all observed that behaviors related to her disability interfered with her ability to learn (Exhibits 7, 12; Transcript pp. 105, 206). However, no formal functional behavioral assessment or behavioral testing was ever conducted prior to the recommendation for a change in placement and, although her teachers attempted to use informal methods to try to control her behavior with varying results (Transcript pp. 170-173, 202, 218, 230, 235, 237, 109-111, 122, 126, 129), no formal behavioral modification plan was ever put into place during the 1999-2000 school year, prior to the CSE’s change of placement recommendation (Transcript pp. 98, 229). Although the school psychologist observed the child’s classroom periodically and noticed the child’s behaviors, she never conducted a formal written behavioral assessment of the child, nor did she develop a behavioral intervention plan for the child (Transcript pp. 148, 193, 170-171). The director of special education for the school district was aware that some of the child’s behaviors interfered with learning, and based his placement decision in part on this information (Transcript pp. 91). However, he admitted that no formal behavior plan was developed for petitioners’ child, claiming that the teachers were addressing this concern informally and that they did not feel a behavioral intervention plan was necessary (Transcript p. 98).

        Although both her special education teacher and her regular education teacher related anecdotal examples of the child’s misbehavior, such as lying on the floor and refusing to cooperate (Transcript pp. 201, 219, 108, 110), there was no formal documentation of the frequency or duration of these incidents (Transcript pp. 125, 491-492). Respondent relies on this anecdotal testimony from the child’s teachers as sufficient to assess her behavior. However, anecdotal testimony is not sufficient for a CSE to base a change in placement. Psychological or behavioral testing and a more formal analysis of the child’s behavior is required (Application of a Child with a Disability, Appeal No. 94-21; Application of a Child with a Disability, Appeal No. 94-18; Application of a Child with a Disability, Appeal No. 94-17; Application of a Child with a Disability, Appeal No. 93-22). Where behavior is at issue, and here all parties agreed it was, the CSE must properly assess that behavior as an initial step in developing an appropriate IEP (Application of a Child with a Disability, Appeal No. 01-094; Application of the Bd. of Educ., Appeal No. 01-060). To properly assess that behavior, a functional behavioral assessment should have been developed to determine why the behavior occurred and the impact of the behavior on the child’s academic progress (Application of a Child with a Disability, Appeal No. 00-081). This is especially true here, where the nature of the change in placement is not a minor one, but a removal from the mainstream to a separate school in a self-contained class for all subjects where the child would have, at least initially, virtually no contact with nondisabled children (Transcript pp. 265-269). For the foregoing reasons, I find that the CSE erred in failing to conduct a formal functional behavioral assessment of petitioners’ child in its evaluation before recommending a change in placement in the new IEP.

        Petitioners also contend that the CSE erred in not including a specific behavior modification plan in their child’s IEP. It is uncontroverted that all members of the CSE were in agreement that petitioners’ child’s disability-related behavior was interfering with her ability to receive educational benefits (Exhibit 12; Transcript pp. 105, 206). If behavior is a concern, the IEP must include specific goals and objectives for a behavior plan (Application of a Child with a Disability, Appeal No. 94-18; Application of a Child with a Disability, Appeal No. 94-12), and identify appropriate positive behavioral interventions to be used with the student (Application of a Child with a Disability, Appeal No. 01-101; 8 NYCRR 200.4[f][1][i], 8 NYCRR 200.4[d][3]). This child’s 2000-01 IEP included no specific behavior modification plan to address the child’s behavioral need (Exhibit 12; Transcript p. 98). The IEP simply included a standard form listing various study skills and social behavior goals such as "will demonstrate age-appropriate behaviors" and "will interact positively with adults". It suggested using "assertive discipline" and "behavior modification", but included no criteria for mastery. While in a global sense the objectives relate to the child’s deficits, they lack the specificity needed to implement an appropriate program and to measure progress. The IEP contained no behavioral analysis or behavioral modification plan with specific directions on how to control the child’s inappropriate behavior or how to redirect or refocus her attention so that she could receive educational benefits (Exhibit 12; 8 NYCRR 200.4[d][3][i]).

        As noted, no formal behavioral data were ever compiled (Transcript pp. 491-492). Without data with respect to frequency and precursors to the student’s inappropriate behavior, the CSE lacked the information with which to prepare an appropriate IEP (Application of a Child with a Disability, Appeal No. 01-101). In this regard, I find that the CSE erred by not revealing in her IEP how the child’s behaviors could be changed or refocused in order for her to achieve academic success (Exhibit 12) (34 C.F.R. § 300.346[a][2][i], 34 C.F.R. § 300.346[b]; Appendix A to Part 300 Notice of Interpretation, Section IV, Question 38; 8 NYCRR 200.4[d][3][i]; Application of a Child with a Disability, Appeal No. 93-15; Application of a Child With a Disability, Appeal No. 00-093).

        Since a proper functional behavioral assessment was never completed, appropriate supplemental aids and services which might have allowed petitioners’ child to receive the benefits of her education were never identified or provided to determine if she could learn adequately in the less restrictive setting prior to the recommendation for removal. I note in passing that testimony at the hearing revealed that when a formal behavioral intervention plan was finally devised and put in place for petitioners’ child during the 2000-01 school year, she reportedly did make some progress behaviorally and academically (Transcript pp. 143; 446-447, 466; 474-475, 490-491), and that at least part of her inappropriate behaviors were thought to be attributable to immaturity (Transcript p. 230). I find that the CSE’s recommendation for a change of placement was at best premature (Application of a Child with a Disability, Appeal No. 00-040; Application of a Child with a Disability, Appeal No. 99-56). The needed behavioral data and assessment should have been obtained by the CSE before it prepared the child’s IEP and made its placement recommendation, so that it would have a basis for selecting an appropriate program (Application of a Child With a Disability, Appeal No. 94-21). Because the required evaluations were not conducted, I need not reach the question of whether or not the Fifth Avenue School’s self-contained special education class was or was not the least restrictive environment for petitioners’ child at the time of the challenged recommendation.

        Upon the record before me, I find that respondent has not met its burden of proof with respect to the appropriateness of the placement recommended by its CSE. I will direct respondent to have the CSE immediately perform a full, up-to-date evaluation of petitioners’ child, including a formal written functional behavioral assessment as defined in 8 NYCRR 200.1[r], as well as a psychological and an educational evaluation to determine whether or not a change in placement is now warranted. The functional behavioral analysis should contain documentation of the child’s behavior and its effect on her ability to learn, and a behavioral modification program should be developed and attached, if appropriate (Application of a Child with a Disability, Appeal No. 94-18). Respondent is reminded that the law requires that, whether or not the child will excel academically in a more restricted environment, the child can be removed from regular education only when the nature or severity of the disability of a child is such that education in the regular classes with the use of supplementary aids and services cannot be achieved significantly (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1] and 8 NYCRR 200.1 [cc]). The child’s current status and the results of the required assessments will determine whether or not educational progress can be made in her current placement with the aid of a specific behavioral modification plan, specific IEP behavioral goals, and any other appropriate supplementary aids and services.

IT IS ORDERED that the hearing officer’s decision is hereby annulled; and

IT IS FURTHER ORDERED that the CSE shall promptly conduct a new educational evaluation and a functional behavioral assessment before recommending changes in the child’s placement.

Topical Index

Parent Appeal
Special FactorsInterfering Behaviors (FBA/BIP)