02-039

       Petitioner, the Board of Education of the Wallkill Central School District, appeals from an impartial hearing officer's decision ordering it to provide home tutoring to respondents' son for a portion of the 2001-02 school year, and directing petitioner's Committee on Special Education (CSE) to modify the student's behavioral intervention plan (BIP). The appeal must be dismissed.

        I note that the student's parents have not answered the Board of Education's petition. State regulation provides that the notice with petition shall advise the respondent that if an answer is not served and filed in accordance with the provisions of such regulations, the statements contained in the petition will be deemed to be true, and a decision will be rendered thereon (8 NYCRR 279.3). However, I am required to examine the entire record (34 C.F.R. § 300.510[b][2][i]), and to make an independent decision (20 U.S.C. § 1415[g]), notwithstanding respondents' failure to answer (Arlington Central Sch. Dist. v. State Review Officer, 293 A.D.2d 671 [2d Dept 2002]). Therefore, the facts alleged in the petition will be deemed to be true unless found to be inconsistent with the evidence in the record.

        At the time of the hearing of this matter, respondents' son was 16 years old and enrolled in the eleventh grade at petitioner's Wallkill High School. He has reportedly evidenced emotional difficulties since the fifth grade, and has been classified by petitioner's CSE as emotionally disturbed. He is of above average intelligence, but anxiety significantly affects his ability to cope with change, transition and pressure (Exhibit 24). There does not appear to be any dispute about his classification.

        The student attended school in New York, prior to moving out of state with his family during the fifth and sixth grades. He returned to petitioner's middle school for seventh grade, which was apparently a difficult year for him (Exhibit 21). The parties agreed that the student required a specialized placement, and he was placed in Green Chimneys, a private day school for the eighth and ninth grades. His performance on a standardized achievement test in the spring of 2000 was slightly above grade level in reading, somewhat below grade level in mathematics, and at grade level for writing (Exhibit 17). While at Green Chimneys during ninth grade, the student began attending class at the Wallkill High School on a trial basis for part of the school day during the third quarter of the 1999-2000 school year (Exhibit 18), because he had performed well at the private school (Exhibit 27).

        The student began the tenth grade in a special education class conducted by the Ulster County Board of Cooperative Educational Services (BOCES), but left after a short time. Petitioner's CSE then recommended a special class placement for social studies and one period of resource room services each day, as well as 40 minutes of individual counseling per week, in petitioner's high school for the remainder of the 2000-01 school year (Exhibit 15). The student attended BOCES for a vocational education class for part of the school day, and was in petitioner's high school for the rest of the day. He reportedly did reasonably well during the tenth grade, but had increasing difficulty coping in his regular education English class (Transcript pp. 144-145).

        The student was involved in two disciplinary incidents in the spring of 2001. Petitioner's CSE determined that the student's misbehavior in both incidents was a manifestation of his disability (Exhibits 9, 12). After the first incident involving alleged insubordination to an administrator in March 2001, the student was removed from his English class and assigned to independent study for that subject. On June 12, 2001, after the second incident involving the alleged possession of marijuana, the CSE recommended a special day placement at the Dutchess County BOCES for the remainder of the school year, and for the 2001-02 school year (Exhibits 8, 4). I note that the CSE did not include the required parent and regular education teacher members at its June 12, 2001 meeting (cf. Education Law § 4402[b][1][a][ii] and [viii]), nor did it include a parent member at its April 6, 2001 meeting (Exhibit 12).

        The Dutchess County BOCES determined that respondents' son would not be appropriately placed in its adolescent day treatment program (Exhibit 7). Petitioner's director of pupil personnel suggested a comparable program at the Ulster County BOCES (Exhibit 6), but the student's father asked that his son continue to attend the BOCES for vocational education for part of the school day and the Wallkill High School for the rest of the day (Exhibit 5). Following a meeting with the director of pupil personnel and the high school principal in early September 2001, the student returned to petitioner's high school. At the request of the student and his father, no resource room services or counseling were provided to the student (Transcript p. 62). The CSE did not reconvene to amend the June 12, 2001 individualized education program (IEP) that had not been implemented or to prepare a new IEP to reflect the agreement in September 2001 not to provide service to the student.

        In November 2001, the student was involved in an alleged confrontation with the high school assistant principal. Following a disciplinary hearing pursuant to § 3214 of the Education Law, the student was found guilty of three charges of misconduct, and was referred to the CSE for a manifestation determination (Exhibit 3). On December 7, 2001, the CSE determined that the student's misconduct was a manifestation of his disability (Exhibit 2). Noting that the student was then failing all of his courses except English and physical education, the CSE suggested that he receive resource room services and have a revised functional behavioral assessment (FBA) and a revised BIP. However, it deferred making a formal recommendation in order to allow the student's father to consult with the student's psychiatrist (Exhibit 1; Transcript p. 63).

        On January 29, 2002, the CSE reconvened, with the student's psychiatrist participating in the meeting by telephone. It again reviewed the student's grades, and noted that his non-compliant behavior was endangering his continued participation in a BOCES graphic arts course. The CSE recommended that the student receive one period of resource room services on alternate days and 40 minutes of individual counseling by a school social worker each week (Exhibit 1). It should be noted that state regulation provides that a student requiring resource room services receive not less than three hours of such services per week (8 NYCRR 200.6[f][1]).

        The student's parents reportedly requested an impartial hearing in December 2001, before the CSE recommended that resource room services and counseling be provided to the student. The hearing began on February 1, 2002, at which time the parties agreed to a potential settlement that included providing resource room services on a 1:1 basis to the student. It was also agreed that if the parties did not agree to permanently resolve the matter, the hearing would resume on February 19, 2002. The parties were unable to resolve the matter. In his opening statement on February 19, 2002, the student's father asserted that the school district had failed to properly train its staff and to perform a triennial evaluation, and had failed to conduct an adequate manifestation determination and FBA and had prepared an inadequate BIP for his son. He acknowledged that his son needed some support, but he questioned whether the CSE could provide suitable support for the student (Transcript p. 214). Petitioner contended that it had tried to accommodate the parents' requests, but that it was essential that the student receive the special education and related services that its CSE had recommended on January 29, 2002. The hearing concluded on February 25, 2002.

        In a decision dated March 18, 2002, the impartial hearing officer found that the petitioner had made a good faith effort to accommodate the wishes of the student and his parents by withholding special education and related services from the student in the fall of 2001. However, he further found that the student could succeed only if appropriate academic and emotional supports were provided to him. The hearing officer also found that a BIP prepared for the student in the spring of 2001 (Exhibit I) failed to address the student's needs that were identified in an FBA (Exhibit 25), and that such BIP had not been reviewed by the CSE for the 2001-02 school year. He directed the CSE, after consulting the student's psychiatrist, to revise the BIP to address the student's need for positive reinforcement. Noting that the student was then failing two of his courses at school, the hearing officer determined that resource room services would not be educationally beneficial because the student viewed such services as stigmatizing. He ordered the CSE to meet to implement a 1:1 home tutoring program for the student in those subjects that he was failing, in a manner that would allow the student’s regular classes to continue.

        Petitioner asserts that the impartial hearing officer erred in failing to find that its resource room program was appropriate and by requiring it to provide home tutoring to the student. It also appeals from his order requiring the CSE to revise the student's BIP because of its alleged inadequacy. A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

        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). In this instance, the student did not have a valid IEP for the 2001-02 school year until the CSE prepared an IEP on January 29, 2002. As noted above, the CSE did not have each of its required members at either of its previous meetings in April and June 2001. Although an IEP should have been in effect at the start of the 2001-02 school year (34 C.F.R. § 300.342[a]), the question before me is whether the educational program set forth in the January 29, 2002 IEP was appropriate for the student.

        There does not appear to be any dispute about the student's intellectual ability or his academic achievement to date. The student's ability to achieve at a level commensurate with his intellectual ability is hampered by his emotional difficulties. The parties do not agree on whether the student's IEP adequately describes the nature of his special education needs and provides a plan to appropriately address those needs. When a student's behavior impedes his or her learning or that of others, a CSE must consider, when appropriate, strategies, including positive behavioral interventions and supports to address that behavior (20 U.S.C. § 1414[d][3][B][i]).

        The process begins with an FBA to identify the problem behavior, identify the contextual factors that contribute to the behavior, and formulate a hypothesis with regard to the general conditions under which the behavior usually occurs and the probable consequences that serve to maintain it (8 NYCRR 200.1[r]). At the hearing, petitioner submitted an FBA that was reportedly performed shortly after the CSE made its manifestation determination in April 2001 (Exhibit 25). The FBA identifies the student's targeted behaviors as not attending class, being verbally aggressive and non-compliant, and resisting authority. It describes the frequency of such behavior as two to three times per week, and it indicates that the intensity of the behavior has recently escalated. The duration of the behavior is described in the FBA as inconsistent. However, the FBA does not indicate whether each part of the targeted behavior occurs with the same frequency, intensity, and duration. The FBA briefly identifies the factors that seem to cause and maintain the targeted behavior, identifies skill deficits contributing to the targeted behavior, and includes an hypothesis about how to manipulate antecedents to eliminate or reduce the targeted behavior through structure, social skills training, counseling and possible medical intervention. There is no indication that this relatively cursory FBA was updated after the June 2001 and November 2001 disciplinary incidents, even though the CSE had suggested that the FBA be revised at its December 7, 2001 meeting (Exhibit 1). It is also unclear whether the CSE reviewed the BIP that had been developed in April 2001 at its December 7, 2001 or January 29, 2002 meetings (cf. 8 NYCRR 201.3[a][2]).

        After an FBA has been completed, the next step in the process is to develop a BIP. It must include a description of the problem behavior, global and specific hypotheses as to why such behavior occurs, and intervention strategies to address the behavior (8 NYCRR 201.2[a]). A BIP was reportedly prepared for respondents' son after the FBA was completed in the spring of 2001, but petitioner did not have a copy of that document. Instead, it introduced a "recreation" of that document that had been prepared in December 2001 (Exhibit I). I note that petitioner's high school principal testified that the BIP would have been available to the teachers who worked with the student during the 2001-02 school year (Transcript p. 183), but it is unclear whether any BIP was in fact used during the months leading up to the January 29, 2002 CSE meeting.

        The BIP, like the FBA upon which it was apparently based, is very cursory. It lists medication, resource support, schedule changes, "VOTEC" and counseling as "proactive" strategies, and suspensions, detention, and time in a student services office as "reactive" strategies. It lists four strategies for creating an alternative or desired behavior: independent study in English, a "fresh start" with attendance, having the student's resource room teacher present during all conversations involving discipline, and contacting the student's father to discuss events involving discipline. The BIP does not provide for the use of positive reinforcements, notwithstanding the recommendations for their use by the private educational evaluator in 1998 (Exhibit 21) and Green Chimney's school psychologist in 2000 (Exhibit 17). I note that in April 2001, the student's psychiatrist also urged that school staff emphasize the student's accomplishments rather than his present or future failures (Exhibit 13).

        The January 29, 2002 IEP indicates that high levels of anxiety hinder the student's ability to establish relationships with peers and adults and to cope with the high school environment. It further indicates that he needs to improve his anger management, and notes that he is taking mood-stabilizing medication. The IEP has three annual goals: to demonstrate an improvement in socially acceptable behaviors in the school environment; to demonstrate an improvement in organization, study skills and learning strategies necessary to progress towards achieving the learning standards; and to demonstrate an improvement in attending skills to learn effectively in the school environment and progress toward achieving the learning standards.

        An IEP need not include a detailed description of the methods and strategies that will be used to assist the student in achieving his goals and objectives in the area of behavior. That function may be performed by an adequate BIP. However, this student's BIP does not provide sufficient detail about what will be done to improve the student's behavior that interferes with his academic performance, such as his absenteeism and difficulty maintaining self-control. It also fails to include the use of positive reinforcement. It is based upon an FBA that does not adequately detail the nature, frequency, and duration of specific problem behaviors. In the absence of adequate information about the nature and extent of the student's emotional disability and the practices and procedures that could be used to ameliorate its effects, the CSE did not have sufficient information to prepare the student's IEP. Accordingly, I find that petitioner has not demonstrated the appropriateness of the educational program that its CSE had recommended for respondents' son. I agree with the hearing officer that the student's BIP needs to be revised, but before that revision occurs, an adequate FBA should be performed.

        There appears to be no dispute that at the time of the hearing the student was failing many of his subjects and needed academic assistance (Transcript pp. 68, 83-85, 228). As a result of some kind of misunderstanding at the beginning of the 2001-02 school year, the student did not attend any math class for a significant part of the first marking period, and was consequently behind in his work. The hearing officer ordered the CSE to arrange for home tutoring to afford the student an opportunity to catch up academically in his regular education classes for the remainder of the 2001-02 school year. I do not necessarily agree with the hearing officer's conclusion that resource room services would be inappropriate because they would be perceived by the student as stigmatizing. However, that issue is premature in view of the CSE's failure to obtain an adequate FBA and a BIP prior to preparing an IEP. I find that the hearing officer did not exceed his jurisdiction by crafting a temporary remedy of tutoring, pending the development of an appropriate IEP for the student.

THE APPEAL IS DISMISSED.