Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Penfield Central School District
Joyce B. Berkowitz, Esq., attorney for petitioner
Harris Beach LLP, attorneys for respondent, Alfred L. Streppa, Esq., of counsel
Petitioner appeals from an impartial hearing officer's decision upholding the determination of respondent's Subcommittee on Special Education (subcommittee) that misconduct for which her son was disciplined was not a manifestation of his disability. Petitioner also appeals from the hearing officer's finding that a subsequent functional behavioral assessment (FBA) and behavior intervention plan (BIP) were adequate and developed in a timely manner by respondent's Committee on Special Education (CSE), as well as his failure to find that respondent did not provide her son with a free appropriate public education (FAPE) during his 45-day suspension. The appeal must be sustained in part.
At the time of the hearing, petitioner's son was 16 years old and in the tenth grade. He was suspended from respondent's Penfield High School and was receiving home instruction.
Petitioner's son received speech and language services in preschool, part of kindergarten and first grade. He also received resource room services and counseling for anxiety in the first grade. In the second grade, he was identified as a student with a learning disability and has remained so classified since that time. The student received consultant teacher services from second grade through sixth grade. He reportedly successfully transitioned to respondent's middle school. In the seventh grade, respondent provided the student with "differentiated supplemental instruction" (DSI) in addition to consultant teacher services in his core subject areas. The student continued to receive this level of support in the eighth grade. There is no indication that he failed any courses, was close to failing, or repeated any grades during these years. There is no evidence that he exhibited behavior difficulties or disciplinary problems during this time. Respondent provided the student with consultant teacher and DSI services in the ninth grade and assigned him to mainstream academic classes.
The student had significant academic difficulty in the ninth grade during the 2000-01 school year. At times during the course of the year, he failed global history, language arts, math, and physical education (PE). His final grades included an incomplete in math, an F in language arts, and a D in both global history and earth science (Parent Exhibit 8 p. 1). During that year, teacher comments reported that the student needed to concentrate on class work, needed extra help, needed to prepare better for class, found the course material demanding, and was inattentive and too talkative (Parent Exhibit 8). The student showed a gradual but continuing increase in class absenteeism during the year. He missed nine of his classes in the first quarter, and this increased to 17 in the fourth quarter (Id. p. 1). There is no information to suggest that petitioner's son exhibited any other behavioral or conduct difficulties during this year.
Respondent changed the student's program in the tenth grade during the 2001-02 school year and assigned him to full time special education classes with a student-teacher ratio of 12:1+1 for math, global studies, science, and English. He was also enrolled in regular education art, health and PE. During that year, except for English, the student's special education subject area grades improved. His final grades included an F in his first semester health and PE classes. Third quarter grades, the last that are reported, were A in history, B in science, B- in art, C in math, D+ in his second semester PE class, an incomplete in English, and F in the PE class that he had failed and repeated (Parent Exhibit 3). His absenteeism increased significantly, both when compared to that of the previous year and as the 2001-02 school year went continued. Petitioner's son missed a total of 18 classes in the first quarter. This increased to almost 50 classes in the third quarter (Id.). The student's English teacher indicated that his absences may have affected his achievement in her class (Id.).
The student exhibited significant behavior problems during the first three quarters of tenth grade. These included incidents of truancy and insubordination in September, and numerous incidents of cutting classes, poor attendance, cutting detention, and/or unacceptable language in October (District Exhibit 5 pp. 9-13, District Exhibit 6 pp. 6-7). At the request of an assistant principal, the student signed a behavioral contract on October 31, 2001. In the contract, he agreed that he would not verbally or physically threaten, harass or insult other students but would bring any concerns about other students' conduct to school officials (District Exhibit 1). A number of other students were also asked to sign such a document as two groups had been involved in mutual name-calling and threats of fighting (Transcript pp. 20, 35). Respondent did not challenge petitioner's assertion that students in one group had been taunting her son with respect to matters including his special education status, his program, and his cognitive abilities (Parent Exhibits 5, 7; Transcript pp. 171-75).
Petitioner's son was suspended for five school days effective December 7, 2001, for shoving another student (District Exhibit 5 p. 8). A superintendent's hearing extended the suspension to eight school days, and he returned to school on December 19, 2001 (District Exhibit 5 pp. 6, 7). Petitioner's son cut classes in January 2002 (District Exhibit 5 p. 5). After a February meeting involving school and police officials and the two groups of students who were in conflict, the situation apparently deescalated (District Exhibit 2; Transcript pp. 57-58). The student had additional incidents of tardiness and cutting classes in February and another incident of cutting classes on March 1, 2002 (District Exhibit 5 pp. 1, 3-4).
On March 22, 2002, petitioner's son and another student were involved in a verbal and physical altercation (District Exhibit 2; Transcript pp. 19-20). Later that day, respondent suspended petitioner's son for five school days for this incident (District Exhibit 6 p. 5). Respondent also held a superintendent's hearing with respect to a possible longer suspension (N.Y. Education Law § 3214[c]; 8 NYCRR 201.9[c]), and the guilt phase of this hearing (8 NYCRR 201.9[c]) was held on April 1, 2002 (District Exhibit 4), at which time the student was found guilty of the charges against him (District Exhibit 2 p. 2).
On April 1, 2002, respondent held a manifestation determination meeting (District Exhibit 6 p. 1) as required by the Individuals with Disabilities Education Act (IDEA) and the relevant provision of the Education Law which incorporates the IDEA discipline requirements into state law (20 U.S.C. § 1415[k]; Education Law § 3214[g]). A manifestation determination meeting is required in certain circumstances. It is required when it is contemplated that a student with a disability will be suspended for more than ten consecutive school days. It is also required if a student with a disability will be suspended for a period of ten consecutive days or less if the student is subjected to a series of suspensions or removals that constitute a pattern because they cumulate to more than ten school days in a school year and because of such factors as the length of each suspension or removal, the total amount of time the student is removed and the proximity of the suspensions or removals to one another (34 C.F.R. § 300.523[a]; 8 NYCRR 201.4[a]). The purpose of a manifestation determination meeting is to review the relationship between the student's disability and the behavior subject to disciplinary action and to determine whether that conduct was a manifestation of the disability (34 C.F.R. § 300.523; 8 NYCRR 201.4). A determination was made on April 1 that the March 22 incident was not a manifestation of the student's disability (District Exhibit 7; Transcript pp. 32-34, 67-68, 82, 123-24). At the time of the meeting, petitioner's son did not have an FBA or a BIP, and it was also decided at that meeting that an FBA and possibly a BIP should be prepared (Transcript p. 79).
The IDEA and the implementing federal and state regulations provide that upon a determination that conduct subject to disciplinary action is not a manifestation of a disability, a student with a disability may be disciplined in the same manner as a nondisabled student (20 U.S.C. § 1415[k][A]; 34 C.F.R. § 300.524[a]; 8 NYCRR 201.9[c]). Consistent with this, on April 4, 2002, the penalty phase of the superintendent's hearing was held (8 NYCRR 201.9[c]). After hearing testimony, the hearing officer for that hearing recommended the student's suspension for the balance of the school year and participation in private anger management therapy (District Exhibit 2). Petitioner requested an impartial hearing relating to the manifestation determination in a letter dated April 4 and stamped received by respondent on April 9, 2002 (District Exhibit 8). Also consistent with respondent's decision that the March 22 incident was not a manifestation of a disability, the superintendent issued a final suspension decision by letter dated April 12, 2002. She concluded that petitioner's son had been guilty of misconduct and suspended him for 45 days. She also ordered that he be placed in an interim alternative educational setting (IAES) to receive tutoring through June 3, 2002, and that he be allowed to return to school on June 4, 2002 (District Exhibit 4).
Respondent's CSE met on April 22, 2002 to discuss an FBA and BIP that had been drafted by a team of respondent's staff members (District Exhibit 15; Transcript pp. 124-25, 127, 138, 144, 149, 152, 155). After that review, the CSE recommended modifying the student's educational program to include weekly counseling and a school-based anger management program (District Exhibit 13; Transcript p. 152).
An impartial hearing officer was appointed on April 10, 2002. By agreement, the hearing proceeded on May 7, 2002. During the hearing, petitioner claimed that the manifestation determination was made by an improperly constituted CSE in that it did not have a second parent member, that she did not receive notice that this meeting was a meeting of a subcommittee, and that she was not advised that a recommendation from that meeting could be appealed to respondent's CSE. She also questioned whether all relevant documents and materials were reviewed at the manifestation determination, whether respondent erred in determining that the student's behavior was not a manifestation of his disability, whether in light of the student's behavior that year the individualized education program (IEP) for that year had been adequate, whether the FBA and BIP reviewed at the April 22, 2002 CSE meeting were adequate and timely, and whether respondent provided her son with a proper educational program after his March suspension.
The hearing officer rendered a decision on May 23, 2002. He concluded that the manifestation determination was made by the subcommittee rather than by the CSE, that respondent did not give petitioner proper notice that it was a subcommittee meeting, that the subcommittee's decision that the student's conduct on March 22, 2002 was not a manifestation of his disability was appropriate, and that the FBA and BIP were timely and in compliance with the applicable regulations. He also concluded that the educational program provided to the student during the 45-day suspension was "highly questionable" with respect to whether it provided the student with a FAPE. The hearing officer ordered respondent to review its policies and procedures regarding the provision of educational services when placing students with disabilities in interim settings for disciplinary purposes. Because the subcommittee did not give petitioner notice that it was a subcommittee and because petitioner had a right to review of that decision by respondent's CSE, the hearing officer concluded that respondent's CSE should review the April 1, 2002 determinations of the subcommittee at petitioner's request.
I will first address respondent's claim that the appeal is moot because the suspension is over (Answer paragraph 37). Petitioner seeks remedial relief, including the expungement of her son's disciplinary record and tutoring during the 2002-03 school year, as a result of the asserted violation of the IDEA (Petition prayer for relief items 10, 11). Respondent contests the granting of such relief. Thus, there is a continuing controversy between the parties, the matter is not moot and the case remains justiciable (See e.g. Univ. of Texas v. Camenisch, 451 U.S. 390, 393 ). Moreover, I would retain jurisdiction even if petitioner were not seeking relief from the consequences of the claimed illegal conduct as this is a case where the challenged action is capable of repetition as to the parties before it and would evade review because the duration of such action is too short to be fully litigated prior to its expiration (Honig v. Doe, 484 U.S. 305, 318 , citing Murphy v. Hunt, 455 U.S. 478, 482 ; Application of a Child with a Disability, Appeal No. 02-042). Respondent is also incorrect in asserting that the State Review Officer (SRO) does not have jurisdiction over petitioner's request that the suspension be expunged. Petitioner's request is premised on asserted violations of the IDEA as it relates to disciplining students with disabilities. The SRO has jurisdiction to review such violations (34 C.F.R. §§ 300.528[d] and 300.510[a]; see Application of the Bd. of Educ. of the Onteora Cent. Sch. Dist., Appeal No. 98-83).
The group that conducted the manifestation determination meeting on April 1, 2002 did not include an additional parent member (District Exhibit 7 p. 2; Transcript pp. 66-67, 90). Petitioner contends that the group's manifestation determination must be nullified because the meeting was a CSE meeting and required an additional parent member pursuant to Education Law § 4402(1)(b)(1)(a)(viii). Petitioner argues that the April 1 meeting was a CSE meeting because the letter giving petitioner notice of the meeting styled it as such (Petition pp. 1, 4). In this case, however, the April 1, 2002 manifestation determination meeting was not a meeting of respondent's CSE but a meeting of a subcommittee (Transcript pp. 66, 89-90, 91, 111). A subcommittee is not required to have an additional parent member (Education Law § 4402[d]). I also note that the subcommittee included the individuals who are required by the IDEA to participate in a manifestation determination review (34 C.F.R. § 300.523[b]).
Petitioner contends that she did not receive proper notice of the April 1, 2002 manifestation determination meeting because the notice of the meeting did not advise her that a social worker and additional parent member would attend. Respondent is required to give written notice of its CSE and subcommittee meetings (8 NYCRR 200.5[c]). Such notice must include the name and title of those persons expected to attend (8 NYCRR 200.5[c][i]).
Petitioner's argument that respondent's meeting notice should have given her notice that an additional parent member was expected to attend has no merit as, while such a person is a required member of respondent's CSE, an additional parent is not a required member of respondent's subcommittee (8 NYCRR 200.3[c]). Petitioner is correct that respondent’s meeting notice (District Exhibit 6 p. 1) did not give her notice that a school social worker would attend the subcommittee meeting. There is no claim, however, that petitioner objected to this person's attendance at the meeting. The petition does not set forth any reason why the attendance of the school social worker prejudiced petitioner or her son or was otherwise objectionable. I also note that a subcommittee may include other persons having knowledge or special expertise regarding the child (8 NYCRR 200.3[c][vii]) and that the applicable manifestation review regulations provide that the review and determination is to be made by an IEP team, which in New York is the CSE or subcommittee, as well as other qualified personnel (34 C.F.R. § 300.523[b], [c] and [d]; 8 NYCRR 201.4[b], [c], and [d]). In light of the purpose and subject matter of the meeting, a school social worker was a permissible participant. If, at the time the meeting notice was sent, respondent expected the social worker to attend, respondent should have so notified petitioner. However, under the circumstances here, the lack of such notice does not constitute a sufficient reason to annul the outcome of the subcommittee meeting (Application of a Child with a Disability, Appeal No. 01-061; see also Application of a Child with a Disability, Appeal No. 01-046).
I now turn to petitioner's appeal from the hearing officer's conclusion that the subcommittee correctly determined that the student's March 22, 2002 conduct was not a manifestation of his disability. When reviewing a manifestation determination, the hearing officer is required to determine whether the district demonstrated that the student's behavior subject to disciplinary action was not a manifestation of the student's disability (20 U.S.C. § 1415[k][B][i]; 34 C.F.R. § 300.525[b]; 8 NYCRR 201.11[a]). A student's behavior may be found not to be a manifestation of the student's disability only if the IEP team, in this case the subcommittee,
(i) first considers, in terms of the behavior subject to disciplinary action, all relevant information, including -
(I) evaluation and diagnostic results, including such results or other relevant information supplied by the parents of the child;
(II) observations of the child;
(III) the child's IEP and placement; and
(ii) then determines that –
(I) in relationship to the behavior subject to disciplinary action, the child's IEP and placement were appropriate and the special education services, supplementary aids and services, and behavior intervention strategies were provided consistent with the child's IEP and placement;
(II) the child's disability did not impair the ability of the child to understand the impact and consequences of the behavior subject to disciplinary action; and
(III) the child's disability did not impair the ability of the child to control the behavior subject to disciplinary action.
(20 U.S.C. § 1415[k][C]; 34 C.F.R. § 300.523[c]; 8 NYCRR 201.4[c]). Further, if the IEP team and other qualified personnel determine that any of the above three criteria are not met, the student's behavior shall be considered a manifestation of the student's disability (34 C.F.R. § 300.523[d]; 8 NYCRR 201.4[d]).
Here, the impartial hearing officer failed to review properly the subcommittee's manifestation determination as required by 20 U.S.C. § 1415(k)(6)(B)(i). In particular, he did not examine whether the subcommittee made the determinations required by the IDEA at 20 U.S.C. § 1415(k)(4)(C)(ii). In relevant part, the hearing officer only concluded that the decision of the subcommittee was appropriate, that there was no relationship between the student's March 22, 2002 conduct and the elements of his disability noted on his IEP, and that the student's behavior was therefore not a manifestation of his disability (Decision pp. 11, 15). On the basis of my review of the record and for the reasons that follow, I find that respondent failed to meet its burden to demonstrate that the student's behavior was not a manifestation of his disability as required by the IDEA and its implementing regulations.
I first note that when undertaking a manifestation determination, the relevant question is not limited to the relationship between the specific educational deficits listed in the IEP and the conduct that resulted in the disciplinary action as suggested by respondent (Transcript pp. 32-33, 67-68, 81-82, 123), but takes into account the broader relationship between the student's disability (including associated conduct) and the behavior subject to discipline (See 20 U.S.C. § 1415[k][A][ii]; 34 C.F.R. § 300.523[a]; 8 NYCRR 201.4[a]). The manifestation determination must consider needs that currently exist but which have not been previously identified (Waynesboro Area Sch. Dist. 34 IDELR 167 [SEA Pa. 2001]), and disabilities that the student may have but have not yet been identified (Richland School District v. Thomas P., 32 IDELR 233 [W.D. Wis. 2000]).
With respect to the obligation to consider all relevant information, I find that the subcommittee which made the manifestation determination did not consider relevant evaluations, observations, and other information with respect to the student and relevant to his March 22, 2002 conduct as required by 20 U.S.C. § 1415(k)(4)(C)(i). The subcommittee did not consider the student's most recent multidisciplinary team evaluation (District Exhibit 6; Parent Exhibit 9; Transcript p. 114), which showed that his March 22, 2002 conduct was inconsistent with his past behavior. It did not consider his ninth and tenth grade school report cards (District Exhibit 6; Parent Exhibits 3, 8; Transcript pp. 40-41, 74), which documented that during the covered time period the student had not been a behavior problem in his classes, and that the March 22, 2002 incident had been preceded by a steadily increasing rate of class cutting, indicating that the incident may have been part of a larger issue. It did not consider staff observations of the student, contained in respondent's disciplinary referrals (District Exhibits 6, 5). This was relevant information as it provided more detail about the student's pre-March 22, 2002 conduct, behavior, and attendance difficulties than was available on the computer-generated conduct report before the subcommittee. Moreover, in this case, in light of the purpose of a manifestation determination review (see 34 C.F.R. § 300.523; 8 NYCRR 201.4), based on the seriousness of the March 22, 2002 and on the absence of a psychological evaluation subsequent to the time the student's behavior changed, the subcommittee should have promptly prepared and reviewed a psychological evaluation that included projective testing as part of its manifestation determination to ascertain whether there was any relationship between a disability and the student's March 22, 2002 conduct.
I further find that the record does not show that the subcommittee made the specific determinations concerning the relationship between the appropriateness of the student's IEP and the misconduct, the effect of the student's disability upon his ability to understand the consequences of his behavior, and the effect of the student's disability on his ability to control his behavior which it was required to make pursuant to 20 U.S.C. § 1415(k)(4)(C)(ii) prior to concluding that the student's behavior was not a manifestation of his disability.
Moreover, on this record, respondent has failed to meet its burden of showing that the March 22, 2002 conduct was not a manifestation of the student's disability. There is insufficient information to conclude that the student's disability did not impair his ability to understand the impact and consequences of that behavior or his ability control that behavior (20 U.S.C. § 1415[k][C][ii][II] and [III]; 34 C.F.R. § 300.523[c][ii] and [iii]; 8 NYCRR 201.4[c][ii] and [iii]). The subcommittee chair considered it important that the student told the committee that he could control himself (Transcript p. 76) and that an assistant principal who served on the subcommittee reported that he had talked to the student about strategies other than fighting, but that the student chose not to use them (Id.). The relevant question, however, is not whether the student or assistant principal thinks that the student can control himself or had other options, but whether the student's disability impaired his ability to understand the impact and consequences of his behavior and his ability to control that behavior. Here, the only thing relied upon by the assistant principal for his conclusion that the student was not so impaired was the content of the IEP (Transcript pp. 33-34). However, in light of the significant change in the student's behavior and the lack of a current evaluation, I find that is not a sufficient basis here to support the conclusion. The school psychologist reportedly advised the subcommittee that the student's troubles outside of class were not really part of his disability (Transcript p. 76). The psychologist, however, did not testify, and there is no testimony that she based her opinion on a current evaluation of the student's conduct and behavior. Further, there was no testimony that the psychologist addressed the specific questions set out at 20 U.S.C. § 1415(k)(4)(C)(ii) regarding whether the student's disability impaired his ability to understand the impact and consequences of the behavior for which he was disciplined or impaired his ability to control that behavior. Moreover, as indicated above, there is no current evaluation of the student to support such conclusions.
Additionally, the record does not show that, in relationship to the March 22, 2002 incident, the student's IEP or placement was appropriate (20 U.S.C. § 1415[k][C][ii][I]; 34 C.F.R. § 300.523[c][i]; 8 NYCRR 201.4[c][i]). The March 2002 conduct cannot be seen in a vacuum. It was only one of a number of events during the 2001-02 school year which were inconsistent with the student's previous conduct and which took place when respondent implemented the change in the student's program from mainstream classes to a program which included a number of special education classes. These newer behaviors included swearing at staff, insubordination, a significant increase in absences, ignoring assigned detention, shoving, and fighting. The school's administrative staff was aware of these problems and responded by engaging the student in a behavior contract, by discussion with the police and the two groups of students who were in conflict, and by taking disciplinary action. Some effort was also apparently made in or about February 2002, long after the student's difficulties started, to provide him with access to anger management counseling. There is nothing in the record, however, to suggest that the CSE or a subcommittee was made aware that the student's behavior was significantly changing, of the great difficulty he was having, or of the increasing administrative interaction he was having. I note also that his IEP coordinator apparently knew very little about what was going on (Transcript pp. 131-32, 134-36).
There is no evidence that, at any time before the manifestation determination meeting, the CSE or a subcommittee met to discuss the student, determine whether an evaluation was needed, or decide whether counseling or a change in program with additional services would address the student's behaviors. Further, there is nothing to suggest that when the administrative staff apparently decided to provide the student access to anger management counseling, this was discussed with the CSE or a subcommittee. There is no evidence that respondent evaluated the student prior to his change in program at the beginning of the 2001-02 school year. Further, the IEP for that school year made no provision for transitional counseling in the event that the student's placement for the first time in self-contained special education classes led to teasing or taunting by other students, or produced emotional or behavioral difficulties of the type the student experienced.
Petitioner's son is a teenager and a student with a disability in a high school environment. From the ninth to the tenth grade, he was transitioning to a more restrictive environment and to a program where his special class placement clearly identified him to his peers as a student with a disability. Because of this, and in order to address the stressors that would come from such a transition, respondent's CSE or subcommittee should have anticipated the possible need for counseling and made provision for that as a related service in the IEP it recommended for the 2001-02 school year. Moreover, during the first half of the 2001-02 school year, when the student began to have obvious difficulty with certain other students and his changed behavior resulted in numerous disciplinary referrals, the CSE or a subcommittee should have met, discussed the student's needs, and considered revising his IEP to include support services such as counseling (See 20 U.S.C. § 1414[d][A][ii] [CSE must revise student's IEP as appropriate]; see also, 34 C.F.R. Part 300, Appendix A, Question 20). I find that the student was certainly in need of counseling as a related service by the time of the March 22, 2002 incident that gave rise to his second suspension in order for him to receive a FAPE during that school year and that his IEP should have been so modified prior to that time (Id.).
For the reasons set forth above, respondent has not met its burden to show that its subcommittee properly determined that the student's March 22, 2002 conduct was not a manifestation of his disability. The IDEA and the relevant federal and state regulations prohibited the student's suspension from school after April 4, 2002, unless the underlying conduct was not a manifestation of his disability (20 U.S.C. § 1415[k][A][i] and [k][A]; 34 C.F.R. § 300.520[a][i] and 300.524[a]; 8 NYCRR 201.7[c] and 201.9[c]). Based on respondent's improper manifestation determination, respondent's suspension of petitioner's son from school after that date is annulled, and respondent must expunge all reference to such suspension from its records.
Petitioner contends that respondent should have completed an FBA and developed a BIP prior to the March 22, 2002 incident and that after that incident, the CSE should have met before April 22 with respect to the FBA. An IEP should include strategies, including positive behavioral interventions, and supports to address behavior that impedes a student's learning (8 NYCRR 200.4[d][i]). The CSE's selection of the particular behavioral interventions and supports to include in the IEP should be based on appropriate evaluative information (Application of a Child with a Disability, Appeal No. 01-094). The record does not show that the disciplinary referrals the student received during the first part of the 2001-02 school year were related to behavior that impeded his learning. In December, however, petitioner's son was suspended from school for eight days for a shoving incident. The student's unauthorized class absences increased in the second and third quarters and, as indicated before, may have adversely affected his grade in English (Parent Exhibit 3). As indicated above, a CSE is required to revise an IEP when appropriate (See 20 U.S.C. § 1414[d][A][ii]), and in this case, it had an obligation to meet and discuss the student's needs when his behavior dramatically changed. However, the record is insufficient to determine whether respondent's CSE should have developed an FBA and amended the student's IEP to include appropriate behavioral interventions and supports prior to the March 22, 2002 incident.
Petitioner is correct, however, that after the March 22, 2002 incident, the CSE did not meet in a timely manner with respect to the development of an FBA. In circumstances where a school district has not previously conducted an FBA and implemented a BIP, within ten business days after first suspending or removing a student with a disability for more than ten school days in a school year, or imposing a suspension or removal that constitutes a disciplinary change in placement, a school district must convene a CSE meeting to develop an assessment plan (34 C.F.R. § 300.520[b][i]; 8 NYCRR 201.3[a]; see 64 Fed. Reg. 12,406, 12,618-19 ). Petitioner's son had been suspended/removed for more than ten school days during the 2001-02 school year as of March 26, 2002. Ten business days later was April 8, 2002. The CSE did not meet to complete an FBA and develop a BIP until April 22, 2002. Respondent argues that the CSE met "as soon as practicable" to discuss a draft FBA and BIP and suggests that the parents were not available for a timely meeting, as they requested that the CSE meeting be rescheduled. Although a CSE is required to meet "as soon as practicable" after developing an assessment plan to develop appropriate behavioral interventions (34 C.F.R. § 300.520[b]; 8 NYCRR 201.3[a]), the meeting to develop the assessment plan must be held within ten business days after the student's removal (20 U.S.C. § 1415[k][B][i]; 34 C.F.R. § 300.520[b][i]; 8 NYCRR 201.3[a]). With respect to petitioner's availability for a timely CSE meeting, I note that respondent's staff waited until after they had developed a draft of one or both of the FBA and BIP documents to attempt to schedule a CSE meeting (Transcript pp. 125-26). By this time, however, the period by which the CSE was required to have convened with respect to the FBA had elapsed. I find that the CSE meeting scheduled to discuss the FBA was untimely.
Petitioner's claim that the FBA and BIP were developed without a CSE meeting is not supported by the record. Respondent's staff drafted an FBA and BIP (District Exhibit 9; Parent Exhibit 4) prior to the April 22, 2002 CSE meeting (Transcript p. 139). The IEP Coordinator testified that they were prepared as draft material (Transcript pp. 124-26, 149, 150-52, 155), and the evidence does not demonstrate otherwise. The material was presented at the April 22, 2002 CSE meeting for discussion and review, and petitioner and her son had an opportunity to, and did, comment on it (District Exhibits 12, 15; Transcript pp. 127, 144, 151, 152). Petitioner's additional argument that the CSE did not properly develop the FBA was not raised in testimony at the hearing or in the petition and will therefore not be considered.
Petitioner contends that the FBA and BIP were inadequate. An FBA identifies the problem behavior, defines it in concrete terms, identifies the contextual factors that contribute to the behavior, and formulates 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] and 201.2[h]). A BIP is a plan that is based on the results of the FBA. As well as including a description of the problem behavior, it must include both global and specific hypotheses as to why such behavior occurs and intervention strategies to address the behavior (8 NYCRR 201.2[a]).
I find that both the FBA and BIP (District Exhibit 9) were inadequate and unsupported by the record. The record does not indicate what information about the student was considered in the preparation of the FBA. Moreover, based upon the evaluations that are in the record, it is impossible to ascertain the specific reasons for the student's problem behavior, a key element of an FBA (See 8 NYCRR 201.2[h] and 200.1[r]; see also Office of Vocational and Educational Services for Individuals with Disabilities [VESID] Policy No. 98-05 [July 1998]). Contrary to the regulations, the FBA did not adequately identify the student's problem behavior, define that behavior in concrete terms, identify the factors that contributed to the problem behavior, and develop a hypothesis setting forth the general conditions under which the behavior usually occurred. Its proffered list of "settings" and "antecedents" do not accurately define the specific circumstances under which the student's behavior caused a problem. With respect to this, the record does not show that the student engaged in negative verbal exchanges or physical altercations with everyone or that all transitions and every hallway and unstructured setting resulted in a problem. To the contrary, the record suggests that much of the student's negative behaviors involved a particular group of other students and not other students generally. Similarly, the FBA's hypothesis was inadequate. It made no attempt to explain the circumstances under which "verbal sparring" was expected to escalate into fighting. Further, contrary to what the FBA suggests, the record does not indicate that the student usually displayed verbal sparring in transitions through unstructured settings. As a result, I find that the FBA did not provide the CSE with the information that it needed in order to understand properly the student's behavior and to determine why it was occurring so that it could develop appropriate positive behavioral interventions to address that behavior as required by 8 NYCRR 201.3(a)(1).
Since a BIP must be based on the results of an FBA (8 NYCRR 201.2[a]), and since the FBA in this case was inadequate, I also find that respondent must develop a new BIP for the student subsequent to its completion of an adequate FBA (See Application of the Bd. of Educ. of the Wallkill CSD, Appeal No. 02-039). With respect to respondent's existing BIP, I note that it did not contain a global hypothesis as required by the applicable regulation (See 8 NYCRR 201.2[a]). Additionally, even though the BIP's format requested that respondent develop measurable goals, the goals in the BIP were vague and therefore not measurable. Moreover, there is insufficient information in the record to show that the proposed anger management and peer mediation intervention techniques or the limited coping strategies suggested in the BIP would be effective. I also note that the proposed mediation program was undefined and the circumstances under which it would be provided were unclear. The BIP's crisis management component assumed that petitioner's son would be able to remove himself from a problem situation. There is, however, insufficient information in the record with respect to the student for such an assumption. Finally, given the information in the record, when preparing a new BIP petitioner could consider, if feasible, minimizing the opportunity for petitioner's son to encounter particular students with whom he may have difficulty by adjusting class schedules and/or changing class locations.
Petitioner asserts that the hearing officer's determination regarding whether respondent complied with its obligation to provide a FAPE to her son was "equivocal" and that respondent did not provide her son a FAPE or properly assign him to an IAES. A board of education is required to provide a student with a disability who has been removed from his or her current placement for more than ten school days in a school year with educational services to the extent necessary to enable the student to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the student's IEP so as to be provided with a FAPE (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.121[d][i]; 8 NYCRR 201.10[c] and [d]). In circumstances where the student is removed because of behavior that has been determined not to be a manifestation of the student's disability, it is the responsibility of the CSE, or subcommittee, to determine the extent to which such services are necessary (34 C.F.R. § 300.121[d][ii]; 8 NYCRR 201.10[d]). Moreover, except in circumstances not present here1, the student is to remain in the then current educational placement when a hearing is requested to review a manifestation determination (34 C.F.R. § 300.524[c]; 8 NYCRR 201.10[a]).
Petitioner's son was initially suspended from Penfield High School on March 22, 2002 (District Exhibit 6 p. 4), and he apparently returned on June 4, 2002 (District Exhibit 4, District Exhibit 6 p. 4; Transcript p. 16). As indicated previously, respondent initially issued a notice suspending the student for five school days commencing March 22, 2002. As a result of a subsequent suspension hearing and a determination by the subcommittee that the incident that was the subject of the hearing was not a manifestation of his disability, petitioner's son remained out of school through June 3, 2002. In accordance with the above regulations, respondent was required to provide services to the extent necessary to enable the student to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the student's IEP during the period beginning March 26, 2002, which was the day after the student had been suspended or removed from school for ten school days during that school year. On March 26, 2002, respondent offered to provide the student with tutoring services for two hours a day at a BOCES setting commencing on that day (District Exhibit 6 p. 5). Petitioner rejected the offered tutoring (Transcript p. 16). The student was entitled to return to respondent's high school on April 9, 2002 when respondent received petitioner's request for an impartial hearing relative to the subcommittee's April 1, 2002 manifestation determination (34 C.F.R. § 300.524[c]; see District Exhibit 8), but he did not do so (Transcript p. 16). Respondent's 45-day suspension letter, dated April 12, 2002, advised petitioner that her son would be placed at an interim alternative setting for tutoring through June 3 (District Exhibit 4). Because of petitioner's continuing objections to the BOCES tutoring location, respondent began providing the student with home tutoring on May 6, 2002 (Transcript p. 16). The extent and subject matter of such tutoring are unclear.
The burden is on respondent to show that it provided petitioner's son with a FAPE during the relevant period. When the CSE concluded on April 1, 2002 that the student's behavior for which he was suspended in March had not been a manifestation of his disability, it did not determine what services respondent should provide to petitioner's son thereafter in order for him to appropriately progress in the general curriculum, and advance toward achieving the goals in his IEP as required by 34 C.F.R. § 300.121(d)(3)(ii) and 8 NYCRR 201.10(d). Moreover, there is nothing in the record to explain why the student did not return to school on April 9, 2002, and the record does not indicate that respondent provided the student with counseling services while he was suspended. Such services should have been provided subsequent to the CSE's April 22, 2002 determination to add individual counseling services to the student's school program (District Exhibit 15). Respondent has not met its burden to show that petitioner's son received a FAPE during the period of time that he was suspended. In light of this finding, I shall direct the CSE to review the student's program and recommend additional special education services to enable him to address any deficiency caused by respondent's failure (See Application of a Child with a Disability, Appeal No. 02-090; Application of a Child with a Disability, Appeal No. 02-004; Application of a Child with a Disability, Appeal No. 01-103; Application of a Child with a Disability, Appeal No. 99-087).
In light of my conclusions herein, it is unnecessary to address the other issues raised by petitioner.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent indicated;
IT IS FURTHER ORDERED that respondent's suspension of petitioner's son beyond April 4, 2002 is annulled and that all references to such a suspension are to be expunged from the student's records;
IT IS FURTHER ORDERED that respondent's CSE shall review and revise the student's FBA and behavioral intervention plan as set forth herein; and
IT IS FURTHER ORDERED that respondent's CSE shall review the student's program and recommend additional special education services to enable him to address any deficiency caused by respondent's failure to provide him with a FAPE during the relevant time period herein.
1 This includes circumstances where the incident involves the student carrying a weapon to school or to a school function, knowingly possessing or using illegal drugs or selling or soliciting the sale of a controlled substance while at school or a school function, or where a hearing officer orders a change in the placement of a student with a disability to an alternative educational setting after an expedited due process hearing is requested and upon a determination that the district has demonstrated that maintaining the student's current placement is substantially likely to result in injury to the student or to others (see 34 C.F.R. § 300.526[a]).