02-075

         Petitioner appeals from an impartial hearing officer's decision that denied her request that her son be placed at a nonpublic school for the 2002-03 school year. The appeal must be sustained in part.

        Petitioner's son was almost five years old at the time of the hearing. In a psychiatric evaluation dated February 11, 2002, he was diagnosed with oppositional defiant disorder and attention deficit hyperactivity disorder (ADHD), and described as impulsive, angry, and explosive, with a history of aggressive behavior (Exhibit 5). He has a history of noncompliance and of running from the classroom and/or therapy area (Exhibit 7; Transcript pp. 6, 12). Petitioner's son has thrown chairs (Exhibit 5), hit, scratched, and kicked peers and adults (Exhibit 3). The psychiatric evaluation reports that the child tired to pull his teacher's hair, grabbed her breast, ran away from those who were trying to stop him, and ran out of the classroom (Exhibit 5). On another day, the child had to have two people carry him from the bus; he threw chairs, and attempted to scratch his teacher (Exhibit 5). The psychiatrist also reported that he hit, kicked and scratched the speech pathologist, and bit the school psychologist (Exhibit 5). When frustrated, petitioner's son will walk out of the classroom (Exhibit 3). The record also indicates that the child has participated in a number of educational programs and that he has difficulty in transitioning from activity to activity and from provider to provider (Transcript pp. 12-13). The child's classification as emotionally disturbed (Exhibit 13) is not in dispute.

        The Stanford-Binet Intelligence Scale, IV Edition, was administered on April 29, 2001 and petitioner's son achieved a test composite score of 86, which is in the low average range of general intelligence (Exhibit 6). The child's academic skills are at the pre-kindergarten level (Exhibit 13). He is learning to identify all of the letters of the alphabet and to recognize his name and his classmates' names (Exhibit 13). He has speech and language deficits, poor letter recognition and poor counting skills (see Exhibit 13). Petitioner's son has management needs that impede his learning capabilities (Exhibit 8). It is noted in an educational report dated February 6, 2002 that the child's low frustration tolerance, aggression, and impulsivity prevent the child from learning (Exhibit 3).

        In April 2001, petitioner's son was referred to the Committee on Preschool Special Education (CPSE) (Transcript p. 6). For the 2001-02 school year, the Committee on Special Education (CSE) recommended that the student be placed in a special class in an integrated setting with a student to staff ratio of 15:1+1 and that he be assigned a 1:1 paraprofessional (Transcript p. 7; seeExhibit 7). The CPSE also recommended he receive group counseling once a week with a student to staff ratio of 2:1, individual counseling once a week, and individual speech therapy twice a week (Transcript p. 7). By February 2002, the child's behavior became more violent and disruptive to the other children in the program (Transcript p. 9). He was hitting the teacher, psychologist, and other children in the classroom (Transcript p. 9). The principle believed that there needed to be a change in petitioner's son program because he was a danger to himself and to other children in the program (Transcript p. 9). By March 2002, he was placed in a more restrictive half-day program with a student to staff class ratio of 12:1+2 (Transcript p. 11). He also continued to receive services from his 1:1 paraprofessional (Transcript p. 11). In addition, petitioner's son was to receive ten hours of special education itinerant teacher (SEIT) services at home to supplement the half-day program, but respondent was not able to provide the SEIT services (Transcript p. 11). On June 18, 2002, the CPSE held a review and determined that the child needed a more therapeutic environment because his behavior had deteriorated and he was running out of the classroom more often (Transcript p. 12). For the summer of 2002, the CPSE recommended that the child attend a preschool class at the Northside Therapeutic Early Childhood Center (Northside) with a student to staff class ratio of 12:1+2. The CPSE also recommended a 1:1 paraprofessional, counseling, and speech services (Transcript pp. 13-14).

        Because petitioner's son had reached the age to transition to a school-age program, the CSE met on May 31, 2002 to recommend a program and placement for the 2002-03 school year (Transcript p. 108; Exhibit 13). The CSE recommended that the child be placed in a special class in a specialized public school with a student to staff ratio of 8:1+1, and that he be assigned a 1:1 paraprofessional (Exhibit 13). The CSE also recommended that the child receive two 30-minute sessions of group speech-language therapy per week with a student to staff ratio of 3:1, 30 minutes of group counseling per week in a 3:1 setting, and 30 minutes of individual counseling per week (Exhibits 13, 2). The recommended class was a part of an intensive management unit with students having similar behaviors (Transcript pp. 43-47).

        Petitioner requested an impartial hearing to determine the appropriateness of respondent's CSE's recommendation. The hearing was held on June 21, 2002. In a decision dated July 19, 2002, the hearing officer found that respondent's CSE recommended an appropriate program and placement for petitioner's son. Petitioner contends that the hearing officer erred by concluding that respondent's CSE offered an appropriate program and placement and requests that her son attend Northside for the 2002-03 school year, by obtaining a Nickerson letter, or in the alternative by having a new hearing to determine the appropriateness of Northside as a placement.

        The purpose behind the Individuals with Disabilities Education Act (IDEA) is to ensure that children with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; see Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2d Cir. 1987]). A FAPE consists of specialized education and related services embodied in an individualized education program (IEP) (34 C.F.R. § 300.13). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Bd. of Educ., 142 F.3d 119, 122 [2d Cir. 1988]; Application of a Child with a Disability, Appeal No. 02-029). To meet its burden of showing that it provided a FAPE to an individual child, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 US 176, 206-07 [1982]). The recommended program must also be provided in the least restrictive environment (LRE) (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 child'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. 02-014; Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

        Petitioner contends that the hearing officer erred by concluding that respondent's CSE offered an appropriate program for her son. More specifically, petitioner claims that the IEP developed by the CSE for the 2002-03 school year failed to adequately identify the child's needs, that the services included in the IEP failed to appropriately address those needs, and that the specific placement offered by the CSE was inappropriate to meet the child's needs. Petitioner asserts that the building assigned is inappropriate because it would not meet her son's management needs or guard against him running out of the classroom and the building (Transcript pp. 28-31, 83-84).

        Respondent's unit coordinator (Transcript p. 37) described the type of program being offered to petitioner's son and the type of behavior intervention/modification plan that would be used with him (Transcript pp. 43-47). For example, the recommended 8:1+1 class that was offered to petitioner's son had other children with emotional and behavioral difficulties, which at the time of the hearing included one child who was a "constant runner" (Transcript pp. 46-47). Petitioner's son's behavior intervention plan which addresses the child's behavior that impedes his learning (see8 NYCRR 200.4[3][i]) has appropriately identified him as a child who leaves the classroom and/or therapy area (Exhibit 13).

        The CSE must conduct a functional behavioral assessment (FBA)¹ for a child whose behavior impedes his or her learning (8 NYCRR 200.4[b][1][v]). The CSE must consider strategies, including positive behavior, in the case of a child whose behavior impedes his or her learning (8 NYCRR 200.4 [d][3][i]). The CSE has not conducted an adequate FBA to determine why petitioner's son engages in behavior that impedes his learning and how the child's behavior relates to his environment (see Exhibit 13; 8 NYCRR 200.1[r], 200.4[b][1][v]). The behavior intervention plan included in the child's IEP that was proposed by the CSE listed only one strategy to change the child's current behavior, i.e. the "token economy system" (Exhibit 13); however, in a psychological report dated January 29, 2002, it was reported that a token economy system had been implemented previously and had not been working well because the child responded with anger when the tokens were presented (Exhibit 7). It was also reported in the psychological report that when petitioner's son was praised for socially acceptable and compliant behaviors it was often met with "shut up" (Exhibit 7). In addition, it was reported that when limits were set on petitioner's son leaving the classroom, his aggressive behavior increased over time (Exhibit 7). Therefore, I direct the CSE to conduct an FBA to ascertain petitioner's son's behavioral impediments and how his behavior relates to his environment (see 8 NYCRR 200.4[b][1][v]). The child's behavior clearly impedes his learning; therefore, his IEP should reflect the inclusion of positive behavioral interventions that address the child's needs in this area (see 8 NYCRR 200.4 [d][3][i]).

        Petitioner seeks a "Nickerson letter" (see Jose P. v. Ambach, No. 79 C 270, 3 EHLR 553:298 [E.D.N.Y. January 5, 1982]) authorizing her to place her child at a private school for the 2002-03 school year. In Jose P., the Board of Education of the City School District of the City of New York was found to have failed to act in a timely manner in its evaluation and/or placement of thousands of children with disabilities. Judge Nickerson ordered the board to issue letters to the parents of each eligible child who had not been placed within 60 days of referral or evaluated within 30 days of referral, advising the parents of their right to place their child in an approved nonpublic school at public expense (Jose P., 79 C 270, EHLR 553:303, Appendix, Exhibit 1). I must note that the remedy of the "Nickerson letter" was intended to address the situation in which the child had been referred to the CSE and the child had not been evaluated within 30 days or placed within 60 days of referral (Application of a Child with a Disability, Appeal No. 00-092). Petitioner does not assert that her son was evaluated or offered a placement in an untimely manner. Accordingly, I find petitioner's reliance on Jose P. is misplaced, and she is not entitled to the requested relief.

        Petitioner has also requested a new hearing to show that Northside appropriately addressed her son's needs and that equitable considerations favor tuition reimbursement (see Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). However, at the hearing petitioner requested a determination as to the appropriateness of the CSE's recommended placement for the 2002-03 school year, not tuition reimbursement. Petitioner could have requested tuition reimbursement for a placement at Northside had her son attended that school during the 2002-03 school year. There is, however, no indication in the record or in the pleadings in this appeal that the child attended Northside during the 2002-03 school year. Moreover, petitioner was not precluded from presenting evidence at the hearing regarding the appropriateness of Northside for that year. If petitioner wished to be reimbursed for the costs of her son's attendance at Northside, she should have raised that claim and introduced the necessary evidence at the hearing from which she now appeals. Upon the record before me, there is no basis upon which to order a hearing regarding whether Northside would have been an appropriate placement for petitioner's son for the 2002-03 school year (see Application of a Child with a Disability, Appeal No. 03-003).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED, unless the parties otherwise agree, that within 30 days of the date of this decision, and if it has not done so subsequent to the filing of this appeal, respondent's CSE shall conduct an FBA of petitioner's son, develop an appropriate behavior intervention plan for the child and provide an appropriate placement in the LRE consistent with the child's management needs.