03-049

    Petitioner appeals from an impartial hearing officer’s decision that invalidated the student's individualized education program (IEP), maintained the student in his current program, ordered the district to perform additional evaluations and assessments, and to develop a new IEP after reviewing those assessments. The impartial hearing officer reserved decision on the issue of compensatory damages. The district cross-appealed the impartial hearing officer’s decision to the extent that it ordered the district to perform additional evaluations of the student at the district’s expense. The appeal must be sustained in part. The cross-appeal is dismissed.

        Petitioner's son was twelve years old at the time of the hearing and was classified as autistic. During the 2001-2002 school year the student was enrolled in a program at the Board of Cooperative Educational Services in Erie 2 (BOCES) that had a student to staff ratio of 6:1:1. Behavioral problems developed (Transcript p. 837) and on June 13, 2002 the student was suspended for five days due to his aggressive behavior (Exhibit D-31). The student was scheduled to attend the summer program at the BOCES but after a few days the student's mother chose to keep him at home.

        Because the parents no longer wanted their child to attend the BOCES program, the district's special education coordinator met with the parents and their counsel several times during the summer in order to develop an appropriate placement for the school year. The district and the parents agreed to place the child at Autistic Services, Inc. in Williamsville, NY but the program was filled and had a one year waiting list (Transcript pp. 269-274). Other placements were suggested but were rejected by the parents. The district then began to formulate an in-district program that would meet the student's intense educational and emotional needs. On September 6, 2002, an IEP was developed recommending placement of the student on home instruction for 2.5 hours per day with a special education teacher and an aide and with related services. The mother requested that the services be provided in the school rather than the home and the district agreed to the mother's request. A meeting was held on October 22, 2002, to discuss the progress the student was making and to consider modifying the program to include a proposed behavior plan and more specific goals and objectives (Transcript pp. 588-600). The parent requested an impartial hearing before a new committee on special education (CSE) meeting was successfully scheduled.

        After listening to the testimony of numerous witnesses on behalf of both parties over the course of eight days, and examining numerous exhibits, the impartial hearing officer ordered the district to conduct additional evaluations and assessments, and to have the CSE reconvene to develop a new IEP that reflects the results of those additional assessments. The hearing officer ordered that the student remain in his current placement until a new IEP could be developed and denied any compensatory damages at this time. Petitioner appealed the decision and respondent cross-appealed.

        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 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. of the City of Yonkers, 231 F.3d 96, 102 [2d Cir. 2000]; 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 Educ. Dept. Rep. 487 [1983]). To meet its burden of showing that it provided a FAPE to an individual child, a board of education must show that (1) it complied with the procedural requirements set forth in the IDEA, and (2) 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, 206-207 [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. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

        Federal and state regulations require that each student with a disability be reevaluated when conditions warrant, but at least once every three years, to determine the student's individual needs and continuing eligibility for special education (34 CFR 300.536[b]; 8 NYCRR 200.4[b][4]). A CSE’s failure to perform an adequate evaluation of a child before recommending a change in placement may afford a basis for annulling that recommendation (Appeal of a Child with a Disability, Appeal No. 00-033). In the case before me, the CSE's recommendation that the student be removed from a placement where he was educated with peers to a placement where he received individual instruction clearly constituted a significant change in the student’s placement, for which an adequate evaluation was required but never performed. The last educational evaluation was performed on March 9, 2001, and it recommended small group instruction for the student. There are no evaluations that indicate that the student can only be taught in a class where he is completely isolated from other students and that his instruction needs to be limited to 2.5 hours per day.

        When a student's behavior impedes his or her learning or that of others, a CSE must consider, when appropriate, strategies to address that behavior, including positive behavioral interventions and supports (20 U.S.C. § 1414[d][3][B][i]). The process begins with a functional behavioral assessment (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]). The district has admitted that only a partial FBA was performed in April 2002 and that it had not been completed by the time the new IEP was developed.

        The Augmented Communication Evaluation-Technical Assistive Evaluation, agreed to by the district, was in the process of being completed and was not yet ready (although an assessment had been conducted earlier by the BOCES). Additionally, the student's speech pathologist had requested an audiological evaluation which has never been performed.

        As to petitioner's contention that the student should not be maintained in the present program until the CSE develops an appropriate program, I find that the present program was agreed to by the student's mother as is indicated on the IEP dated September 6, 2002, although she did request and was granted a change in where the services were to be delivered. Paragraph (a) of 34 CFR 300.514 provides that a child with a disability must remain in his or her current educational placement during the pendency of any administrative or judicial proceeding, unless the State or local agency and the child's parents agree otherwise, except as otherwise provided by paragraph (c). I find that the student should be maintained in the placement recommended by the CSE at the September 6, 2002 CSE meeting.

        I have considered the remaining procedural arguments raised by petitioner and respondent and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer is sustained in part; and

IT IS FURTHER ORDERED that within 20 days of the date of this decision the child shall have a full and complete reevaluation including an educational developmental evaluation, a Functional Behavioral Assessment, by a cognitive behavioral therapist, the Augmented Communication Evaluation-Technical Assistive Evaluation is expected to continue, and an audiological evaluation, at the district's expense; and

IT IS FURTHER ORDERED that within 40 days after the date of this decision, the CSE shall meet and determine an appropriate IEP for this child reflecting the results of these evaluations, including if appropriate, a Behavioral Intervention Plan.

THE CROSS-APPEAL IS DISMISSED.