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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 of the City School District of the City of New York


Stroock & Stroock & Lavan, LLP, attorneys for petitioner, Penny P. Tehrani, Esq., of counsel

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Jane R. Goldberg, Esq., of counsel


          Petitioner appeals from an impartial hearing officer's decision denying his request that respondent provide his son with a residential placement. The appeal must be sustained in part.

        Preliminarily, I will address the procedural issues raised in this appeal. Respondent claims that petitioner did not properly verify the petition because petitioner does not speak or read English and that there is no indication in the petition that it was translated into Spanish for petitioner or that he understands and agrees to the contents thereof. In his reply, petitioner avers that prior to verification, the petition was orally translated for him into Spanish and that he understood the contents of the petition and agreed to the contents therein. Attached to his reply is an affidavit by an individual who states that she translated the petition for petitioner before he verified the same. Therefore, I find that the petition was properly verified and respondent's argument regarding the same is without merit.

        Respondent further contends that petitioner did not timely serve a notice of intention to seek review. State regulation requires that a notice of intention to seek review of an impartial hearing officer's (IHO) decision be served within 30 days after receipt of the decision (8 NYCRR 279.2 [b]). Petitioner received the hearing officer's decision on April 17, 2003. The 30th day after petitioner received the decision was May 17, 2003, which was a Saturday. Therefore, the notice would be timely if served on the next business day, i.e. May 19, 2003 (see Section 25-a of the General Construction Law). Petitioner served his notice of intention to seek review on May 19, 2003. Therefore, I find that petitioner's notice of intention to seek review was timely served.

        At the time of the hearing petitioner's son was 11 years old. He is classified as emotionally disturbed, which is not in dispute. Prior to the hearing, the student had been attending a 12:1:1 special class at Public School 79 in Community School District Six. In the fall of 2002, the student's class at Public School 79 was disbanded and the student was reassigned to a 12:1:1 special class in a different school in Community School District Three (Exhibit I [12/12/02]; Transcript [3/26/03] p. 12). Petitioner objected to the reassignment and requested a reevaluation. Due to confusion between the community school districts regarding which district was responsible for the student, the reevaluation was delayed. In December 2002, petitioner requested an impartial hearing seeking reevaluation and a residential placement for his son (Exhibit I [12/12/02]). The hearing commenced on December 12, 2002. At that time the IHO ordered home instruction as an interim service plan pending the outcome of the hearing (Transcript [12/12/02] p. 31; Exhibit D).

        On December 10, 2002, respondent's psychologist evaluated the student. The psychological report was not admitted into evidence at the hearing and is not part of the record before me. However, the psychologist testified at the hearing that the student scored at the mild mentally deficient range on the Wechsler Intelligence Scale for Children, 3rd Edition. His verbal scale IQ fell on the upper limits of the borderline range and the performance scale IQ fell in the mentally mild deficient range (Transcript [3/26/03] pp. 42-43). According to the Vineland Adaptive Behavior Scales, which was introduced into evidence and is part of the record, at a chronological age of 11.2, the student’s overall adaptive behavior level was 2.8 years age equivalent, his communication skills was 3.11 years age equivalent, his daily living skills was 2.11 years age equivalent and his socialization was 1.3 years age equivalent. Motor skills were not tested. The standard score for the daily living skills domain was noted to be significantly different from the norm as well as the average for the three domains tested. The student's day-to-day living skills are a weakness for the student and the report indicates that activities that target these skills may be useful and that attention to skills in this area may help to raise his overall level of adaptive behavior (Exhibit 2).

        Also on December 10, 2002, respondent conducted an educational evaluation update. According to the evaluation report, the student was 11.2 years old but did not know his birthday or the months of the year. He was unable to recite the alphabet completely and could not count higher than 49. Formal testing of reading skills on the Woodcock-Johnson Test of Achievement III, Letter-Word Identification subtest fell in the Low end of the Very Low range when compared to same age peers. The evaluation report indicates that the student was not tested in reading comprehension because he could not read words, although prior testing included a comprehension assessment (Exhibit 4 p. 3, Exhibit 1 p. 3). In reading, the student was functioning at an upper kindergarten level. Formal testing of math skills on the Woodcock-Johnson Test of Achievement III, Calculation and Applied Problems subtests fell in the Very Low range when compared with same age peers. In math skills, the student was functioning at an upper first grade level. Writing skills were reported to be poor and in need of a lot of remediation in both mechanics and content. According to the report, the student was functioning at a very low level, exhibited resistant behavior and needed a lot of refocusing. According to the evaluator, the test results indicate "little, if any, progress since [the student's] previous Educational Evaluation (05-03-02)" (Exhibit 4 p. 3).

        On December 18, 2002, the Committee on Special Education (CSE) recommended a 12:1:1 special class placement with related services in a specialized school with a full time 1:1 crisis paraprofessional. Despite petitioner's request, there is no indication in the student's proposed individualized education program (IEP) that reflects that the CSE considered residential placement (Exhibit 5 p. 8). Respondent maintained that its proposed placement is the least restrictive environment (LRE) for the student (Transcript [3/26/03] p. 14). Petitioner disagreed with the CSE's recommendation and sought residential placement.

        Evidence presented at the impartial hearing indicated that the student exhibited severe maladaptive behavior at school beginning in 2001 and continuing into 2002, such as running away from school on two occasions, running toward another student angrily with a pair of scissors, flipping classroom chairs, wrapping a cord around his own neck and having a number of severe behavioral tantrums (Exhibits G, H, I [3/26/03] and K). Petitioner's witnesses testified at the hearing that respondent's initial reaction to the student's behavior would be to call petitioner and have him come and pick his son up from school (Transcript [3/26/03] pp. 96-97, 174). Finding respondent's response to the student’s behavior inappropriate, the student's psychiatrist testified that he had suggested that respondent provide the student with a time out when he engaged in disruptive behavior and, if that did not work, recommended that respondent call EMS to have the student transported to the emergency room (Transcript [3/26/03] pp. 111, 174). The student was brought to the emergency room multiple times for aggressive, explosive and sometimes threatening actions (Exhibit C).

        The student participates in a Home Community Based Service Waiver program, which is a program run by the Department of Mental Health for severely emotionally disturbed children (Transcript [3/26/03] p. 93). As part of that program, the student is under the care of a social worker whose role is to serve as a link between petitioner, the student's psychiatrist and school representatives (Transcript [3/26/03] pp. 95, 187). The psychiatrist diagnosed the student as having bipolar disorder; oppositional defiant disorder; mixed receptive and expressive language disorder; mathematics, reading and spelling disorder; encopresis, secondary; mental retardation, mild; history of lead poisoning. He is taking various medications, including psychotropic medications (Exhibit C).

        Petitioner's educational and behavioral consultant testified that the student engages in challenging and dangerous behavior both at school and at home. He further stated that no "competent" analysis had been done to determine the cause of the student's maladaptive behavior. He suggested that the student's behavior might be chemically related and caused in part by the student's medications (Transcript [3/26/03] pp. 156, 163). He criticized respondent's failure to adequately document the behaviors, for example, he opined that the student's behavioral intervention plan (BIP) does not adequately describe the behavior or have appropriate strategies that would minimize the probability of the behavior occurring (Transcript [3/26/03] pp. 152-53). He further opined that respondent's failure to maintain adequate records has thwarted the process of finding the right psychotropic medications for the student. He recommended residential placement for the student (Transcript [3/26/03] p. 162).

        The student's psychiatrist testified that the student engaged in aggressive and hostile behavior and that he was working toward determining how much of the behavior was attributable to medical issues and the need to adjust the student's treatment. He further testified that the student needed to be in a setting where he could be evaluated daily, with a psychiatrist in coordination with a behavioral team. He opined that the student required a 24-hour structured environment to address his behavioral issues in order to enable him to improve cognitively and academically and recommended a residential placement. He further opined that, despite the student's cognitive limitations, with an intensive BIP the student has the ability to improve cognitively and academically (Transcript [3/26/03] pp. 173-177, 179, 181-182; Exhibit C).

        On April 14, 2003, the IHO issued a decision finding that the student's behavior impedes his learning. The IHO found that the student's lack of progress was not clearly attributable to an inappropriate placement, but could be due to the failure of respondent to properly evaluate the student. The IHO found that the CSE should have obtained further evaluations relating to the student's behavioral issues to determine what supports or interventions may be necessary for the student to benefit from special education. According to the IHO, respondent failed to do a functional behavioral assessment (FBA) and its BIP for the student did not provide a detailed description of the child's behavior, probable causes, and a detailed plan for remedying such behavior. According to the IHO, respondent "had no idea what triggered the child's behaviors, and what types of interventions would be effective in preventing them and remedying them (IHO decision, p. 5)." Therefore, the IHO was unwilling to move the child to the more restrictive residential placement. Given that the student was on home instruction and because the student had a history of running away from school, the IHO ordered the CSE to place the student temporarily in a 12:1:1 class in a day treatment center at a hospital so that respondent could evaluate the student in a classroom setting by conducting, among other things, classroom observations, teacher reports, an FBA and a BIP. She further ordered respondent's CSE to reconvene to review the information and reconsider its placement recommendation.

        Petitioner appeals from the IHO's decision, arguing that the record supports residential placement and that a remand to the CSE is pointless, given that respondent has allegedly failed to properly evaluate the student for years. I note that in his petition, petitioner specifically stated that he did not object to the temporary day treatment placement pending the outcome of this decision. Thus, I will presume the student has been admitted to a day treatment program. Respondent submits that the appeal should be dismissed in its entirety.

        A board of education bears the burden of demonstrating the appropriateness of the education program recommended by its CSE (Application of a Child with a Disability, Appeal No. 01-094; Application of a Child with a Disability, Appeal No. 02-032). To meet its burden, a board of education must show that the recommended program is reasonably calculated to confer educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the LRE (Application of a Child with a Disability, Appeal No. 01-094; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). Least restrictive environment means that placement of a student with a disability in special classes, separate schools or other removal from the regular educational environment occurs only when the nature or severity of the disability is such that even with the use of supplementary aids and services, education cannot be satisfactorily achieved (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]; 8 NYCRR § 200.1[cc]).

        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 (20 U.S.C. § 1414[d]; Application of a Child with a Disability, Appeal No. 02-032; Application of a Child with a Disability, 01-105). The threshold issue in this case is whether respondent's CSE had adequate information about this student at its December 18, 2002 meeting to determine an appropriate program or placement that would meet his needs in the LRE.

        What constitutes a suitable evaluation depends upon the nature of the student's disability and the nature of the change in the child's placement (Application of a Child with a Disability, Appeal No. 93-22). A CSE must accurately identify a student's needs as the first step when amending his or her IEP, which would include, where behavior is at issue, performing an FBA (Application of the Bd. of Educ. of the City Sch. Dist. of the City of Glen Cove, Appeal No. 01-060; Application of a Child with a Disability, Appeal No. 01-094). 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 student to achieve academic success (Application of a Child with a Disability, Appeal No. 93-15). To accurately assess the child's behavior, the CSE must draw 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]).

        I agree with the IHO's determination that the student's behaviors interfered with his ability to learn. However no FBA was completed. I further agree with the IHO that an FBA 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). Because an appropriate FBA was not completed, appropriate supplemental aids and services that might have allowed this student to receive the benefits of his education were never identified or provided to see if he could learn in the less restrictive 12:1:1 setting. While the IEP resulting from the December 18, 2002 meeting contained a BIP, I agree with the IHO that it is inadequate in that it is not based on the results of an FBA and fails to include an adequate description of the student's behavior, its probable causes, and a detailed plan for remedying such behavior. Therefore, I find that in the absence of the required evaluative information, the CSE acted without a sufficient basis in recommending an educational placement and program for petitioner's son (Application of the Bd. of Educ. of the Monticello Cent. Sch. Dist., Appeal No. 02-008).

        With respect to petitioner's request for a residential placement, a board of education may provide a residential placement to a child with a disability if the placement is necessary to provide special education and related services to the student (34 C.F.R. § 300.302). However, residential placement is one of the most restrictive educational placements for a student, and is appropriate under the law only when it is required for a student to benefit from his educational program (Walczak v. Florida Union Free School District, 142 F.3d 119, 122 [2d Cir. 1998]; Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1121-22 [2d Cir. 1997]; Application of the Bd. of Educ. of the Three Village Cent. Sch. Dist., Appeal No. 01-091). Because respondent failed to conduct an FBA as part of its evaluation and develop an appropriate BIP for the student, it cannot be concluded that the student was unable to benefit from an educational program in a less restrictive setting and that a residential placement is required for the student to benefit from his educational program. Although I agree with petitioner that the student's behavioral needs were not adequately evaluated, absent an appropriate evaluation, I am unable to grant petitioner the relief he has requested.

        In conducting the FBA ordered by the IHO, respondent's CSE must be sure to obtain updated information, including classroom observations, teacher reports, a social history update, educational evaluation update and psychiatric information. Based on the results of the FBA, respondent must also prepare and include in the student's IEP appropriate strategies, including positive behavioral interventions and supports to address the student's behavior (8 NYCRR 200.4[d][3][i]; Application of a Child with a Disability, Appeal No. 02-044).

        In addition, my review of the record indicates that the student appears to also have deficiencies in articulation and language skills (Exhibit 5 p. 3; Transcript pp. 42, 58), fine motor skills (Exhibit 4 p. 3) and a diagnosis of encopresis, whose etiology, whether physical or psychological is not clear from the record (Exhibit C). Therefore the CSE should also conduct an appropriate physical examination, including some assessment of the encopresis; a speech/language evaluation to determine if language processing is impaired and the extent of articulation problems; and an occupational therapy evaluation to determine if fine motor skills are impaired.

        The CSE must determine whether new evaluations are required to obtain the above noted information or whether sufficient current information can be obtained from petitioner or the student's current service providers. Petitioner submits that remanding the matter back to the CSE is ineffective in light of respondent's failure to adequately evaluate the child in the past. I remind petitioner that in the event that he disagrees with the evaluations conducted by respondent he may be able to obtain an independent evaluation at respondent's expense pursuant to the regulations of the Commissioner of Education (See, 8 NYCRR 8 NYCRR 200.5[g]).


IT IS ORDERED that, if it has not already done so and unless the parties otherwise agree, respondent conduct appropriate evaluations of this student, including those evaluations ordered in this decision, within 30 calendar days after the date of this decision.

IT IS FURTHER ORDERED that respondent's CSE shall convene to review the results of such evaluations and all other pertinent additional information within 15 calendar days thereafter, provided that the parties may jointly agree to a different time frame, and to reconsider its placement determination and recommend an appropriate placement for the student in accordance with his needs and with the terms of this decision.

Topical Index

Educational PlacementExtended Day/Home-Based/ Residential Services
Parent Appeal
Preliminary MattersPleadingsCompliance with Form
ReliefCSE Reconvene
ReliefDistrict Evaluation
Special FactorsInterfering Behaviors (FBA/BIP)