03-073

        Petitioner appeals from an impartial hearing officer's decision that respondent had not implemented a change in petitioner's son's program by removing him from class for behavioral reasons. The appeal must be sustained in part.

        I must address the procedural issues of this appeal first. Respondent asks me to excuse its delay in answering the petition. The applicable state regulations required respondent to serve its answer within ten days of the date it was served with the petition (8 NYCRR 279.5). Petitioner served the verified petition on respondent on July 24, 2003. Respondent requested an extension of time to September 19, 2003, to which petitioner did not agree. The Office of State Review (OSR) advised the parties that if respondent was not able to obtain such consent that its answer should set forth the good cause for the delay in service of the answer and ask the State Review Officer (SRO) to excuse the delay. Respondent filed a verified answer with the OSR on September 19, 2003, requesting in the answer that its delay in service be excused because reorganization occurred and delayed the process of locating and examining the relevant files in this case (see Ans., Exhibit A). Petitioner's reply was served on respondent on September 23, 2003 and filed with the OSR. In view of the relatively brief delay in serving the answer, which did not delay this decision, I will exercise my discretion to excuse respondent's delay and will accept the answer (see Application of a Child Suspected of Having a Disability, Appeal No. 03-071; see alsoApplication of a Child with a Disability, Appeal No. 01-034).

        At the time of the hearing, petitioner's son was 14 years old, in the 9th grade at respondent's School of the Future, and classified as multiply disabled. The student has a profound bilateral sensori-neural hearing loss, congenital cataracts causing him to be visually impaired, and is developmentally delayed (Exhibits 1, 2). The student's classification is not in dispute.

        There is very little information in the record about petitioner's son before 1999. In 1999, the student attended an inclusion program at the School of the Future (Dec. p. 2). The School of the Future is a general education school that has an inclusion program where special education students attend the same classes as regular education students (Transcript pp. 115, 222). The Committee on Special Education (CSE) promulgated an individualized education plan (IEP), dated July 13, 2000, that provided petitioner's son with special education teacher support services (SETSS) for the entire school day five days per week, two crisis management paraprofessionals for the entire school day five days per week, and staff development for general education staff in the areas of augmentative communications systems (Exhibit 1, see Exhibit E). The CSE also recommended that the student receive 30 minutes of individual speech-language therapy twice per week, 30 minutes of individual occupational therapy per week, 30 minutes of consultant occupational therapy per week, and 30 minutes of individual education vision services twice per week (Exhibit 1, see Exhibit E). The student's July 13, 2000 IEP also included a behavior intervention plan (BIP) reporting that he hits his head, bites his hand, bites others, sits down in the hallway, and hangs off table and chairs (Exhibit 1).

        The CSE has developed other IEPs since July 13, 2000 and petitioner has requested impartial hearings to contest them (see Dec. pp. 2-3). By Supplemental Interim Order on Pendency dated September 23, 2002, an impartial hearing officer directed respondent to provide petitioner's son with the special education program and services set forth in his July 13, 2000 IEP (Exhibit E). In a subsequent Findings of Fact and Decision dated November 4, 2002, the hearing officer ordered the CSE to reconvene to prepare a new IEP for the student and directed respondent to provide the student with an appropriate educational placement (Exhibit F). The CSE convened in January 2003 and created a new IEP for the student; however, this IEP was not implemented because the recommended school did not accept the student (Dec. p. 3). By Interim Order dated February 5, 2003, another impartial hearing officer ordered that petitioner's son's IEP be amended to include that respondent was to provide the student with instruction in American Sign Language (ASL) (Exhibit A). In a subsequent Findings of Fact and Decision dated February 26, 2003, the hearing officer found that the student's July 13, 2000 IEP was the pendency IEP and ordered the CSE to reconvene to develop "an updated valid IEP" (Exhibit B). By an Addendum Findings of Fact and Decision dated April 22, 2003, the hearing officer amended the prior February 26, 2003 Findings of Fact and Decision to reflect that the January 2003 IEP could not be implemented because respondent's recommended class was not taught by a certified ALS teacher as respondent's recommended school would not accept petitioner's son as a student (Exhibit C). The hearing officer further found the July 2000 IEP was the pendency IEP and ordered the CSE reconvene to develop the updated IEP with petitioner's cooperation (Exhibit C). I note that it appears from the student's IEP created on May 5, 2003, that the CSE intended to "change service language from ALS [to] English" (Exhibit 2).

        By letter dated March 13, 2003, petitioner requested an impartial hearing contending that respondent changed his son's placement without due process of law by removing him from class for cumulatively more than 10 school days in a school year (Pet. ¶ 9). Petitioner sought to implement his son's pendency placement at the School of the Future (Dec. p. 2). The hearing commenced on April 4, 2003, and concluded on May 21, 2003. In a decision dated June 13, 2003, the hearing officer found that the Regulations of the Commissioner define a "change in placement" as a transfer to a public school from another type of school or from a public school to another type of school, and as such, did not apply to this case (Dec. p. 10 n.3). She further found that the Commissioner's regulations expressly define a "change in program" as a change in "any one of the components of the individualized education program of a student…" (8 NYCRR 200.1[g]). The hearing officer found that petitioner's son was removed from class for behavioral reasons, and this did not constitute a change in the student's program. The hearing officer ordered that respondent provide the general education teachers with staff development in the areas of augmentative communication systems, behavior intervention strategies, and curriculum modifications.

        Petitioner contends that the hearing officer erred by concluding that respondent had not implemented a change in his son's program by removing him from class for behavioral reasons (Pet. ¶ 3) and alleges that despite his explicit request for a finding regarding "change in placement," the hearing officer did not make a finding regarding a "change in placement" (Pet. ¶ 14).

        Section 200.1(g) of the Regulations of the Commissioner of Education provides that a, "[c]hange in program means a change in any one of the components of the individualized education program of a student as described in section 200.4(d)(2) of this Part" (8 NYCRR 200.1[g]). Section 200.1(h) of the regulations provides that a, "[c]hange in placement means a transfer of a student to or from a public school, BOCES or schools enumerated in article 81, 85, 87, 88 or 89 of the Education Law or graduation from high school with a local high school or Regents diploma. For purposes of removal of a student with a disability from the student's current educational placement under Education Law section 3214, change of placement is defined in Part 201 of this Title" (8 NYCRR 200.1[h]).

        Petitioner's contention that his son's removal from classes constituted a change in program has no merit. As the student's IEPs project, he has behavioral episodes. Petitioner's son's removal from class for behavioral reasons described in his IEP does not constitute a change in program.

        Petitioner's contention that his son's removal from class constituted a change in placement without due process of law because the removal was cumulatively more than 10 school days in a school year (see Pet. ¶ 9) is based upon section 201.2(e) of the regulations, which provides:

Disciplinary change in placement means suspension or removal from a student's current educational placement that is either:

1. for more than 10 consecutive school days; or
2. for a period of 10 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 10 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.

8 NYCRR 201.2(e)(1), (2).

        There is very little in the record as to the substance of how often and how long petitioner's son was removed from class for behavioral purposes. The student's math teacher testified that the student often needed to be removed from his class for behavioral issues (Transcript p. 132) such as punching, biting, biting his hand, slapping his hands against his head, and otherwise causing damage to himself and distracting other students in the class (Transcript p. 142). Petitioner alleged at the hearing that his son was absent from math class, during the attendance period from September 5, 2002 to January 31, 2003, 25 times (Transcript p. 129). There are other allegations in the record about petitioner's son being removed from class (Transcript pp. 8, 51, 204). These suffer the same shortcomings; there is not enough in the record to determine the length of these removals. No one disputes that the student is removed from the classroom when he becomes a danger to himself and disruptive to others. Petitioner claims that these series of removals constitute a pattern and cumulate to more than 10 school days in a school year. I find that there is not enough evidence in the record to conclude that these series of removals constitute a change in placement in accordance with 8 NYCRR 201.2(e)(2).

        A board of education bears the burden of demonstrating that it has recommended and provided a free appropriate public education (FAPE) to each student attending its schools (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000]; Walczak v. Bd. of Educ., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-92). In order to prove that it has provided a FAPE to an individual student, a board of education must show (a) that it complied with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA); (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits, and (c) that the recommended program is in the least restrictive environment (LRE) appropriate to the needs of the student (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]; 8 NYCRR 200.1[cc] & 200.6[a][1]).

        The IDEA mandates that all students with disabilities be educated with nondisabled children to the maximum extent appropriate and may only be removed to a more restrictive environment when the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[a][2]; Oberti v. Bd. of Educ., 995 F.2d 1204, 1213 [3d Cir. 1993]; Briggs v. Bd. of Educ., 882 F.2d 688, 691 [2d Cir. 1989]; Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 [5th Cir. 1989]; Warton v. Bd. of Educ., 217 F. Supp.2d 261, 273 n.1 [D. Conn. 2002]; A.S. v. Norwalk Bd. of Educ., 183 F. Supp.2d 534, 538 n.3 [D. Conn. 2002]; Mavis v. Sobol, 839 F. Supp. 968, 982 n.25 [N.D.N.Y. 1994]; Application of a Child with a Disability, Appeal No. 03-009; Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 94-21). "[S]pecial education and related services must be provided in the least restrictive setting consistent with a [student's] needs" (Walczak, 142 F.3d at 122). The LRE requirement must be balanced against the requirement that each student receive an appropriate education (Briggs v. Bd. of Educ., 882 F.2d 688 [2d Cir. 1989]; Application of Bd. of Educ., Appeal No. 00-080).

        Federal courts have long recognized that IDEA's requirement that disabled students be educated in the LRE was not an issue before the Court in Rowley and consequently, the test for determining the provision of FAPE set forth therein offers little guidance for determining whether a student is being educated in the LRE (20 U.S.C. § 1412[a][5][A]; see Daniel R.R., 874 F.2d at 1045 [recognizing that the analysis in Rowley "is [ill-suited to] evaluating compliance with the LRE requirement"]; A.W. v. Northwest R-1 Sch. Dis., 813 F.2d 158, 163 n.7 [8th Cir. 1987], cert. denied, 484 U.S. 847 [1987] [FAPE analysis set forth in Rowley assumes compliance with the other requirements of IDEA]; Roncker v. Walter, 700 F.2d 1058, 1062 [6th Cir. 1983], cert. denied, 464 U.S. 864 [1983] [holding Rowley test was not dispositive of LRE requirement]; Mavis, 839 F.Supp. at 982 [Rowley test is "not particularly useful" in LRE cases]).

        The Supreme Court has not yet established a standard for evaluating whether a school district has complied with the IDEA's LRE requirement. However, several district courts within the Second Circuit have adopted the Daniel R.R./Oberti analysis for determining whether a school district has complied with IDEA's LRE mandate (see Warton, 217 F. Supp.2d 261; A.S. v. Norwalk, 183 F. Supp.2d 534; Mavis, 839 F. Supp. 968). The State Review Officers have also followed Daniel R.R./Oberti and their progeny (Application of a Child with a Disability, Appeal No. 03-009; Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 98-24; Application of a Child with a Disability, Appeal No. 98-12; Application of a Child with a Disability, Appeal No. 95-15; Application of a Child with a Disability, Appeal No. 94-27; Application of a Child with a Disability, Appeal No. 94-23; Application of a Child with a Disability, Appeal No. 94-21).

        The Daniel R.R./Oberti test for determining whether a school district has complied with the LRE requirement consists of two prongs: 1) whether the student can be educated in a regular classroom with the use of supplemental aids and services, and 2) whether the school district has mainstreamed the student to the maximum extent appropriate (Daniel R.R., 874 F.2d at 1048; Oberti 995 F.2d at 1213; Warton, 217 F. Supp.2d at 274; A.S. v. Norwalk, 183 F. Supp.2d at 542 n.8; Mavis, 839 F. Supp. at 985; Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 98-24). Several factors must be considered at each stage of the inquiry. When determining whether a student with a disability can be educated satisfactorily in a regular class with supplemental aids and services, these factors include, but are not limited to: "(1) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students in the class" (Oberti, 995 F.2d at 1217-18; see also, Daniel R.R., 874 F.2d at 1048-1049; Mavis, 839 F. Supp. at 987-990; Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 94-21).

        When comparing the educational benefits available to the student in a regular class, with appropriate supplementary aids and services, to the benefits provided in a special education class (Oberti, 995 F.2d at 1217-18), the relevant question is whether the student can achieve the goals of his IEP within a regular education program, with the assistance of supplementary aids or services (Application of a Child with a Disability, Appeal No. 00-093; Application of a Child with a Disability, Appeal No. 94-21; see also Walczak, 142 F.3d at 132-33 [holding the appropriateness of the recommended IEP is established by proof of meaningful academic and social progress]; Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120-21 [holding a more restrictive placement was required in order for student to make meaningful progress towards IEP goals]; A.S. v. Norwalk, 183 F. Supp.2d at 545-46 [holding "the appropriate yardstick is whether [the student] with appropriate supplemental aids and services, can make progress towards her IEP goals in the regular education setting."]; Mavis, 839 F. Supp. at 988 ["'[t]he relevant inquiry is whether a pupil with a handicapping condition can achieve the goal of his or her IEP within a regular education program, with the assistance of appropriate supplementary aids and services, because the IEP determines what is an appropriate education program for the pupil'" quoting Application of the Bd. of Educ. of the Schalmont Central School District, Appeal No. 90-19]).

        The record reflects petitioner's belief that his son should remain in a general education program (Transcript p. 13). The record also reflects that respondent has tried to reasonably accommodate petitioner's son by providing him with a consultant teacher and two paraprofessionals (Transcript p. 14, see Exhibit 1). However, there is not much in the record that reflects the educational benefits available to the student in the regular education program. The student's May 30, 2003 IEP reports that the student has made minimal progress in academic areas in the previous three years (Exhibit 2). There were teacher assessments and observations made that note that petitioner's son is on a pre-readiness skills instructional level in all areas (Exhibit 2). I note that the student's July 13, 2000 IEP also reports that he was on a pre-readiness instructional level in all areas (Exhibit 1). The student reportedly is non-verbal and has minimal expressive and receptive sign language skills (Exhibit 2). Placing petitioner's son in a regular education classroom with a special education teacher to teach him a significantly modified curriculum has, in my judgment, increased the degree of the student's isolation, and therefore not assisted him in developing more positive interactions with his classmates (see Application of a Child with a Disability, Appeal No. 98-012). I note that the student's May 30, 2003 IEP reports that he rarely interacts with others (Exhibit 2). On the other hand, enrolling the student in a special education classroom setting with students with similar needs and abilities could afford him the opportunity to develop both academically and socially (see Application of a Child with a Disability, Appeal No. 98-012). Students with disabilities must be suitably grouped for instructional purposes with children having similar needs and abilities in the following areas: educational achievement and learning characteristics, social development, physical development, and management needs (8 NYCRR 200.6[a][3] and 200.1[ww][3][i]).

        I am not persuaded by the record which is before me that petitioner's son could make satisfactory progress in a regular class setting. Therefore, I direct respondent's CSE to obtain current evaluations and assessments pursuant to Section 200.4(b) of the Regulations of the Commissioner of Education and promulgate an appropriate IEP based upon those current evaluations and assessments. The CSE shall conduct a functional behavioral assessment pursuant to 8 NYCRR 200.4(b)(v) and incorporate the results in IEP. The CSE shall also conduct an assessment to determine petitioner's son's form of communication and determine whether providing ALS instruction would be appropriate for the student. The CSE shall also assess whether the student's current educational placement is appropriate for the student in accordance with 8 NYCRR 200.4(b)(iv) and incorporate the results of the assessment in the student's IEP.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that within 30 days from the date of this decision, respondent shall hold a properly constituted CSE meeting and prepare an IEP in accordance with the tenor of this decision.