03-075

       Petitioner, the Board of Education of the Hyde Park Central School District, appeals from a hearing officer's decision that its Committee on Special Education (CSE) failed to conduct a manifestation determination in a timely manner and improperly determined that respondents' son's behavior was not a manifestation of his disability. Petitioner also appeals from the hearing officer's finding that the CSE failed to develop a behavioral assessment plan and to determine an appropriate interim alternative educational setting (IAES) during the student's suspension from school and petitioner appeals the hearing officer's award of compensatory education. The appeal must be sustained in part.

        At the time of the hearing, in May 2003, respondents' son was 15 years old and in the ninth grade at Roosevelt High School (Transcript p. 22, Exhibit 12). There is no dispute about his classification of other health impaired (OHI) or his individualized education program (IEP) for the 2002-03 school year requiring four periods daily in a special class with a 15:1 student teacher ratio for English, math, social studies and science, group counseling for thirty minutes every six days; and extended time, special location and directions read on tests (Exhibit 12). The student's IEP indicates that he is expected to obtain a high school diploma but notes that his "weak organizational skills" and "inability to remain focused within the regular education environment affect his ability to progress independent of support" (Exhibit 12). To address these needs he requires program modifications and supports that include "refocusing and redirection," studying guides and modified classroom tests (Exhibit 12). He is diagnosed with an attention deficit hyperactivity disorder (ADHD), symptoms of depression for which he is prescribed medication, and asthma (Exhibit 12). He was diagnosed with ADHD in 1994, prescribed Ritalin, and classified as OHI while in first grade "when he was experiencing difficulty with letter recognition, sound symbol association and written language skills" (Exhibit 12A). In 2000, he was hospitalized for five weeks and attended an intensive day treatment program for 30 days for depression, mood lability, aggression and impulsivity, and received diagnoses of ADHD, oppositional defiant disorder (ODD) and depressive disorder. (Exhibit 12A).

        For the past three years respondents' son has attended a teen program at the Ramapo Anchorage Camp in Rhinebeck, New York, a year-round camping facility for children with emotional, learning and behavioral problems (Transcript pp. 256-257). He met the acceptance criteria based on having ADHD and ODD. He also had occasional temper issues, but was always able to gather and control himself quickly (Transcript pp. 256-257). When respondents' son attended the camp on the weekend prior to November 18, 2002, he brought a folding knife along, thinking it might be needed because he had been told they would be building shelters in the woods (Transcript pp. 258-259, 268). He asked one of the counselors to hold onto the knife for him and, at the end of the weekend, she returned it to him and he put it in his backpack, along with his school books and homework (Transcript pp. 268-269). He used the same backpack for school and camp because the counselors helped him with his homework as part of the program (Transcript p. 259). Upon returning home on Sunday, November 17, 2002, respondents' son tossed the backpack in his bedroom and did not open it again until the next day in school (Transcript pp. 285-286).

        On Monday, November 18, 2002, respondents' son went to his school locker, which he shared with another student, during fourth period and discovered his wallet with $20 was missing. He went to the assistant principal's office during fifth period to report his wallet stolen (Transcript pp. 223-224). During the seventh period, the student's classroom teacher received a telephone call from the assistant principal's office directing him to return to the office. The assistant principal questioned respondents' son with another student who was in possession of the missing money as well as a knife that he said he took from the same locker (Exhibit C). Respondents' son admitted the knife belonged to him and stated that he forgot to take it out of his backpack after returning from camp (Exhibits C, DD). Respondents' son was then brought to see the principal (Exhibit C).

        On November 19, 2002, respondents were notified by the principal that their son was suspended from school from November 19 through 25, 2002, a total of five school days for endangering the health, safety and welfare of himself and others by bringing a knife onto school grounds (Exhibit 1). The letter also indicated that the principal was recommending to the superintendent that a longer period of suspension be considered and a hearing held for that purpose. During his suspension, which ultimately continued through January 31, 2003, respondents' son was assigned to attend a two-hour after-school program with a special education teacher three days a week and teaching assistants for the other two days (Transcript pp. 153-154, 158, 163-164, 174, 177-178). The after-school program was held from 4:00 p.m. to 6:00 p.m. and transportation was provided by respondents, who dropped their son off at the door of Roosevelt High School (Transcript p. 156). By letter dated November 22, 2002, respondents were notified by the superintendent that a suspension hearing pursuant to Education Law §3214 would be held on December 2, 2002 (Exhibit 2). The §3214 hearing commenced on December 2, 2002, but was continued until December 16, 2002, to allow respondents time to obtain counsel (Exhibit C). The hearing was bifurcated to consider first the question of guilt. On December 16, 2002, the hearing officer issued a Report and Recommendation finding respondents' son guilty of bringing a knife with a 3½ inch blade to school on November 18, 2002, and recommending an additional five-day suspension be imposed, as well as referring the matter to the CSE to conduct a manifestation determination review "prior to expiration of the initial suspension period" (Exhibits 8, X). The report also recommended that respondents' son attend alternative instruction and that petitioner continue to provide IEP services (Exhibits 8, X). By letter dated December 17, 2002, respondents were informed that the superintendent adopted those findings and recommendations and expected "the steps outlined in the document to be followed" (Exhibit 9).

        By letter dated December 20, 2002, the last day before the winter break, respondents were asked to contact the assistant superintendent to reschedule a meeting of the CSE to conduct a manifestation determination, to consider whether the student's disability impaired his ability to understand the impact and consequences of his conduct or his ability to control his behavior (Exhibit 10; Transcript pp. 76-78). The letter indicated that the CSE meeting had originally been scheduled for December 17, 2002, but was postponed because no one representing the student was present (Exhibit 10). A letter dated December 11, 2002, announcing the December 17, 2002 CSE meeting was apparently sent to the wrong address and returned to petitioner undelivered, without ever having reached respondents (Exhibit Y). The CSE chairperson testified that he attempted to contact respondents by telephone following the abbreviated December 17, 2002 meeting and left a message on an answering machine (Transcript pp. 74-77). Respondents deny receiving any notice of a rescheduled manifestation determination meeting. By letter dated January 8, 2003, respondents' counsel informed the superintendent that the student was advised by counsel to return to classes, unless he was advised otherwise by petitioner, pending the outcome of the manifestation determination. The letter urged an expeditious scheduling and conclusion of the manifestation determination process and requested that a CSE representative contact respondents' attorney to schedule a mutually agreeable date to accommodate a physician's schedule because medical testimony was anticipated (Exhibit U). Sometime after school reopened on January 6, 2003 following the winter break, respondents contacted the CSE chairperson (Transcript pp. 77-80).

        The CSE met on January 13, 2003 to conduct the manifestation determination. Present at the meeting were the CSE chairperson, school psychologist, regular education teacher, special education teacher, respondents and the student (Exhibit 11). Respondents' counsel was unable to attend the meeting and no expert medical witness appeared on respondents' behalf. The CSE chairperson testified that respondents stated no objection at the meeting to going forward without representation and actively participated (Transcript pp. 83-84). However, in a subsequent letter to the superintendent, dated January 28, 2003, their counsel complained that they were deprived of the opportunity to be represented and to meaningfully participate in the January 13, 2003 meeting (Exhibit Q).

        Following the January 13, 2003 meeting, on that same day, the CSE chairperson issued a report of the manifestation determination review. The CSE chairperson testified that he shared the determination with respondents that day and they did not indicate disagreement with it (Transcript pp. 125-126). Respondents and their counsel deny receiving a copy (Exhibits 11, Q). The report indicated that the CSE reviewed all current evaluations and diagnostic results, information supplied by respondents, the IEP and placement information (Exhibit 11). It stated that respondents and their son "acknowledged his guilt and his awareness of it and school rules" and presented "recent reports both from the weekend camp that he had attended, as well as his treating physician. They see this as a recent isolated event and occurring from an act of 'forgetfulness' rather than any affective or behavioral concerns" (Exhibit 11). The report indicates that the CSE was in agreement that the student's IEP placement and services were appropriate and followed on the date of the incident (Exhibit 11). The report went on to state the CSE determined that "his behavior does not reflect his disability nor is a manifestation of it, as presently understood" (Exhibit 11). The report concluded with a recommendation that respondents' son "continue his current disciplinary status until a final determination is made by the superintendent" (Exhibit 11).

        Following receipt of the manifestation determination review report, without reconvening the suspension hearing,¹ the hearing officer issued a Report and Recommendations on January 16, 2003, recommending "that the CSE effect a change in placement to an appropriate IAES, to be determined by the CSE, for forty-five days" (Exhibit 14). The hearing officer for the suspension hearing reported that he was advised that respondents' son had no prior disciplinary record but decided that bringing a knife to school warranted a significant period of suspension as a penalty. The superintendent adopted the Report and Recommendations and endorsed it with a letter dated January 16, 2003 to respondents (Exhibit 15).

        On January 21, 2003, a letter from the superintendent's office inquired of the CSE chairperson when and where the IAES would take place (Exhibit 16). A notice dated January 24, 2003 invited respondents to participate in a CSE meeting on January 31, 2003. On January 28, 2003, respondents' counsel advised the superintendent in writing that there had been "no written determination from the CSE, nor have they seen any documentation that purports to be disposition of the manifestation issue," and requested an impartial hearing for the purpose of contesting the CSE's action and inactions regarding the manifestation determination review (Exhibit Q). On January 31, 2003, a subcommittee of the CSE met for the purpose of transitioning respondents' son back into school but no written document set forth the results or recommendations from that meeting (Transcript pp. 153-158, 182-184). Upon the conclusion of the January 31, 2003 CSE subcommittee meeting, respondents' son was immediately returned to his regular 2002-03 IEP placement, the ninth grade program at Roosevelt High School. When the parties' settlement attempts were unsuccessful, respondents' request for an impartial hearing was reinstated on March 26, 2003.

        The impartial hearing was held on May 9 and 12, 2003. On July 9, 2003, the hearing officer rendered his decision, finding numerous procedural violations, many related to the lack of timely CSE involvement in the discipline process. The hearing officer also found that the CSE never met to develop an assessment plan to address the student's behavior. Further, the hearing officer found that the CSE's manifestation determination review was improper and the information before it supported a finding that the student's behavior was a manifestation of his disability. The hearing officer also decided that the CSE failed to develop an appropriate IAES for respondents' son and to revise his IEP accordingly. Finding that respondents' son attended only 26 of the 42 two- hour after-school sessions offered during the suspension, the hearing officer concluded that petitioner failed to notify respondents of his lack of attendance, thereby neglecting to implement its attendance requirements for a student of compulsory school age. The hearing officer ordered petitioner to provide 52 hours of additional educational services corresponding to his calculation of the number of missed after-school sessions and 7 individual or group counseling sessions to focus on the behavior which led to the suspension and strategies to prevent further incidents.

        Petitioner appeals from the hearing officer's decision, asserting that any procedural errors were minor and do not warrant the award of additional services. Petitioner argues that the CSE's January 13, 2003 manifestation determination review was timely because it was conducted within ten school days of December 17, 2002 when the superintendent adopted the hearing decision regarding the student's guilt. Petitioner argues that the CSE was prepared to meet on December 2, 2002, within ten days of the original suspension, and that respondents waived any claim of untimeliness by requesting adjournments to retain and accommodate their counsel. Petitioner contends the CSE applied the proper criteria in conducting its manifestation determination review. Petitioner argues that it properly found the IEP to be appropriate and the student's ADHD not to impair his understanding of the impact and consequences of bringing a knife onto school property, since his disability may have impacted his organizational skills but not his ability to alert school officials once he realized the knife's presence in his backpack. Petitioner contends that respondents' claims regarding the CSE's failure to develop an appropriate IAES became moot on January 31, 2003, once the student returned to his IEP placement. Even if not moot, petitioner argues that the harm was de minimus because the CSE reviewed his after-school placement on January 13 and a subcommittee of the CSE ultimately found it to be appropriate on January 31, 2003. Petitioner contends that the impartial hearing officer erred in awarding compensatory education because respondents' son was not excluded from school or denied appropriate services for an extended period of time. Petitioner argues that respondents' son was removed from his IEP placement for not more than 37 school days; was provided a two-hour after-school program with access to a special education teacher to work on his IEP goals and objectives but that he refused to attend 22 of those 37 sessions.

        Because a student with a disability may be removed to an IAES for up to 45 calendar days if a student carries a weapon to school, regardless of whether the behavior was caused by the disability (8 NYCRR §201.9 [c][3],[5]), I will first consider issues regarding the after-school program alleged by petitioner to have been an IAES. An IAES must be determined by the CSE before the end of the tenth consecutive day of removal because the IAES must be in effect by the 11th day and may continue for up to 45 calendar days if a student carries a weapon to school (20 U.S.C. §1415[k][1][A][ii][I], [k][3][A]; 34 C.F.R. §300.520[b][l]; §300.522; Fed. Reg./Vol. 64, No. 48/March 12, 1999/p. 12620; 8 NYCRR §201.7[e]). The hearing officer found that petitioner violated these procedures because the CSE never met to determine the setting and services to be provided in an IAES. I agree. The CSE's subcommittee meeting on January 31, 2003, the final day of the student's suspension, was insufficient for the purpose of determining an IAES. There is no provision in law for retroactive determination of an IAES. Further, there is no document in the hearing record setting forth any recommendation or action taken by the CSE subcommittee on January 31, 2003. Petitioner argues that any claims arising from the CSE's failure to determine an appropriate IAES, or to revise the IEP to reflect the interim placement and services, became moot when the student returned to his IEP placement after the January 31, 2003 CSE subcommittee meeting. I find this argument to be without merit. It would be impossible to obtain meaningful review of the appropriateness of an IAES placement, which by definition is of short duration, if the mootness doctrine were strictly applied (Application of a Child with a Disability, Appeal No 02-042). Further, an issue need not be considered moot where, as here, the conduct complained of is capable of repetition yet evading review (Honig v. Doe, 484 U.S. at 323 [1988]; Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036 [5th Cir. 1989]). Therefore, I find that claims raised here regarding the appropriateness of the purported IAES placement are not moot, and further, I find that the CSE's subcommittee meeting on January 31, 2003 was untimely for purposes of determining an appropriate IAES.

        With regard to the after-school program, respondents' son was provided the minimal alternative instruction required by Education Law §3214 for a suspended student of compulsory school age. Beginning on the 11th day of his suspension, however, respondents' son had a right to a free appropriate public education (FAPE), i.e. instructional services determined by the CSE to be necessary for him to progress in his general curriculum courses and to advance toward achieving his IEP goals. In order to continue his suspension for an additional 45 days, petitioner was required to convene its CSE and to place him in an IAES determined by its CSE. The IAES would have had to implement the services and modifications in the student's IEP that would have enabled him to meet his IEP goals and would have provided FAPE, and would have allowed him to progress in the general curriculum and to address the behavior that was the subject of the disciplinary action. This petitioner failed to do. Therefore, although there are specific provisions in the IDEA for removing students with disabilities who bring weapons to school, i.e. a 45-day IAES pursuant to 20 U.S. C. §1415(k)(1), I must agree with the hearing officer that petitioner's after-school program did not constitute an IAES as defined by the IDEA (Application of the Bd. of Educ. of the Onteora Cent. Sch. Dist., Appeal No. 98-83).

        Federal regulations provide that, when a student is removed to an IAES, that the new placement must be determined by the IEP team and:

(1) Be selected so as to enable the child to continue to progress in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the child's current IEP, that will enable the child to meet the goals set out in that IEP, and

(2) Include services and modifications to address the behavior (which forms the basis for placement in the IAES) that are designed to prevent the behavior from recurring (34 C.F.R. §300.522[b]; see, 8 § 201.10[d]).

Here, the student's current IEP at the time of his suspension was the IEP developed at the CSE meeting held on March 13, 2002 (Exhibit 12), and the services to which the student was entitled in an IAES were those set forth in that IEP.

        Respondents' son was placed in an after-school program from November 19, 2002 until January 31, 2003 (Exhibit 24). During that time period, there were 37 school days in which respondents' son was assigned to a two-hour daily after-school program at the high school, where he had access to a special education teacher, but was not provided counseling services required by his IEP (Exhibits 12, 24). The student attended 15 of the 37 sessions (Exhibit 24). There is evidence in the record that his lack of attendance may have been caused by his disability (Transcript pp. 237-238, 275-277). Indeed, one of the objectives in the student's IEP addresses his use of truancy as a self-destructive method to cope with emotional stress and difficult life situations (Exhibit 12). Moreover, there is evidence in the record that the suspension, the student's first disciplinary action, caused him emotional stress that served as a predictor for his subsequent nonattendance (Transcript pp. 275-277). I am not persuaded that the student's nonattendance was caused entirely by his disability and concur with the hearing officer that the student had a responsibility to attend his assigned program and to inform school authorities when a problem with the placement arose. However, the student's poor judgment does not excuse petitioner's failure to notify respondents of his absences, consistent with its obligation to implement a comprehensive attendance policy (8 NYCRR §104.1). Providing timely notice to parents is particularly important for an IDEA-eligible student such as respondents' son, whose IEP addressed truancy and who was being offered less than his full IEP services. The CSE chairperson testified that she recalled the student's father "being very surprised" to learn on January 13, 2003 that his son, after being dropped off daily at the school, since November 19, 2002, would walk around or watch a basketball game rather than attend the program (Transcript p. 156). It is clear that the student's attendance improved markedly after his parents were informed of the problem on January 13, 2003 (Transcript pp. 281-282; Exhibit 24). The record supports a finding that petitioner's failure to notify respondents of their son's nonattendance until January 13, 2003 contributed to the student's truancy. Petitioner should have taken steps promptly to address the student's nonattendance and to implement his IEP to target this problem behavior. In addition, petitioner should have complied with the legal requirements that the CSE convene and determine an IAES prior to the 11th day of his suspension when the problem could have been averted.

        I will next consider the related issue of petitioner's obligation to convene the CSE to address the behavior that resulted in the student's suspension. Either before or not later than ten business days after removing the child for more than ten consecutive school days, the CSE must convene to develop an assessment plan to address the behavior that resulted in the suspension, if no functional behavioral assessment had previously been done (20 U.S.C. §1415[k][l][B][I; 34 C.F.R. §300.520[b][l][i]; 8 NYCRR §201.3[a][1]). As soon as practicable after developing the plan, and completing the assessments required by the plan, the CSE must meet to develop appropriate behavioral interventions to address the behavior that resulted in the removal (34 C.F.R. §300.520[b][2]; 8 NYCRR §201.3[a][1]). The hearing officer found that petitioner violated these procedures because the CSE never met to develop the required assessment plan to address the behavior that resulted in the suspension. I concur and find that petitioner failed to timely convene the CSE to develop an assessment plan and implement appropriate interventions to address the behavior that resulted in suspension of respondents' son (Application of a Child with a Disability, Appeal No. 02-064).

        I will now consider petitioner's appeal from the hearing officer's decision that the CSE improperly determined that the student's behavior was not a manifestation of his disability. The hearing officer found that the information before the CSE, including reports from the student's treating psychiatrist, the camp director, the school psychologist and the criteria of the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) for attention deficit hyperactivity disorder provided "adequate and substantial support" to determine that the student's behavior was a manifestation of his disability. The hearing officer found that the CSE should have recommended to the superintendent not to impose the suspension, noting that petitioner's code of conduct states that "a student identified as having a disability shall not be disciplined for behavior related to his/her disability."

        The CSE may determine that the student's behavior was not a manifestation of his disability only if the CSE :

(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; and

(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][4][C]; 34 C.F.R. §300.523[c]; 8 NYCRR §201.4[c]). If, in the course of its review, the CSE determines that any of the three standards in paragraph (ii) above were not met, the behavior must be considered a manifestation of the student's disability (34 C.F.R. §300.523[d]; 8 NYCRR §201.4[d]).

        A written report summarizing the January 13, 2003 manifestation determination review, indicated that the CSE received "all relevant information" relating to the behavior subject to the disciplinary action of bringing a knife onto school grounds, "including all current evaluations and diagnostic results, information supplied by the parent, the IEP and placement information" (Exhibit 11). Information provided by respondents "from the weekend camp he had attended, as well as his treating physician" was specifically identified as considered by the CSE (Exhibit 11). The report's author who chaired the January 13, 2003 meeting testified that the CSE reviewed the IEP and the June 15, 2000 psychological evaluation (Transcript pp. 82-87).

        With regard to the first manifestation determination standard, the CSE determined that the current IEP and services were appropriate and that all aspects of that program were "functioning" and followed on the date of the incident (Exhibit 11).

        The CSE next appeared to collapse the second and third standards, determining that the student's "behavior did not reflect his disability nor is a manifestation if it, as presently understood," while nevertheless acknowledging agreement that the behavior was an act of "forgetfulness" (Exhibit 11).

        The IEP considered by the CSE identified respondents' son's disability as OHI, based upon diagnoses of ADHD and depression and referred to his "inability to remain focused within the regular education environment," and "weak organizational skills" for which he was prescribed medication (Exhibit 12). The IEP included social/emotional goals for improving social skills, behavior, self-awareness and decision-making skills (Exhibit 12). The June 15, 2000 psychological report identified respondents' son's cognitive weaknesses in "processing speed, attention to details, as well as sequencing ability while integrating his understanding of social situations" (Exhibit 12A). The psychological report also incorporated findings from a psychiatric assessment that included diagnoses of ADHD, oppositional defiant disorder and depressive disorder (Exhibit 12A). Respondents' son's treating psychiatrist, whose assessment was relied upon in the psychological report, testified that her ADHD diagnoses of the student was based on symptoms of "inattention, impulsivity and hyperactivity," with "inattention" being difficulty "focusing, finishing tasks, forgetfulness, disorganization" (Transcript pp. 232-233). She testified that the specific behavior that resulted in respondents' son's suspension – placing the knife in his backpack, forgetting it was there, and bringing the backpack to school the next day – was consistent with the symptomology, including forgetfulness, that led her to diagnose him as having ADHD (Transcript pp. 231-233). Her letter dated December 11, 2002, considered by the CSE at the manifestation determination, stated that "it is quite conceivable that he simply forgot that he had placed a knife in his backpack after a weekend activity and inadvertently brought it to school" (Exhibit Z). Also available to the CSE was the December 10, 2002 letter from the associate camp director who stated that respondents' son placed the knife in his backpack on November 17, 2002 when departing from camp. The CSE chair testified that his understanding of the symptomology of ADHD is consistent with the DSM-IV, including among the symptoms of inattention, that an individual with this disorder "is often forgetful in daily activities" (Transcript p. 102; Exhibit A). The CSE chair also testified that the CSE agreed that the student's forgetfulness, a symptom of his ADHD, caused him to bring the knife to school inadvertently (Transcript pp. 104-105). I find this persuasive evidence that the student's disability impaired his ability to control the behavior subject to disciplinary action and, therefore, required a finding that the behavior must be considered a manifestation of his disability (34 C.F.R. §300.523[d]; 8 NYCRR §201.4[d]).

        Petitioner's argument, based on testimony by the CSE chair (Transcript p. 106), that the CSE was correct in finding no manifestation since the student's disability did not adversely affect his ability to alert school officials and surrender the knife once he realized his knife's presence in his backpack, is not persuasive. First, the relevant behavior that led to the suspension was bringing the knife to school, which the CSE found was caused by his disability (Exhibit 1). Secondly, the record reflects that the student was not aware of bringing the knife to school and did not recall the whereabouts of the knife until after it was stolen and no longer in his possession to surrender (Transcript p. 269). Based on the record before me, I find that petitioner failed to meet its burden of showing that the student's behavior was not a manifestation of his disability. There was sufficient information before the CSE and the hearing officer to conclude that the student's disability caused him to forget the knife was in his backpack, thereby impairing his ability to control the behavior that led to his suspension, i.e., bringing the backpack to school the following day with the knife still inside.

        Because the CSE should have determined that the third standard for the manifestation determination review was not met, it was required to find that the student's behavior was a manifestation of his disability (34 C.F.R. §300.523[d]; 8 NYCRR §201.4[d]). The CSE improperly reached the conclusion that the behavior was not a manifestation of the student's disability.

        The hearing officer found that the CSE did not conduct a timely manifestation determination review because it was not completed prior to expiration of the initial ten day suspension period. The hearing officer found that petitioner failed to comply with its own findings and recommendations adopted by the superintendent on December 17, 2002, requiring completion of the manifestation determination review within that timeframe.² The hearing officer relied on federal law requiring notice to parents of any decision to remove a child from his IEP placement and of procedural safeguards as described in 34 C.F.R. §300.504 when the removal constitutes a "change of placement" for disciplinary reasons. The hearing officer also based his decision on the federal regulation requiring a meeting of the CSE to conduct a manifestation determination review not more than ten school days later (34 C.F.R. §300.523).

        A "change of placement" is defined as occurring when "the removal is for more than 10 consecutive school days" or "a series of removals that constitute a pattern because they cumulate to more than ten school days in a school year, and because of factors such as the length of each removal, the total amount of time the child is removed, and the proximity of the removals to one another" (34 C.F.R. §300.519, codifying Honig v. Doe, 484 U.S. 305 [1988]). The preamble to the federal regulations states that, "school personnel have the ability to remove a child for short periods of time as long as the removal does not constitute a change of placement" but "if the removal constitutes a change in placement, the child's IEP team must be involved" (Fed. Reg./Vol. 64, No. 48/March 12, 1999/pp. 12413-12414). In the instant case, the "IEP team" (i.e. CSE) was not involved until after the change in placement. When disciplinary action that would cause a change of placement is "contemplated," and the school district decides to "take that action," then the timeline for parental notice and conducting the manifestation determination review begins (20 U.S.C. §1415[k][4][A]). Under the IDEA, school personnel may remove a child with a disability to an appropriate IAES, another setting, or suspension, for up to ten school days to the extent such measures would be applied to a nondisabled child (20 U.S.C. §1415[k][l][A][i]). If the behavior at issue is determined not to be a manifestation of the student's disability, school personnel may suspend the student for longer than ten days as in the case of a nondisabled student (20 U.S.C. §1415[k][5][A]). In this case, as of December 9, 2002, petitioner had removed respondents' son for more than ten consecutive school days, constituting a change in his IEP placement, without involving his IEP team to determine the services to be provided in a 45-day IAES or to determine if his behavior was a manifestation of his disability. The CSE did not meet to conduct a manifestation determination review until January 13, 2003, after respondents' son had been suspended for 24 consecutive school days (Exhibits 13, 24). Although the CSE attempted to meet on December 17, 2002, it is undisputed that petitioner mailed the original December 11, 2002 notice of the CSE meeting to an incorrect address, delaying involvement of the student's IEP team until after the suspension constituted a change in placement (Exhibit 6; Transcript pp. 118-119). Because the meeting did not occur prior to the expiration of the initial ten-day suspension, as required by the hearing decision adopted by the superintendent (Exhibits 8, 9), I concur with the hearing officer and find that petitioner's action was untimely. Due to the facts of this case, where there was noncompliance with petitioner's own hearing decision, I need not determine whether the manifestation determination was also untimely under the IDEA.

        Petitioner challenges the hearing officer's award of compensatory education. Compensatory education, the continuation of instruction to a student after he or she is no longer eligible for instruction because of age or graduation (Application of a Child with a Disability, Appeal No. 01-094), may be awarded if there has been a gross violation of the IDEA (Garro v. State of Connecticut, 23 F.3d 734 [2nd Cir. 1994] resulting in the denial of, or exclusion from, educational services for a substantial period of time (Mrs. C. v. Wheaton, 916 F.2d 69 [2nd Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2nd Cir. 1988]; Application of a Child with a Disability, Appeal No. 01-094). Because respondents' son is now only 16 years of age and because the deprivation of instruction is of limited duration and can be remedied through the provision of additional services before the student becomes ineligible for instruction, this is not a proper case for an award of compensatory education (Application of a Child with a Disability, Appeal No. 01-094). It is, however, an appropriate case for the awarding of equitable relief in the form of additional educational services. Although the hearing officer referred to the equitable relief that he ordered as "compensatory education", the hearing officer was not directing that the student's eligibility for special education be extended beyond the age of 21 because of a gross violation of the IDEA or that the educational services the hearing officer ordered be provided after the student's IDEA eligibility expires. The hearing officer here ordered that additional services be provided to make up for educational services not received during the student's suspension. While federal courts within the Second Circuit have held that compensatory education is a remedy that is available to students who are no longer eligible for instruction, I note that State Review Officers have awarded equitable relief in the form of additional educational services to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030). In the instant case, the hearing officer awarded equitable relief in the form of additional educational services after finding that the student was improperly denied services to which he was entitled during this period of placement in the after-school program. I find that the student did not receive appropriate services consistent with his IEP and that the awarding of additional educational services was appropriate.

        In his decision, the hearing officer found numerous procedural violations upon which he based his order for petitioner to provide additional services to the student. Upon the record before me, I find that the nature and number of procedural violations committed by petitioner, in addition to its failure to find the student's behavior to be a manifestation of his disability and its failure to provide an appropriate IAES, resulted in a loss of educational opportunity to respondents' son and compromised the provision of a program reasonably calculated to provide educational benefits (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F.Supp. 83 [S.D.N.Y. 1996)]; Application of a Child with a Disability, Appeal No. 02-015). Accordingly, I find the hearing officer's order reasonable to the extent that it required petitioner to provide respondents' son with additional services to allow him to make up work that he missed (Application of a Child with a Disability, 02-030; Application of a Child with a Disability, 00-006). However, the hearing officer miscalculated the amount of services the student missed. The record shows that respondents' son missed 44, not 52, hours of services (Exhibit 24). Therefore, I find it necessary to modify the hearing officer's determination of equitable relief to that extent. Furthermore, because no behavior intervention services or counseling were provided during the student's suspension despite explicit IDEA requirements that the IAES include services and modifications designed to prevent the behavior from recurring and that the CSE develop a behavior assessment plan, I concur with the hearing officer and find that respondents' son is entitled to the counseling sessions missed. However, it is not apparent from the record whether the additional counseling and educational services have already been provided to respondents' son to make up for the deprivation of services. Therefore, I shall direct the CSE to review the student's program and recommend additional counseling and educational services to enable him to address any deficiency caused by petitioner's failure to provide counseling and educational services, as found in this decision.

        In conclusion, I note that I am mindful of the seriousness of the charge against the student and of respondent's obligation to appropriately respond. I am convinced, however, that the circumstances of this case developed in such a way that the behavior at issue, resulting in the disciplinary charge, was not appropriately addressed. I have considered petitioner's remaining contentions and I find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED, unless the parties otherwise agree, that petitioner's CSE meet within 30 days of the date of this decision to provide the additional counseling and educational services to respondents' son consistent with this decision; and

IT IS FURTHER ORDERED that the student's educational record be amended to reflect that the behavior resulting in the suspension of respondents' son was a manifestation of his disability.