03-087

        Petitioner appeals from the decision of an impartial hearing officer which upheld a recommendation by respondent's Committee on Special Education (CSE) that her daughter be educated in respondent's Bermar Alternative High School (Bermar). The appeal must be sustained in part.

     Initially, I must address several procedural matters. Respondent asserts that petitioner failed to personally serve the school district clerk or superintendent of schools in accordance with the Regulations of the Commissioner of Education (8 NYCRR § 275.8). The Notice with Petition was served upon an assistant superintendent of schools (Answer ¶ 2). Although petitioner should have served either the school district clerk or the superintendent of schools, an appeal from a decision of a hearing officer is not generally dismissed for service irregularities, absent a showing of prejudice to the respondent (Application of a Child with a Disability, Appeal No. 93-7; Application of a Child with a Disability, Appeal No. 93-2). Since respondent has not alleged that it was prejudiced by petitioner's defective service, I will exercise my discretion and excuse petitioner's improper service. Respondent further alleges that petitioner has not complied with section 275.10 of the Regulations of the Commissioner of Education and that it is "impossible for Respondent to ascertain from the Petition the nature of Petitioner's claim or the specific acts complained of" (Answer ¶ 3). I note that respondent was able to effectively respond to petitioner's allegations in a timely manner upon receipt of the petition (Application of a Child with a Disability, Appeal No. 02-009).

        Petitioner alleges that respondent called an undisclosed witness at the hearing in violation of her due process rights (34 C.F.R. § 300.509[a][3]; 8 NYCRR § 200.5[i][3][xi]). Federal and state regulations provide that each party has the right to prohibit the introduction of any evidence the substance of which has not been disclosed at least five business days before the hearing (34 C.F.R. § 300.509[a][3]; 8 NYCRR § 200.5[i][3][xi]; Application of a Child with a Disability, Appeal No. 01-061; Application of a Child with a Disability, Appeal No. 97-18). Respondent failed to include the name of the school social worker (social worker) in its disclosure letter to petitioner (IHO Exhibit 6). Petitioner contends that she objected to this witness at the time he was called to testify (Pet. ¶ 2). The record reveals that petitioner did not object to this witness, rather she objected to respondent's rebuttal witness (Transcript p. 326). The social worker was one of seven witnesses who testified to the appropriateness of respondent's recommended placement. The social worker was the only witness located at Bermar (Transcript p. 242), and he testified about the program offered at Bermar (Transcript pp. 242-57). The substance of his testimony was reflected in the student's individualized education program (IEP) (Exhibit 48) and in respondent's program handbook (Exhibit 51). The record shows that these exhibits were timely disclosed (Transcript pp. 9-10). While I do not condone the attorney's failure to disclose, I find that petitioner was on notice of the substance of the social worker's testimony (Application of a Child with a Disability, Appeal No. 97-18).

        At the time of the hearing, petitioner's daughter was 15 years old and had completed the ninth grade at respondent's Brockport High School. The student is classified as other health impaired (Exhibit 48). The record reveals some uncertainty regarding her diagnoses. In February 1996, she was referred to a neurologist for an initial Tourette syndrome evaluation (Exhibit 2). The neurologist found evidence of a brain development disorder and observed "Tourette-like, attention deficit disorder-like and obsessive-compulsive-type symptoms" (Exhibits 2, 4). In October 1998, the student's pediatrician reported that she had been diagnosed with Tourette's syndrome and obsessive compulsive disorder (Exhibit 7). In May 2002 and June 2003, another physician reported the student was suffering from depression and an acute anxiety disorder (Exhibits 25, 50). The student has also been reported as having bipolar disorder, attention deficit disorder and as being prone to mood swings (Exhibits 3, 37; Transcript pp. 47, 260, 337).

        In March 1996, the student was referred to the Child Study Team (CST) (Exhibit 3). A psychoeducational evaluation performed by the CST ruled out the presence of learning disabilities however, mood swings and difficulty with peer relationships were noted (Exhibit 3). The student was described as stubborn and manipulative and the evaluator suggested that some of her social and emotional difficulties might reflect "learned" behavior (Exhibit 3). In March 1998, when the student was in the fourth grade, she was again referred to the CST and subsequently the CSE due to ongoing concerns with academic performance and social interactions (Exhibit 3A). A psychological evaluation completed at that time revealed that the student had difficulty interpreting social cues, was extremely sensitive to criticism, looked to place blame elsewhere and was prone to verbal and occasional physical aggression. Unstructured situations were described as stressful for the student (Exhibit 4). Behavior scales completed by the student's teacher indicated that her social problems, anxious/depressed behavior and aggressive behavior were all in the clinically significant range. The student reported that she was able to build and maintain friendships but admitted some difficulty with peer affiliation. She shared that she was frequently teased about her weight. According to the psychologist, the student’s academic aptitude was in the low average to average range and testing revealed that her achievement was commensurate with her potential. Consultant teacher services and social skills training were recommended (Exhibit 4).

        For the 1998-99 school year, the student was classified as other health impaired (Exhibit 6). The CSE recommended direct consultant teacher services and developed goals and objectives related to reading, language arts, math and counseling. In October 1998, the student's pediatrician stated that she had been diagnosed with Tourette’s syndrome and obsessive compulsive disorder. She reported that the student's hitting, kicking and swearing behaviors were beyond her control (Exhibit 7). The student's consultant teacher indicated that petitioner's daughter had experienced some difficulty with higher-level comprehension, spelling and basic math facts (Exhibit 11). She reported that the student often demonstrated attention-seeking behaviors and that classroom strategies, including reflective techniques, planned ignoring, a reward system and removal from the classroom had been unsuccessful. In December 1998, respondent conducted a functional behavioral assessment (FBA) (Exhibit 8), which identified the following problem areas: non-compliance, anger management and problem solving. In December 1998, the CSE met, apparently due to the parent's request for a more restrictive placement, and in February 1999, the student was transferred to a self-contained 15:1 special education classroom (Exhibit 6; Transcript p. 34).

        For the 1999-2000 school year, the CSE recommended placement in a self-contained 15:1 special education classroom for science and social studies, mainstream classes for math and language arts, with the related service of counseling once per week for 30 minutes (Exhibit 12). The student's IEP goals addressed weaknesses in written language, language arts, math, study skills and self-esteem/self-control. In October 1999, the student was switched to a mainstream math class. During the sixth grade the student exhibited disciplinary problems including, disorderly conduct, insubordination and endangerment. At various times she received detention, in school suspension and out of school suspension (Exhibit 13). Her teacher reported that her oppositional behavior was increasing (Exhibit 14). On March 23, 2000, the CSE held a manifestation determination hearing and concluded that the student's behavior was related to her disability (Exhibit 15). The CSE recommended placement in a self-contained 8:1+2 Board of Cooperative Educational Services (BOCES) classroom (Exhibit 15; Transcript p. 38). While awaiting the BOCES placement the student was moved to a district self-contained 8:1+1 classroom for science, social studies and math. Physical education was changed to adaptive physical education (adaptive PE) and she remained mainstreamed for language arts (Exhibits 12, 15). Petitioner ultimately rejected the recommended BOCES placement (Answer ¶ 24).

        For the 2000-01 school year, the CSE recommended that the student be placed in a self-contained 15:1 special education classroom for all subjects (Exhibit 18). The CSE further recommended adaptive PE and counseling once per week for 40 minutes. The student's IEP contained goals for counseling and math. Petitioner's daughter continued to engage in disorderly conduct, which resulted in both in school and out of school suspension (Exhibit 19). The record indicates that another manifestation determination hearing may have been held in the fall of 2000 (Exhibit 20).

        For the 2001-02 school year, the CSE recommended placement in a self-contained 15:1 special education classroom for academic subjects and counseling twice per week for 30 minutes each three-day cycle (Exhibit 22). The CSE reasoned that due to the student's inconsistent control of emotions and behavior a small class size was necessary. The student's IEP indicated that she would yell, use vulgar language, threaten staff and leave the setting without permission if she felt she was being treated unfairly. Petitioner's daughter reportedly had difficulty building and maintaining relationships and would exhibit physically aggressive behavior if she felt that she was not in control. The IEP indicated that she needed clearly defined expectations and consequences, and to learn anger management strategies.

        According to a psychological triennial evaluation conducted in October 2001, the student's behavior in the classroom had improved (Exhibit 21). Her teacher reported that she participated in classroom discussions and was a very motivated learner. Outside the classroom petitioner's daughter became involved in incidents of insubordination that involved verbal aggression toward peers and adults. Social/emotional assessments revealed clinically significant scores in the area of self-esteem (the student's self report), aggression, conduct problems, depression and social skills (petitioner's report). The Conners' Teacher Rating Scale completed by the student's teacher suggested problems related to oppositional behavior and emotional instability. Testing revealed low average cognitive ability and average scores on achievement testing. The psychologist recommended placement in a 15:1 special class with mainstreaming for language arts and science. The psychologist also recommended that an FBA and behavioral intervention plan (BIP) be completed.

        Subsequent to the student's triennial, respondent consulted with a behavioral specialist from BOCES. The specialist met with the student's teachers who at the time reported no significant problems (Exhibit 57). The consultant identified three areas in need of intervention: helping the student identify the causes of social problems and her role/control over them, helping her respond to teasing/bullying without resorting to aggression, and working to improve her troubled relationships with authority figures. The consultant recommended that respondent address the student's problems through social skills training, assistance in dealing with teasing, help applying conflict resolution strategies and providing the student more frequent feedback on classroom behavior plans. An FBA and BIP were developed in February 2002 (Exhibit 23).

        In May 2002, the student's doctor indicated that she was suffering from depression and an acute anxiety disorder. He opined that she would benefit from tutoring until her therapy was regulated (Exhibit 25). The record reveals that the student's IEP was modified several times during the 2001-02 school year. In October 2001, she was mainstreamed for language arts. In November 2001, she was moved to a mainstream class for science, but then returned to the 15:1 class in January 2002. At that same time she was apparently moved to a mainstream class for social studies.

        An annual review was held on May 29, 2002. For the 2002-03 school year, the CSE recommended that the student receive consultant teacher services in language arts, math, social studies, and science, as well as counseling twice per week for 30 minutes (Exhibit 43). Notations on the IEP indicated that the student was switched to a 15:1 special class for social studies in October. The student's IEP indicated that she could use the counseling office as a time out room/safe location. It also stated that petitioner's daughter had made "great strides" during the eighth grade. No management needs were listed, however the need to demonstrate appropriate social skills more consistently was noted. Academically, the student demonstrated weaknesses in math and writing. Her IEP included goals for math, writing and social emotional skills.

        As in previous years, the student exhibited disciplinary problems during the ninth grade. Reported infractions included tardiness, insubordination, disruptive behavior and endangerment/assault (Exhibit 30). Consequences included detention and out of school suspension (Exhibit 31). A new BIP was developed in January 2003. The plan reiterated that the student could use the counseling office for time out if she felt she was losing control (Exhibit 32).

        On April 25, 2003, the student made verbal threats against another student (Exhibits 30, 33, 34). As respondent's staff were attempting to calm her, she became further agitated. Petitioner's daughter reportedly pushed a vice principal, and another staff member was hit by a clipboard that the student had knocked off of a counter. The student then proceeded to the cafeteria where she allegedly physically assaulted another student (Exhibits 35, 36). The police were called to help control her and she reportedly assaulted them as well. The police transported the student to a local hospital (Exhibit 37). Petitioner's daughter was suspended for five days (Exhibit 38). On May 1, 2003, a manifestation determination hearing was held. Petitioner's daughter received two hours per week of home tutoring, with a plan to reintegrate her into the high school over the course of three weeks (Exhibit 26). Following the manifestation determination, respondent's CSE recommended reevaluation (Exhibit 41; Transcript p. 54). By consent form dated May 2, 2003, respondent's CSE chair requested and received written parental consent for a psychiatric evaluation (Exhibit 41). The May 2, 2003 document included a description of the evaluation, procedural safeguards notice and explained that BOCES would arrange for the evaluation (Exhibit 41; Transcript pp. 54-55). For reasons not fully explained in the record the student reportedly did not attend the evaluation on the scheduled date (Transcript pp. 54-55).

        On June 30, 2003 the CSE reconvened. A revised FBA was conducted and a BIP developed (Exhibit 46). The CSE recommended that the student attend an alternative high school. The CSE further recommended placement at Bermar in an 8:1+1 special education classroom, with the related services of counseling twice per week for 30 minutes and family counseling once per month for one hour (Exhibit 48). The IEP further indicated that the student have a 1:1 aide for transitions, however this appears to be a transposing error from a previous IEP revision. The IEP also included provisions for a staffed time out area and mental health support for anger management. Under present levels of performance the CSE noted that social emotional factors impeded academic progress. The CSE concluded that the student would benefit from a small class environment, which could provide therapeutic intervention when needed. Petitioner's daughter was reported to have low average cognitive abilities and commensurate academic skills. Her report card for the ninth grade revealed final grades in the seventies, with the exception of earth science where her final grade was a 65 (Exhibit 47).

        At the student's annual review held June 30, 2003, petitioner presented a letter from the student's doctor¹. The letter indicated that the medication the student had been treated with for the past two years sometimes worsened depression and irritability in children (Exhibit 50). The physician stated "this clearly may be relevant to [the student's] behavior." He urged the CSE to consider that petitioner's daughter would not be taking this medication any longer when making recommendations for the 2003-04 school year.

        Following the June 30, 2003 annual review, petitioner requested both a hearing and that her daughter be declassified (Exhibit 53). On July 7, 2003, petitioner completed a request for due process proceedings form wherein she stated that she disagreed with the CSE's recommended placement, that respondent "violated" her daughter's IEP, and that her daughter should be given an opportunity to adjust to her new medication prior to being placed in an alternative high school (Exhibit 56). The impartial hearing began on July 30, 2003 and testimony was heard for three days, concluding on August 6, 2003. At the hearing, respondent stated that it intended to prove the appropriateness of its recommendation, while also requesting that the impartial hearing officer order psychiatric and physical evaluations without requiring parental consent (Transcript pp. 7-8). The impartial hearing officer rendered his decision on August 18, 2003, finding respondent offered petitioner's daughter an appropriate program and placement, the student's classification should remain other health impaired, and ordering respondent to obtain psychiatric and physical evaluations without parental consent. In this appeal, petitioner seeks an updated physical examination and asserts that her daughter has been treated unfairly and should be allowed to remain in respondent's Brockport High School receiving services in accordance with her 2002-03 IEP.

        The purpose of the Individuals with Disabilities Education Act (IDEA) is to ensure that children with disabilities are provided 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). To meet its burden of showing that it provided a FAPE to an individual child, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). The student's right to a FAPE has been affected when the procedural violation results in the loss of the student's educational opportunity or seriously infringes upon the parents' opportunity to participate in the development of the student's IEP (see, Evans v. Bd. of Educ., 930 F. Supp. 83, 93-94 [S.D.N.Y. 1996]; W.A v. Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]; Application of a Child with a Disability, Appeal No. 02-092).

        The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the 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. 02-092; Application of a Child with a Disability, Appeal No. 01-105).

        On May 2, 2003, petitioner consented to a psychiatric evaluation of her daughter (Exhibit 41). Respondent's CSE chairperson testified that "[a] date was set and [petitioner] didn't follow through on that scheduled date." (Transcript p. 55). The student's annual review was held on June 30, 2003 and a psychiatric evaluation had not been obtained. The CSE chairperson further testified that at the June 30, 2003 CSE meeting "[w]e first indicate that from our May meeting when we had recommended a psychiatric evaluation, we wanted that to occur first and then have annual reviews. We were hoping that that documentation would help us in the planning for [the student]. Since the psychiatric evaluation did not occur, then we went ahead with our annual reviews" (Transcript p. 56).

        It is well settled that an IEP must reflect the results of evaluations to identify the student's needs. Federal regulations require that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1). In the instant case, the CSE had deemed a psychiatric evaluation necessary in order to determine the student's needs (8 NYCRR 200.4[b][4]) and had obtained parental consent (Exhibit 41; Transcript p. 56). The psychiatric evaluation did not take place, yet the parties commenced the student's annual review and recommended a program and placement.

        Respondent, herein, recommended a program and placement without appropriate evaluations of this student in violation of the IDEA and state regulations (8 NYCRR 200.4[f][1][b]; 8 NYCRR 200.4[f][4]). Such a recommendation resulted in a loss of educational opportunity for petitioner's daughter and a denial of FAPE (see, J.D. v. Pawlet Sch. Dist., 224 F.3d at 69; Evans v. Bd. of Educ., 930 F. Supp. at 93-94; W.A v. Pascarella, 153 F. Supp.2d at 153; Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. at 1255; Application of a Child with a Disability, Appeal No. 02-092; Application of a Child with a Disability, Appeal No. 02-080). Respondent obtained parental consent for the psychiatric evaluation, yet did not obtain the evaluation prior to developing the student's IEP. Respondent's CSE chairperson testified that petitioner did not bring her daughter to the evaluation on the scheduled day. There is no convincing evidence in the record to support respondent's contention that petitioner withdrew consent, nor is there sufficient evidence that the CSE attempted to reschedule the psychiatric evaluation. Although the issue of consent was not fully developed at the hearing, petitioner did not express opposition to the psychiatric evaluation during her testimony.

        Even if respondent's CSE was unsure of the status of petitioner's consent, federal and state regulations set forth two scenarios by which school districts may obtain reevaluations without consent (34 C.F.R. § 300.505[b]; 34 C.F.R. § 300.505[c]). In the event a parent refuses to give consent to an initial evaluation or a reevaluation, school districts "may continue to pursue those evaluations by using the due process procedures under §§ 300.507-300.509" (34 C.F.R. § 300.505[b]).

        If a parent fails to respond to a request for parental consent for reevaluation, school districts may avail themselves of section 300.505(c): "Informed parental consent need not be obtained for reevaluation if the [school district] can demonstrate that it has taken reasonable measures to obtain that consent, and the child's parent has failed to respond" (34 C.F.R. §300.505[c][1]; see also, 8 NYCRR 200.5[b][1][i][b]). The school district is required to have a record of its attempts to obtain parental consent and may do so by documenting telephone calls and the results of those calls; copies of correspondence and any responses received; and detailed records of visits to the parents' home and the results of those visits (34 C.F.R. 300.345[d][1]-[d][3]; 8 NYCRR 200.5[b][1][i][b][1]). Once the school district can document its inability to obtain parental consent, the school district may go forward with the necessary reevaluation.

        In the instant case, petitioner consented to the psychiatric evaluation of her daughter. I need not reach whether on these facts, respondent could obtain a psychiatric evaluation without parental consent pursuant to sections 300.505(b) or 300.505(c). The record suggests that at various times the student has been diagnosed with Tourette's syndrome, obsessive compulsive disorder, attention deficit disorder, anxiety and depression, mood swings and bipolar disorder. The primary source for some of these diagnoses is not known. In addition to the various diagnoses, the student's inappropriate behavior is alternately described as manipulative and learned or as an uncontrollable manifestation of Tourette's syndrome. The student has been prescribed several medications, including some apparently designed to modulate her moods, and one with a reported side effect of irritability. I agree with the conclusion reached by respondent and petitioner on May 2, 2003 that a psychiatric evaluation of the student, to assist with the determination of an appropriate educational program, would be in the student's best interest. This seems particularly appropriate here given petitioner's familiarity and preference for the BOCES psychiatrist whom the parties agreed should perform the evaluation.

        In order for the CSE to fully understand the student's behavioral, social/emotional and management needs it is necessary to ascertain the student's current mental health status, as well as the extent to which she can consciously control her inappropriate behaviors. The CSE should consider the student's existing evaluative data, including information from the student's treating physicians beyond the correspondence contained in the record, and obtain any necessary additional evaluative data in order to recommend an appropriate program and placement. The record reflects that petitioner's consent obtained May 2, 2003 is still in effect. It is not necessary at this time for respondent to obtain a psychiatric evaluation without parental consent. Petitioner herein, has neither affirmatively refused to consent to the evaluation nor has she failed to respond to the request for consent within the meaning of sections 300.505(b) and 300.505(c).

        In conclusion, I find that respondent has failed to comply with the requirements set forth in the IDEA for formulating an appropriate IEP, and such failure has resulted in a recommended IEP that was not reasonably calculated to enable the child to receive educational benefits because it was not based upon sufficient evaluative data to accurately identify needs, services and placement (34 C.F.R. § 300.346; Rowley, 458 U.S. at 206-07).

        I have considered petitioner's remaining claims and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent that it found respondent offered to provide an appropriate educational program to petitioner's daughter for the 2003-04 school year and ordered respondent to obtain psychiatric and physical evaluations without parental consent; and

IT IS FURTHER ORDERED that respondent shall within 30 days of this decision, unless the parties otherwise agree, reconvene its CSE to determine the evaluative data needed in order to recommend an appropriate program and placement; and

IT IS FURTHER ORDERED, unless the parties otherwise agree, that the parties, based upon the May 2, 2003 consent for a psychiatric evaluation, take the necessary steps to effectuate the evaluation if it has not taken place subsequent to this appeal, and that such evaluation, and any other necessary evaluative data, be reviewed and a new IEP developed at a CSE meeting to be convened within 60 days of this order.