04-006

           Petitioner, the Board of Education of the West Seneca Central School District (district), appeals from an impartial hearing officer's decision annulling the May 27, 2003 determination of its Committee on Special Education (CSE) that conduct of respondent's daughter was not a manifestation of her disability.  Petitioner also appeals from the hearing officer's finding that petitioner was precluded from holding a manifestation determination review and that the student's May 27, 2003 individualized education program (IEP) should be annulled.  Respondent cross-appeals from the hearing officer's decision that petitioner was not authorized to conduct a manifestation determination review, asserts that the hearing officer improperly presided over and conducted the hearing and should have ordered certain independent evaluations of her daughter at public expense, and that the IEP developed at the May 8, 2003 CSE meeting was inadequate and should be annulled.  The appeal must be dismissed.  The cross-appeal must be sustained in part.

            At the commencement of the hearing in August 2003, respondent's daughter was 17 years old.  During the 2003-03 school year, she completed an 11th grade half-day afternoon program at petitioner's East Senior High School (East High School) and a half-day morning program in small animal care at the Ormsby Educational Center in East Aurora, New York (Ormsby).  Respondent's daughter is classified as a student with a learning disability (Exhibit 18; see also Exhibit 35; Transcript pp. 389-91).  There is no dispute regarding her classification or eligibility for special education services. ¹

            During the 2002-03 school year, the student initially attended an 11th grade program at petitioner's West Senior High School (West High School) and also attended a half-day morning program in small animal care at Ormsby (Exhibits 33, 43, 44, 60; Transcript pp. 328, 1213-14).  The program at Ormsby was designed for students with special education needs who might not be able to successfully participate in the school's regular small animal science program (Transcript p. 1214).  On November 14, 2002, respondent requested an impartial hearing because of a complaint relative to her daughter's program (see Exhibit 33).  The matter was resolved by a settlement agreement  reached during the first week of February 2003 ( id.).  Among other things, the agreement provided that the student continue in the Ormsby program for the balance of the 2002-03 school year, attend East High School, and receive supplemental services in reading instruction five times a week.  The agreement also provided that respondent consent to psychological, occupational therapy and speech-language evaluations, petitioner pay for independent reading and assistive technology evaluations, and the CSE convene and develop an IEP within 30 days (id.).

            Consistent with the settlement agreement, respondent's daughter transferred to petitioner's East High School (see Answer ¶10; Exhibits 22, 33) for afternoon classes.  At East High School, the student's academic program included regular education courses in health and government as well as a 1:1 course in reading (Exhibits 22, 40-42; Transcript pp. 1117-18).  She also attended the small animal care program at Ormsby and had the assistance of a classroom aide (Exhibit 40; Transcript pp. 1213-14, 1282, 327-30, 348, 1232-33).  After first meeting on March 6, 2003 and completing some evaluations, the CSE met on May 8, 2003 and developed an IEP for the student for the 2003-04 school year (Exhibits 32, 22).   

            The record indicates that the student's behavior, performance and attendance at Ormsby deteriorated after the first quarter of the 2002-03 school year.  The student's absences increased from 3 in the first quarter to 13 in the second quarter (see Exhibit 43).  Her grade in the small animal program fell from 82 in the first quarter to 56 at the end of the second quarter (id.).  A guidance review sheet prepared by Ormsby staff reported that respondent's daughter had not completed assignments because of her absences and that she needed to apply herself in order to successfully complete the program by the end of the 2002-03 school year.  The student's grades improved somewhat during the third quarter and she received a grade of 69 for that quarter, which ended on April 4, 2003 (Exhibit 41).  Her attendance, however, did not improve.  By May 14, 2003, respondent's daughter had been absent from the Ormsby program for 39 days (Exhibit 44; Transcript p. 1262). 

            In the less than two months between March 20, 2003 and May 14, 2003, respondent's daughter received seven disciplinary referrals related to her behavior at Ormsby (Exhibits 9, 10, 11, 12, 13, 14, 15, 16).  The alleged misconduct included episodes of failing to promptly report to class, not following the classroom aide's instructions, arguing, and being disrespectful to teachers.  As a result of the disciplinary referrals prior to May 14, 2003, respondent's daughter was assigned to in-school suspension at Ormsby on March 20, May 1, May 2, May 5 and May 6 (seeExhibits 9, 11, 12, 13; Transcript pp. 1281-82).  As a result of  the May 14, 2003 episode of misconduct, the student was suspended from Ormsby on May 15 and May 16 (see Exhibits 14, 15, 16; Transcript pp. 1281-82).

            The student's conduct on May 14, 2003 also led to discipline in her afternoon program at East High School.  After reportedly yelling at and threatening another student in that school's cafeteria during lunch, respondent's daughter was reportedly involved in a fight with the same student a short time later.  As a result, petitioner suspended the student from her academic program at East High School for five school days during the period from May 15 through May 21 (Exhibits 2, 3).  The student returned to school after completing her five-day suspension.

            After the student's suspension from East High School, respondent's advocate requested a CSE meeting to review "the connection between the suspensions and (the student's) disability, a nexus meeting" (Transcript pp. 86-87, 89).  Petitioner's director of special education testified that although he believed that a manifestation determination review was not required, the district acquiesced to respondent's request (Transcript pp. 76, 82-83, 85-86, 87).  A manifestation determination review was held by a CSE on May 27, 2003 (Exhibit 4; Transcript pp. 86-87).  After receiving the notice of the CSE meeting, respondent called the CSE chairperson on May 21, 2003 and advised him that she would not be able to attend a meeting on that date because her advocate could not attend (Transcript pp. 90, 91).  During this telephone call, petitioner's director of special education offered to reschedule the meeting to either May 26 or May 28, 2003, or to an earlier date if respondent were willing to agree to meet without five days' notice (Transcript pp. 90-91; see 8 NYCRR 200.5[c][1]).  Petitioner was not willing to schedule the meeting after May 28, 2003, as the special education director believed that it was required to be held within ten days of the date of the student's most recent suspension (Transcript pp. 88-89, 91; see 34 C.F.R. 300.523[a][2]; 8 NYCRR 201.4[a]).  

            The CSE met as scheduled on May 27, 2003.  The parent did not attend and neither did the student’s special education teacher or anyone from the student's program at Ormsby (Exhibits 6, 7; Transcript p. 95).  The CSE agreed at the meeting that the student's May 8, 2003 IEP was appropriate and the CSE chairperson testified that the CSE determined that the student's conduct on May 14 for which she was suspended from East High School was not a manifestation of her disability (Exhibit 7; Transcript pp. 96-98, 151-52).  It also decided that a functional behavioral assessment (FBA) was necessary for the student and amended the student's IEP to include that recommendation (Exhibits 7, 17; Transcript pp. 153-54).  Respondent's daughter returned to East High School upon the expiration of the five-day suspension, and she attended summer school at the end of the 2002-03 school year (Transcript p. 1392).  The May 27, 2003 IEP is the student's most recent IEP (Transcript pp. 1205).

           A hearing was held on August 7, September 3, 4, 5, 23, 30, October 17, and November 25, 2003.  The impartial hearing officer issued a decision on December 31, 2003. The hearing officer concluded that the CSE's manifestation determination review was premature because there was no actual or contemplated disciplinary change in placement (see 34 C.F.R. 300.523[a]; 8 NYCRR 201.4[a][3], 201.2[e]).  As a consequence, the hearing officer annulled the CSE's determination that the student's conduct on May 14, 2003 was not a manifestation of her disability.  The hearing officer also annulled the May 27, 2003 IEP on the grounds that respondent had not been given notice that a new IEP would be developed at the May 27, 2003 CSE meeting.

            The board of education has appealed from the hearing officer's decision and the parent has filed a cross-appeal.  Petitioner appeals on the basis that the CSE had a right to "gratuitously review" the relationship between the student's disability and her conduct without respect to whether or not such a review would have been otherwise required by the relevant provisions of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 -- 1487) and that its manifestation determination was proper and correct.  It also argues that since the manifestation determination review was not required, the hearing officer should have dismissed respondent's objections to it.  With respect to the May 27, 2003 IEP, petitioner argues that the hearing officer should not have heard testimony relative to that IEP and that, in any event, the notice of that meeting was sufficient to advise respondent that the CSE might modify her daughter's educational program at the meeting.

            Respondent's cross-appeal raises numerous issues including that the hearing should have been conducted on an expedited basis in accordance with 8 NYCRR 201.11; that the CSE was required to hold a manifestation determination review in light of the student's suspensions; that the hearing officer should have ordered petitioner to immediately complete the functional behavioral assessment; that the hearing officer should have determined that the May 8, 2003 IEP was inadequate; that the hearing officer should not have heard testimony from petitioner with respect to the adequacy of its occupational therapy and speech-language evaluations and that he should have ordered petitioner to provide the student with independent speech-language and occupational therapy evaluations at public expense; that compensatory and additional educational services should be provided; and that the hearing officer should have considered whether petitioner was complying with the parties' February 2003 settlement agreement with respect to the completion of an assistive technology evaluation.

            A manifestation determination review is required when a decision is made or it is contemplated that a student with a disability will be suspended for more than ten consecutive school days (see 34 C.F.R. § 300.523[a]; 8 NYCRR 201.4[a][3]).  A manifestation determination review is also required when a student with a disability will be suspended for a period of ten 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 ten 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 (id.). 

            In the instant case, the facts show that there was neither contemplation that the student be suspended for more than ten school days, nor suspension that amounted to a disciplinary change in placement.  The director of special education testified that the student had been suspended for less than ten days but that a manifestation review was held at the request of respondent (Transcript pp. 85, 143).  The hearing officer concluded that there had not been a disciplinary change in placement (8 NYCRR 201.2 [e]).  I agree.  Assuming arguendo, that all of the student's in-school suspensions at Ormsby should be counted as removals, the student was suspended for, at most, ten non-consecutive school days (March 20, May 1, May 2, May 5, May 6, May 15, May 16, May 19, May 20 and May 21, 2003).²

            I agree with the hearing officer that, under the circumstances presented here, petitioner was not required to conduct a manifestation review (see 20 U.S.C. § 1415[k][4]; 34 C.F.R. § 300.523[a]; 8 NYCRR 201.4[a][3]).  However I do not concur with the hearing officer’s conclusion that “the CSE did not have subject matter jurisdiction to conduct a manifestation review.”  Nor do I frame the discussion in terms of “subject matter jurisdiction.”  While not required to make a manifestation determination under these circumstances, I am not persuaded petitioner was precluded from conducting such a review.  I need not discuss whether it was advisable to hold a manifestation review, and note only, as the hearing officer did, that it is appropriate for a CSE to take proactive measures to consider the needs of a student with behavioral difficulties and convene to consider whether the student's IEP is adequate and whether it would be appropriate to perform an FBA and develop a behavioral intervention plan.  Clearly this can be done in the absence of a manifestation review when a review is not required (see 64 Fed. Reg. 12,624; U.S. Dept. Education, OSEP Policy Memorandum 97-7; see also OSEP Letter to Osterhout, 35 IDELR 9 [July 25, 2002]).  With that said, and given the fact that the student returned to school after her five-day suspension, I find that the claim before me raised by petitioner pertaining to the manifestation determination is moot because there is no ongoing controversy and therefore must be dismissed.  In addition, because petitioner took no disciplinary action which impermissibly changed the student's placement, respondent's cross-appeal pertaining to the hearing officer's determination that petitioner was precluded from conducting a manifestation review is dismissed because respondent is not aggrieved.  "T]he administrative appeal process is available only to a party which is 'aggrieved' by an IHO's determination" (Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 385 [N.D.N.Y. 2001]). Only a party aggrieved by a hearing officer's decision may appeal to a State Review Officer (34 C.F.R. 300.510[b][1]; 8 NYCRR 200.5[j]; Application of a Child with a Disability, Appeal No. 02-007; Application of a Child with a Disability, 99-029).  Further, the State Review Officer is not required to determine issues which are no longer in controversy or to review matters which would have no actual effect on the parties (Application of a Child with a Disability, Appeal No. 02-011; Application of a Child with a Disability, Appeal No. 98-73; Application of a Child Suspected of Having a Disability, Appeal No. 95-60).

            I now turn to the remaining issues raised in this appeal.  The hearing officer annulled the May 27, 2003 IEP because he concluded that the parent was not given proper notice that the CSE would develop an IEP at this meeting (see Exhibit 4).  Petitioner has appealed from this conclusion.  I need not decide this issue because I find that petitioner cannot meet its burden of showing that the May 27, 2003 IEP is appropriate because the CSE was not properly composed.  The applicable regulations require that a CSE be composed of enumerated members including a “special education teacher of the student” (see 8 NYCRR 201.4, 201.2[b], and 200.3[a][1][iii]; 34 CFR 300.344[a][3]; 34 C.F.R. Part 300 Appendix A Questions 23, 26).  In this case, I find that the special education teacher who attended the CSE meeting was not the special education teacher of the student.  (Transcript pp. 984-85, 1005, 1134, 1380-87, 1394-95, 1403-40). 

          It was important for the student’s special education teacher to attend the May 27, 2003 CSE meeting.  The student had significant behavior and attendance problems and the CSE considered whether certain conduct was related to her disability and whether her IEP needed to be revised.  The absence of information that her special education teacher could have provided with respect to her special education needs and behavior compromised the development of an IEP reasonably calculated to provide educational benefit.³  The fact that the majority of the members of the May 27, 2003 CSE did not personally know or had little, if any, contact with respondent's daughter (see Transcript pp. 190-95, 418, 435-36, 477, 793, 796, 808), and that none of the student's instructors from her program at Ormsby were present at the meeting (Exhibits 6, 7; Transcript pp. 98-99, 211-12) exacerbated the problem faced by the CSE in the absence of a special education teacher of the student.⁴

        The record shows procedural deficiencies in the development of the May 27, 2003 IEP because of the failure to have a properly composed CSE.  When a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlett Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]), e.g., resulted in the loss of educational opportunity (Evans v. Bd. of Educ., 930 F. Supp.83, 93-94 [S.D.N.Y. 1996]), seriously infringed on the parents' opportunity to participate in the IEP formulation process (see, W.A. v Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist, 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D. K., 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002]).  For reasons discussed above, I find that the improper CSE composition resulted in a denial of FAPE for this child.

        I have reviewed the May 8, 2003 IEP and the May 27, 2003 IEP.  The May 8, 2003 IEP contains an adequate description of the student's social/emotional concerns related to the behaviors leading to suspension.  It also contains social skills goals which are appropriate for the student's identified needs, but the goals and objectives are vaguely stated and contain no criteria for measurement.  Of greater concern is that there is nothing in the IEP to indicate how the goals were to be addressed.  The student's previous IEP, dated July 24, 2002 (Exhibit 60) contains the same goals and lists counseling as a related service.  Counseling is not included in the May 8, 2003 IEP and there is nothing in the record to explain if the student made any progress towards achieving those goals or why essentially the same goals were carried over to the May 8, 2003 IEP.  In essence, the May 8, 2003 IEP identifies social/emotional concerns consistent with the behaviors the student exhibited, but offers nothing to address them. The record indicates that at the time it was created the May 8, 2003 IEP was to be in effect as of May 9, 2003 and for the 2003-04 school year.  The only change to the May 8, 2003 IEP was the addition of the functional behavioral assessment (FBA) recommended by the CSE on May 27, 2003.  Although the CSE was not properly composed regarding the May 27, 2003 IEP and the IEP is inadequate, the recommendation made by the CSE to conduct an FBA is appropriate. 

            As a final matter for consideration, respondent asserts that the student is entitled to compensatory educational services and additional educational services.  Compensatory education is instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction.  It may be awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Application of Bd. of Educ. of the Barker Cent. Sch. Dist., Appeal No. 02-047).  There is no evidence of either in the record.  Moreover, there is nothing in the record to show that the student is no longer eligible to receive instruction.

            While 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 additional 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).  Here, the record does not clearly indicate that additional services are needed, in part due to uncompleted evaluations, to remedy any deprivation of services.  Accordingly, I cannot determine if an award of additional services is warranted in this case.  Therefore, I direct the CSE to consider whether any additional services are necessary.

            I have considered the remaining issues raised by both petitioner and respondent in the appeal and cross-appeal and find them to be without merit.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent indicated; and

IT IS FURTHER ORDERED that if it is not already done, petitioner's CSE shall complete the functional behavioral assessment referenced in its May 27, 2003 IEP forthwith; and

IT IS FURTHER ORDERED that petitioner complete any other pending evaluations of the student which the parties have agreed should take place; and

IT IS FURTHER ORDERED that unless the parties otherwise agree, within 30 days from the date of this decision, petitioner's CSE shall meet and develop an appropriate 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; the CSE shall also determine, based upon the result of the FBA, whether additional evaluations are necessary and what other actions should be taken to address the student's social/emotional needs; and determine whether any additional services are necessary.