Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Cato-Meridian Central School District
Legal Services of Central New York, Inc., attorney for petitioner, Susan M. Young, Esq., of counsel
Matthew R. Fletcher, Esq., attorney for respondent
Petitioner appeals from the decision of an impartial hearing officer that affirmed the placement of her son at a Board of Cooperative Educational Services (BOCES) program in a 6:1:1 special education class. The appeal must be sustained in part.
At the time of the hearing, petitioner's son was almost seven years old and of small stature, 37 pounds and approximately three feet, seven inches tall (Tr. pp. 546-47, 569). After a series of behavioral transgressions including verbal and physical aggression (Tr. pp. 223-233) resulting in suspensions (Joint Exs. 56, 57, 59, 71, 72), a superintendent's hearing (Joint Exs. 74, 75, 76, 77, 78) and related appeal (Joint Exs. 84, 85), and a manifestation determination that the child's behavior was a consequence of his disability (Tr. pp. 61-62; Joint Ex. 80), the child was removed from a kindergarten program with related services (Joint Ex. 88) to home instruction with related services (Joint Ex. 91), and ultimately to tutoring and related services at the school site (Tr. pp. 42-43; Joint Exs. 110, 117). The threshold issue before me is whether the child received an appropriate placement with related services based on the individualized education program (IEP) developed by the March 15, 2004 Committee on Special Education (CSE) (Tr. p. 42). The child is classified as Other Health Impaired (OHI) based upon diagnoses of attention deficit disorder (ADD) and oppositional defiance disorder (ODD) (Tr. p. 99; Joint Exs. 46, 53). His classification is not in dispute.
Although he has been characterized as being outgoing, perceptive and curious, the child has also been observed to respond with maladaptive behaviors triggered by his physical state and/or environment (Joint Ex. 68). Slow triggers include his exposure to less structured settings, receipt of verbal directions with which he does not wish to comply, and feeling ill or tired. Fast triggers include emotional upset, unwanted tactile stimulation, transitions, and writing activities (Joint Ex. 68). A developmental pediatrician offered diagnoses of ADD and ODD and explained that the child's behavior is interfering with the completion of valid evaluations (Joint Ex. 46). Sensory integration testing was attempted, but remains incomplete (Joint Exs. 102, 109).
The child's educational history indicates that he attended two preschools during the 2000-01 school year. The first preschool addressed general preschool population needs and the second preschool addressed developmental preschool population needs (Tr. pp. 547-48). The following year, the Committee on Preschool Special Education (CPSE) classified the child as a preschool student with a disability (Joint Ex. 9). He attended an inclusive preschool program, equally divided between typically developing children and children with disabilities (Tr. p. 550), and he remained there for one school year and the subsequent summer session (Tr. p. 551). Despite the mother's belief that her son was not ready to transition to kindergarten (Tr. pp. 553-54), the June 2002 CSE (Joint Ex. 20) recommended that her son attend the district's kindergarten program, with resource room for one hour per day and related services (Joint Ex. 21). The child attended this kindergarten program for four days during fall 2002, and was then suspended for running out of the classroom and building (Tr. pp. 554-55).
The CSE reconvened on September 13, 2002 and recommended the child's placement in a 12:1:1 class (Joint Ex. 28), reportedly for low-functioning students (Tr. pp. 556-58), at a neighboring school district (Joint Ex. 28). The child attended school there until December 2002 (Tr. pp. 555-56), at which time the mother removed her son from school due to ensuing nightmares, enuresis, and objections to attending school (Tr. p. 558; Joint Ex. 39). The child was not of compulsory school age (Tr. p. 559; Joint Ex. 45). The June 2003 CSE again recommended the 12:1:1 program at the neighboring school district (Tr. pp. 559-60; Joint Ex. 47; Dist. Ex. 125). The child did not attend the recommended program in September 2003, but rather remained at home until the CSE met on September 15, 2003 to develop another IEP (Tr. p. 561).
Respondent's September 15, 2003 CSE recommended an IEP with a general education kindergarten class, with consultant teacher services, occupational therapy, speech/language services, counseling, a 1:1 assistant and the development of a functional behavioral assessment (FBA) and a behavioral intervention plan (BIP) following the first two weeks of school (Joint Ex. 53). The child's "Sheet of Understanding," a guide discussing his behavioral triggers and suggested behavioral strategies to be used by those working with him, was developed by the child's private behavioral therapist and distributed to CSE participants on this date (Joint Ex. 62). I note this is distinguishable from the Crisis Intervention Plan developed the same day by the school psychologist (Joint Ex. 64) and the BIP developed at a later date (Joint Ex. 69).
As a result of physical aggression toward classmates and teaching staff (Tr. p. 224; Joint Exs. 56, 57, 59, 71, 72), throwing objects (Joint Exs. 30, 34, 56), disrupting or destroying furnishings (Joint Exs. 59, 71), yelling (Tr. p. 221; Joint Ex. 34) and the use of inappropriate language (Tr. p. 225; Joint Exs. 34, 57), the child was suspended five times from the period commencing October 8, 2003 and terminating October 23, 2003 (Tr. pp. 224-226; Joint Exs. 56, 57, 59, 71, 72). After the child lunged at the principal (Joint Ex. 63) wielding a pair of scissors grabbed from a lazy susan tray atop of a table in a makeshift time out room (Tr. pp. 227-28; Joint Ex. 63), the district charged him with possession of a weapon and held a superintendent's hearing. The child was found guilty and placed in a 45-day interim alternate educational setting (IAES) and remanded the matter to the CSE for a manifestation determination hearing (Joint Exs. 75, 76). The manifestation determination hearing held on October 27, 2003 found that the child's behavior was related to his disability (Tr. pp. 52, 104, 235; Joint Ex. 78; Dist. Ex. 125). The CSE recommended an IAES program with home-based instruction for one hour per day (Dist. Ex. 125) and related services in school (Tr. p. 42).
Just prior to the termination of the 45-day IAES placement, the December 10, 2003 CSE recommended the child's placement at the Cayuga BOCES 6:1:1 program, with counseling and speech services (Joint Ex. 118). After the mother disagreed with the program (Joint Ex. 117), the CSE reconvened on January 27, 2004 and recommended an Oswego BOCES 12:1:1 program (Dist Ex. 125) located within a classroom in an elementary school (Joint Ex. 96). By letter dated February 5, 2004 from the BOCES supervisor of special education, the CSE Chairperson was advised that petitioner's son was not accepted into the Oswego BOCES 12:1:1 program (Joint Ex. 97). Instead, the Oswego BOCES supervisor suggested the child's placement in its 6:1:1 center-based program (Joint Ex. 97). On March 15, 2004, the CSE recommended the Oswego BOCES 6:1:1 center-based program, without the mother's consent (Joint Ex. 117).
By letter dated December 11, 2003 petitioner's attorney advised respondent's CSE chairperson that she would be requesting an impartial hearing based on disagreement with the October 27, 2003 and December 10, 2003 CSE recommendations (Joint Ex. 88). Petitioner's counsel further advised respondent's Chairperson that petitioner had not received the October 27, 2003 IEP and again objected to the child's December 10, 2003 change of placement to a day treatment setting, as relayed by petitioner to respondent on respondent's CSE recommendation form. Petitioner's attorney concluded by seeking the child's return to the kindergarten program with related services, the placement prior to the child's IAES, while indicating that the parent would be receptive to a change to the status quo during the pendency of the proceedings (Joint Ex. 88).
By letter dated December 12, 2003, petitioner's attorney formally requested due process proceedings, citing to the nature of respondent's incomplete evaluative information regarding nonverbal intelligence testing and sensory integration, the need to explore options such as the use of an independent behavioral/inclusion specialist to evaluate related services and aides in the child's kindergarten classroom setting and inclusion classrooms within or outside of the district, and the parent's willingness to discuss a modification to the status quo [placement] (Joint Ex. 89). At the time of the impartial hearing, the placement had been modified; respondent was providing tutoring in the school building (Tr. pp. 42-43).
Petitioner disagreed with the CSE's placement recommendations up to and including the March 15, 2004 IEP (Tr. p. 211) and sought a change of placement returning her son to the kindergarten classroom with appropriate supports and services provided by appropriately trained personnel familiar with sensory integration techniques, after the CSE review of all evaluations (Tr. pp. 57-58). Respondent contended that the child's placement in a 6:1:1 BOCES program, as modified by his March 15, 2004 IEP, was appropriate because of his explosive behavioral pattern (Tr. pp. 42-43).
An impartial hearing was convened on April 27, 2004 and concluded on April 28, 2004. By decision dated May 25, 2004, the impartial hearing officer determined that the child should be placed at the Oswego BOCES 6:1:1 special education class, with students having similar needs and abilities in the academic, social development, physical development, and management need domains, and with the provision of an appropriate time out room. Occupational therapy, physical therapy, and individual counseling services were each ordered two times per week for thirty-minute sessions. The impartial hearing officer further ordered the preparation of an appropriate IEP taking into consideration an FBA, appropriate BIP, and sensory integration diet.
Petitioner appeals from the impartial hearing officer's decision, arguing that the impartial hearing officer failed to determine whether the child's removal from kindergarten to a more restrictive setting was premature due to an IEP allegedly lacking appropriate supports and services: the staff lacked appropriate training (Tr. pp. 57-58, 520) and did not have access to the child's IEP (Pet. ¶ 53), and the special education services provided were sporadic and insufficient (Pet. ¶ 53). Petitioner further appeals based upon the impartial hearing officer's failure to determine procedural violations based upon the alleged absence of the Oswego BOCES representative at the March 2004 CSE meeting (Tr. p. 216) and the reported lack of evidence regarding the child's acceptance into the Oswego BOCES program (Pet. ¶ 53). Respondent asserts that the appeal should be dismissed in its entirety (Answer ¶ 42).
A board of education bears the burden of demonstrating the appropriateness of the education program recommended by its CSE (Application of a Child with a Disability, Appeal No. 01-094; Application of a Child with a Disability, Appeal No. 02-032). To meet its burden, a board of education must show that the recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 ). The recommended program must also be provided in the least restrictive environment (LRE) (Application of a Child with a Disability, Appeal No. 01-094; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]). LRE means that placement of a student with a disability in special classes, separate schools or other removal from the regular educational environment occurs only when the nature or severity of the disability is such that even with the use of supplementary aids and services, education cannot be satisfactorily achieved (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]; 8 NYCRR § 200.1[cc]).
Initially, petitioner argues two procedural violations. I have considered petitioner's assertion regarding the lack of evidence demonstrating the child's acceptance into the recommended Oswego BOCES program and find that it is beyond the scope of my review because it was not raised below (Application of the Bd. of Educ., Appeal No. 02-024). Relevant to petitioner's allegation regarding the absence of the Oswego BOCES representative at the March 2004 CSE meeting (Tr. p. 216; IHO Decision, p. 10), the Regulations of the Commissioner of Education state:
If the recommended placement is to be in a school operated by an agency or a school other than the school district in which the student would normally attend if the student did not have a disability or if the education of a student residing in a facility operated or supervised by a State department or agency is the responsibility of the school district, the school district must ensure that a representative of that agency or school attends. If the private school or facility representative cannot attend, the school district must use other methods to ensure participation by the private school or facility, including individual or conference telephone calls. (8 NYCRR 200.4[d][i][a]; see 34 C.F.R. § 300.349[a])
There is no dispute that a representative of the BOCES program did not participate in the CSE meeting held to develop the March 2004 IEP and to recommend placement (Tr. p. 216). Instead, CSE members relied on representations made by the CSE Chairperson (Tr. pp. 366-67, 482, 504-05, 513-14) based upon her November 2003 visit to the BOCES program to generally acquaint herself with the facilities for purposes of future placements (Tr. pp. 182-83); this visit was not specifically designed to gather placement information for petitioner's son (Tr. p. 188). Although this visit lasted several hours, the CSE Chairperson could not identify the amount of time that she spent in the 6:1:1 program at the Oswego BOCES (Tr. p. 183). Additionally, no other district representative visited the 6:1:1 classroom to evaluate its appropriateness for petitioner's son (Tr. p. 187). Therefore, I find that the CSE should have included a representative from the BOCES program (Application of a Child with a Disability, Appeal No. 03-046; Application of the Bd. of Educ., Appeal No. 03-062).
I must now determine if this procedural violation resulted in a denial of a free appropriate public education (FAPE) (see J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000]; Application of the Bd. of Educ., Appeal No. 01-047), i.e., whether the violation resulted in a loss of educational opportunity (see, e.g., Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 930 F.Supp. 83, 93 [S.D.N.Y. 1996]; Application of a Child with a Disability, Appeal No. 01-061; Application of a Child with a Disability, Appeal No. 01-046) or educational benefit (see, e.g.,Arlington Cent. Sch. Dist. v. D.K., ___ F.Supp. 2d ___, 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002.]) for the student, or seriously infringed on the parent's participation in the creation or formulation of the IEP (see, e.g., W.A. v. Pascarella, 153 F.Supp.2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist. 948 F.Supp. 1242 [D.Vt. 1996]; Application of a Child with a Disability, Appeal No. 96-31). I conclude that it did.
The record of the proceedings established that petitioner had multiple program and safety concerns regarding the Oswego BOCES placement (Tr. pp. 583-89), after having visited the program for approximately one and one-half hours (Tr. p. 578). Petitioner expressed her concerns to the CSE (Tr. p. 589). Although the CSE Chairperson had a discussion with the BOCES representative about the child's needs and the existence of the 6:1:1 program (Tr. p. 176) and the Chairperson was in possession of a class profile (Joint Ex. 101), during the impartial hearing she could not recall pertinent information about the program at issue. In addition to not being able to recall whether specials such as art, music, and gym were offered within the building (Tr. p. 188), she could not provide an answer as to the level of security offered at the front door of the building (Tr. p. 189). Nor could she address questions related to potential safety issues arising from sharing building facilities with other programs (Tr. p. 190). In light of the child's need for movement breaks (Joint Ex. 109), his history of running out of rooms and/or buildings (Tr. pp. 554-55), and his impulsive behavior (Tr. p. 317), this is relevant information which should have been provided by the BOCES representative during the March 2004 CSE meeting, prior to the resulting placement recommendation.
The absence of the BOCES representative from the March 2004 CSE meeting was not without harm. The CSE did not benefit from the attendance and participation of the Oswego BOCES representative, and was deprived of information necessary to formulate an appropriate placement recommendation. As limited by the record before me, I find that the district has failed to meet its burden of proof in establishing that the CSE was properly composed (8 NYCRR 200.4[d][i][a]; see 34 C.F.R. § 300.349[a]). I further find that the CSE must reconvene to recommend an appropriate placement providing a program reasonably calculated to ensure educational benefits considering, inter alia, the child's safety, behavioral, and sensory integration needs.
I also find that the nature and number of procedural violations committed by respondent go to the very heart of the Individuals with Disabilities Education Act (IDEA) and resulted in a loss of educational opportunity to petitioner's son (Evans, 930 F.Supp. at 93; see Arlington Cent. Sch. Dist. v. T.M., ___ F.Supp.2d ___, No. 02 Civ. 2252 [S.D.N.Y. July 29, 2002]; Briere, 948 F.Supp. 1242). Accordingly, I find that respondent has failed to meet its burden of proving that it provided an appropriate educational program for the student (see Application of the Bd. of Educ., Appeal No. 01-059; Application of the Bd. of Educ., Appeal No. 01-014; Application of a Child with a Disability, Appeal No. 00-084; see also Application of a Child with a Disability, Appeal No. 99-81), and that petitioner's son was denied a FAPE (Arlington Cent. Sch. Dist. v. T.M., ___ F.Supp.2d ___, No. 02 Civ. 2252 [S.D.N.Y. July 29, 2002]; see Arlington Cent. Sch. Dist. v. D.K., __ F. Supp. 2d ___, 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002]; Evans, 930 F.Supp. 83; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000]). Having found that the child has been denied a FAPE, I do not address petitioner's remaining contentions.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the impartial hearing officer’s decision regarding the child's placement at the Oswego BOCES program in a 6:1:1 special education class is annulled; and
IT IS FURTHER ORDERED that a properly composed CSE shall reconvene within 30 days from the date of this decision to recommend an appropriate placement for the child for the 2004-05 school year.