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 Weedsport Central School District
Matthew R. Fletcher, Esq., attorney for respondent
Petitioner appeals from the decision of an impartial hearing officer which determined that respondent’s proposed placement for her son at the Onondaga-Cortland-Madison Board of Cooperative Educational Services Intensive Adolescent Day Treatment (Onondaga-Cortland-Madison BOCES IADT) program at Hutchins Psychiatric Center was an appropriate educational program in the least restrictive environment (LRE). The appeal must be sustained.
At the outset, I will address a procedural issue. Petitioner has submitted and offers for my consideration the results of a Central Auditory Processing Evaluation (CAPE) of her son done on May 18, 2004 that was not a part of the hearing record. Respondent objects to this submission (Answer ¶ 15). Petitioner argued at the hearing that the results of this scheduled evaluation should be considered in determining whether respondent’s recommendation that the student attend the Onondaga-Cortland-Madison BOCES IADT program at Hutchins Psychiatric Center was an appropriate educational program in the LRE. The impartial hearing officer determined that the appropriateness of the recommended placement did not depend upon the results of this evaluation but that it might impact the services that the student would receive at the recommended placement. Petitioner has also submitted pages three and four that were missing from a December 2001 psychological evaluation of the student which respondent submitted as District Exhibit 2-8 at the hearing. I note here that the parties and the impartial hearing officer realized that the pages were missing during the hearing and hoped to be able to find and include them in the hearing record prior to its conclusion (Tr. p. 23).
Documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision if such evidence was unavailable at the time of the hearing or when such evidence is necessary to enable the State Review Officer to render a decision (Application of a Child with a Disability, Appeal No. 04-018; Application of a Child with a Disability, Appeal No. 03-054; Application of a Child with a Disability, Appeal No. 03-037; Application of the Bd. of Educ., Appeal No. 03-022; Application of a Child with a Disability, Appeal No. 02-098; Application of the Bd. of Educ., Appeal No. 02-024). The results of the CAPE were not available at the time of the hearing and are relevant to an issue raised at the hearing of whether the results of that evaluation would have a bearing on the program recommended by respondent’s Committee on Special Education (CSE). I will, therefore, accept the document. I will also accept the two missing pages from District Exhibit 2-8 which provide the results of a number of psychological tests as well as the basis upon which the psychologist concluded that the student appeared to fit the criteria for a particular disorder. I note here that the hearing officer’s decision makes reference to this exhibit and the psychologist’s referenced conclusion. I find these pages of this exhibit necessary for my review (Application of a Child with a Disability, Appeal No. 04-018).
Petitioner’s son was 14 years old at the commencement of the hearing in April 2004. On or about September 23, 2003, petitioner and respondent agreed that the student would receive two hours a day of tutored home instruction as a pendency placement (Dist. Ex. 2-15; Tr. pp. 41, 98, 108). Beginning in July 2003, the student had been enrolled in a 12-month day treatment program at the Cayuga-Onondaga BOCES Day Treatment program (Dist. Exs. 2-17, 2-27, 4-2 p. 1).
At the time of the hearing, petitioner’s son was classified as multiply disabled (Dist. Ex. 35 p. 2). That classification is not in dispute (see Tr. p. 55). The student’s management needs have evidenced a history of disruptive and noncompliant behavior in school. He has been evaluated by a number of different evaluators, several of whom have reached sometimes contradictory conclusions. Evaluators have concluded that the student has or may have Bipolar I Disorder, Attention Deficit Hyperactivity Disorder (ADHD), Obsessive Compulsive Personality Disorder, Conduct Disorder, history and presentation consistent with Reactive Attachment Disorder of Early Childhood, (signs of, behavior consistent with, or history suggestive of,) Asperger's Disorder, and (symptoms of) Oppositional Defiant Disorder (see Dist. Exs. 2-4 p. 3, 2-5 p. 2, 2-8 p. 5, 2-11 p. 5, 2-18 p. 3, 2-23 p. 2, 2-29). His basic academic skills are poorly developed and he shows evidence of notable auditory processing deficits (Dist. Exs. 2-24 pp. 3-4, 2-12 pp. 4-5). The student has been evaluated and found to have a severe receptive and expressive language disorder, especially in the areas of understanding spoken information, making inferences, and predictions and formulating sentences (Dist. Ex. 2-28 pp. 3-8, see also Dist. Ex. 2-40). A highly structured and routine setting with a clear set of expectations, simplified language and few distractions has been recommended as a result of evaluations (see Dist. Ex. 2-4 pp. 2-3). A very recent CAPE indicates that the student has difficulty in processing heard sounds and deficits in decoding. Although his fine and visual motor skills are within normal limits (Dist. Exs. 2-39 pp. 1-2, 2-28 pp. 1-2), the student has difficulty responding to sensory information and is unable to regulate his sensory system (Dist. Exs. 2-39 p. 2, 2-28 p. 2).
The student enrolled in respondent school district, which is in Cayuga County, in September 2000 when he was in the fifth grade (Dist. Ex. 2-7 p. 1; Tr. p. 33). Between September 2000 and July 2003, respondent placed petitioner’s son in three different placements run by the Cayuga-Onondaga BOCES. The first placement was in an 8:1+1 special class at the Herman Avenue Elementary School in the Auburn City School District (Tr. p. 67). This placement provided the student with instruction in mathematics and English/language arts and was supplemented by mainstreaming in social studies, science, and specials (id.). The second placement was in an 8:1+1 special class at the Cato-Meridian Middle School in the Cato-Meridian Central School District which provided instruction for all academic courses except science, which was provided in a mainstream setting along with lunch and specials (Tr. pp. 70, 149, 151). Staff in this placement included a master teacher, two teacher aides, a school psychologist for one and one-half days a week and an on-call "crisis interactionist" (Tr. pp. 70, 150). The third placement was in an 8:1+1 special class at the West Middle School in the Auburn City School District (Tr. p. 188). This placement provided the student with instruction in all academic areas and was supplemented by mainstreaming for specials and lunch (Dist. Ex. 2-2).
The placement at the Herman Avenue Elementary School lasted four to five weeks, beginning January 2001 (Tr. pp. 67-68). The placement at the Cato-Meridian Middle School extended approximately 18 months, March 2001 to October 2002 (Tr. p. 149). The placement at the West Middle School lasted approximately two months, late March to mid May 2003 (Tr. p. 89). The student received individual and group counseling during these placements as well as varying amounts of occupational therapy (Dist. Ex. 2-2; Tr. pp. 67, 71). Petitioner’s son also had an individual aide at the West Middle School placement (Dist. Ex. 3-6 p. 2). The three placements were all ultimately unsuccessful in that problems with the student’s behavior and/or disagreements with petitioner resulted in CSE determinations to recommend alternative placements for the student (Tr. pp. 67-69, 74-80, 84, 89-90, 151-53). Unlike the other two placements, problems with the student’s conduct and disagreements between petitioner and program staff at the Cato-Meridian Middle School came after an extended period of time where such difficulties were not present (id.). Between those placements, petitioner’s son received individual tutoring in a home instruction program at one of respondent’s schools (Dist. Exs. 3-5 p. 2-3, 3-7 p. 2, 4-2 p. 2; Tr. pp. 85-86, 92; see 8 NYCRR 200.6[h]).
A private psychologist evaluated petitioner’s son in December 2002 (Dist. Ex. 2-11). Administration of the Stanford-Binet Intelligence Scale (Stanford-Binet) yielded a composite standard age score (SAS) of 83, indicating cognitive development in the low average range. The psychologist considered these results to be "a fairly valid" reflection of the student’s current potential (Dist. Ex. 2-11 pp. 4, 5). While the evaluator noted that there were no significant discrepancies between the composite SAS and that test’s subscale scores, he also advised that the testing results indicated a fairly wide range of strengths and weaknesses (Dist. Ex. 2-11 p. 4). The evaluator assessed the student’s adaptive skills by parental report with respect to items on the Vineland Adaptive Behavior Scale (Vineland). The assessment resulted in a composite standard score of 67, indicating adaptive behavior at the 1st percentile by comparison to national standards for age (id.). As part of the evaluation, petitioner also completed the Childhood Autism Rating Scale (CARS). Those results fell into a non-autistic range (Dist. Ex. 2-11 p. 5).
Respondent’s school psychologist conducted a psychological evaluation of the student in March 2003 (Dist. Ex. 2-12). As part of this testing, he administered the Woodcock Johnson – III Tests of Achievement (WJ-III Tests of Achievement) to the student. The evaluator reported that petitioner’s son achieved standard (and percentile) scores of 69 (2) for calculation; 72 (3) for math fluency; 75 (5) for writing fluency; 77 (6) for letter word identification, reading fluency, and spelling; 79 (8) for applied problems; 84 (14) for word attack; and 84 (15) for passage comprehension (Dist. Ex. 2-12 p. 4). The evaluator concluded that the test results indicated pervasively deficient skills in the areas of reading and math (id.), and I note that all of the student’s subtest scores were deficient. The evaluator also compared the results of this testing with the student’s scores on the Stanford-Binet and concluded that petitioner’s son was performing well below his expected levels of achievement (Dist. Ex. 2-12 p. 5). The school psychologist expressed the opinion that the student’s discrepancies could possibly be due to some measure of learning disability, to diagnosed emotional condition(s), to absences from school programming accruing over time, and/or to a lack of productive participation within the educational environment (id.). The psychologist recommended that the student’s classification be changed from multiply disabled to other health impaired (id.).
Respondent's CSE met on May 19, 2003 and discussed the student’s placement for the 2003-04 school year (Dist. Ex. 3-7; Tr. pp. 90-91). At that time, the CSE discussed the student’s progress in the 8:1+1 special class at the West Middle School where he had been placed in March 2003. The CSE determined that this placement was not effective as CSE members reported that the student’s participation in educational lessons was extremely limited and he was verbally abusive to adults and classmates (Dist. Ex. 3-7 p. 1). CSE members also indicated that the student perceived the educational program as a game, was not committed to the program, and rejected any limits on his behavior suggested as part of his counseling program (id.). The CSE had recommended that the student be placed in the 8:1+1 special class program at the West Middle School in March after almost six months of home instruction (Dist. Exs. 2-2, 3-5 pp. 1, 3, 3-6). It recommended that program because of the continuing lack of availability of a day treatment placement and its conclusion that, based on his December 2002 evaluation which had indicated that the student's history and current problems were "consistent with diagnosis of Asperger's Disorder" (Dist. Ex. 2-11 p. 5), the 8:1+1 program at the West Middle School would be appropriate for petitioner's son because program staff would receive special training in Asperger's Disorder and a behavior management program relevant to students with Asperger's Disorder would be developed for the student (Dist. Exs. 2-12 p. 6, 3-6; Tr. pp. 86-90, 220, 224-25). At the March 2003 CSE meeting, the CSE also changed the student’s classification from multiply disabled to other health impaired (Dist. Exs. 2-12 pp. 5-6, 3-5 p. 3, 3-6 p. 2).
The minutes of the May 19, 2003 CSE meeting indicate that the CSE recommended placement of the student on home instruction for ten hours of individual tutoring a week, pending a review of whether he should be placed into a day treatment program or an alternative program designed for students with autism/Asperger’s disorder (Dist. Ex. 3-7). The CSE met again on June 6, 2003 (Dist. Ex. 3-8). The CSE Chairperson reported at the meeting that at that time there were no available placements for students with Asperger’s disorder in either Cayuga or Onondaga County and that an 8:1+1 day treatment program at the Cayuga-Onondaga BOCES was the most appropriate placement for the student (Dist. Ex. 3-8 p. 1). The CSE recommended that the student be placed in the Cayuga-Onondaga BOCES 8:1+1 day treatment program effective at the beginning of the July 2003 summer session (Dist. Ex. 3-8 p. 2; Tr. pp. 92-93). The CSE also determined to meet again in September to review the student’s placement (Dist. Ex. 3-8).
The student made an adequate adjustment during his first 30 days in the Cayuga-Onondaga BOCES Day Treatment program, although he displayed difficult behavior and unsuccessfully attempted to undercut the relationship between the program and his parents (Dist. Ex. 2-19 p. 3). Throughout the summer he struggled to adjust, engaged in very little academic work, required significant individual attention, and responded inconsistently (Dist. Ex. 2-27 p. 1). Petitioner cooperated with program staff during most of the summer period and attended family counseling sessions (Dist. Exs. 2-15, 2-27 p. 1).
Beginning in September 2003, the student displayed "very difficult and disruptive" behaviors, including threatening other students, intentionally provoking students who were larger than he was (Dist. Exs. 2-15, 2-27), wandering in the classroom, interfering with other students’ use of classroom equipment, removing and ripping up other students' papers from their desks, and attempting to "go through" the teacher’s desk for confidential papers relating to other students (Dist. Exs. 2-27 p. 1). The student also showed a disinterest in the program’s behavior and reward program and made false accusations of harm against program staff (Dist. Exs. 2-15, 2-27 p. 1). The situation climaxed on September 8, 2003, when because of his conduct, day treatment staff directed the student toward the program’s "safe room" (Dist. Exs. 2-15, 2-17). Petitioner objected to her son’s removal to a safe room on the basis of a March 2002 statement from the child’s pediatrician which advised against the use of a small room to de-escalate behaviors because of the student’s history of anxiety and traumatic past (Dist. Exs. 2-15, 2-17). Day Treatment staff viewed the use of a "crisis" or "safe" room as an integral part of their program and saw petitioner’s objection as complicating program efforts to keep the student and others around him physically safe (Dist. Ex. 2-27 p. 2).
Respondent reviewed the student’s progress in the Cayuga-Onondaga BOCES day treatment program at its September 17, 2003 CSE meeting. The CSE concluded that the Day Treatment program was unable to meet the student’s needs (Dist. Exs. 2-15, 2-27 p. 2). With the recommendation of the day treatment team, the CSE Chairperson suggested that a residential placement be considered (Dist. Exs. 2-27, 2-33; Tr. p. 97). A consensus could not be reached (Dist. Ex. 2-33). The school psychologist, who is a required member of the CSE (8 NYCRR 200.3[a][iv]), was not present at the meeting (Tr. pp. 97-98, 222) and it is unclear whether the CSE proceeded to make a recommendation with respect to the student's placement at that meeting (compare Tr. pp. 39, 222 with Dist. Ex. 2-33 p. 1; Tr. p. 97). At this meeting, petitioner requested a speech-language evaluation because of concerns expressed about the student’s language processing abilities during a private pediatric evaluation at Strong Memorial Hospital in Rochester (Tr. pp. 49, 134-35; see Dist. Ex. 2-23 p. 2). The private evaluation results were not available at the meeting, however, and the CSE did not pursue the request (Tr. p. 135).
By letter dated September 22, 2003, petitioner requested an impartial hearing (IHO Ex. 1). The parties agreed to the resumption of ten hours a week of home instruction as the student’s pendency placement (Tr. p. 98). Pending the scheduling of the requested impartial hearing, the CSE reconvened on December 5, 2003. Respondent reconvened its CSE in December to again consider the student’s placement because of the absence of the school psychologist at the September meeting (Dist. Ex. 2-33 p. 1; Tr. pp. 98, 222). With the recommendation of the school psychologist, the CSE changed the student's classification from other health impaired to multiply disabled (Dist. Exs. 2-25 p. 2, 2-33 p. 7). The CSE also recommended that petitioner’s son be referred to the intensive intervention program at the neighboring Onondaga-Cortland-Madison BOCES program’s Kasson Road School for a determination as to an appropriate 6:1+1 program for the student (Dist. Ex. 2-33 p. 7; Tr. p. 100). Prior to the meeting, petitioner had provided the school psychologist with the results of private occupational therapy and speech-language evaluations completed in October 2003 (Dist. Ex. 2-26 p. 1; see Dist. Ex. 2-28 pp. 1-2, 3-8). At the December 2003 meeting, the school psychologist recommended an assessment of the student’s need for speech-language therapy and occupational therapy to which the CSE agreed (Dist. Ex. 2-33 p. 4; Tr. p. 132). Petitioner continued to disagree with the CSE’s deliberations regarding her son and submitted a supplemental request for hearing (see IHO Ex. 2).
Subsequent to the December 2003 meeting, the CSE Chairperson spoke on the telephone with a supervisor at the Kasson Road School (Tr. pp. 100, 106). On March 17, 2004, the CSE Chairperson, petitioner, her husband, and the student met with two supervisors at the Kasson Road School to discuss the programs available to the student (Dist. Ex. 2-35 p. 2; Tr. p. 106). By letter dated March 18, 2004, one of the special education supervisors at the Onondaga-Cortland-Madison BOCES Kasson Road School advised the CSE Chairperson that the student’s needs could best be met in the Onondaga-Cortland-Madison BOCES Intensive Adolescent Day Treatment (IADT) program at the Hutchings Psychiatric Center (Parent Ex. 2-38; Tr. 107). The letter also advised the CSE Chairperson that if she wished to refer petitioner’s son to that program she should forward a referral packet to the program's supervisor (Parent Ex. 2-38).
The CSE met again on March 19, 2004, to discuss the student’s speech-language and occupational therapy evaluations and to recommend an educational placement (Dist. Ex. 2-35). The record does not indicate whether respondent invited a representative of the Onondaga-Cortland-Madison BOCES to attend the March 2004 CSE meeting (see 8 NYCRR 200.4[d][i][a]) and does not address coordination by respondent of the recommended placement with respect to the evaluation of petitioner’s son and the development of his individualized education program (IEP) (see 8 NYCRR200.14[c] and [d]). The CSE reviewed the results of speech-language and occupational therapy testing and assessments that had been completed during the 2003-04 school year (see Dist. Ex. 2-35; see also Dist. Exs. 2-28 pp. 1-2, 3-8, Parent Exs. 39, 40). Utilizing information provided by petitioner, the occupational therapy evaluation concluded that the student had difficulty processing, modulating, and responding to the sensory information in his environment and that he had not developed the ability to self regulate his sensory system (Parent Ex. 2-39 p. 2). Based on results from the Clinical Evaluation of Language Fundamentals, 4th Edition (CELF-4), the speech-language evaluation concluded that the student had severe receptive and expressive language deficits (Parent Ex. 2-40 p. 3, see also Dist. Ex. 2-28 pp. 3-8, 8). Based on this information, and discussion at the CSE meeting, the CSE recommended that petitioner’s son receive four weeks of individual occupational therapy once a week for thirty minutes, then reduced to a once a month consultation and also individual speech-language therapy five times a week for 30 minutes (Dist. Ex. 2-35; Tr. pp. 104-105, 119-20, 291-92). The CSE did not develop IEP goals and objectives for occupational therapy and speech-language therapy at that meeting but decided that it would do so at a subsequent annual review meeting (Dist. Ex. 2-35).
At the March 19, 2004 meeting, the CSE also reviewed the March 18 letter from the special education supervisor at the Onondaga-Cortland-Madison BOCES Kasson Road School (Dist. Ex. 2-35 p. 2; Tr. p. 107) . With petitioner dissenting, the CSE recommended that petitioner’s son be placed in the Onondaga-Cortland-Madison BOCES IADT program (Dist. Ex. 2-35 p. 2; Tr. pp. 107, 109). The program, which has a student to staff ratio of 6:1+1, is provided by the Onondaga-Cortland-Madison BOCES in cooperation with the Hutchings Psychiatric Center and is located on the Hutchings campus (Parent Exs. 2-36, 2-38; Tr. p. 109).
Petitioner wrote to the impartial hearing officer on March 27, 2004 (IHO Ex. 3). She indicated her continuing disagreement with the CSE’s placement recommendation for her son and asked that the hearing be scheduled (id.). The hearing was held on April 20, 2004. During the hearing, the parties addressed the status of the student’s receipt of the speech-language and occupational therapy services recommended by the CSE; the development of IEP goals and objectives related to those services; the CSE’s recommendation to place the student in the Onondaga-Cortland-Madison BOCES IADT program, including whether the student had been accepted into that program; whether the student would be grouped with students of similar individual needs in that program (see 8 NYCRR 200.6[a], 200.14[f]); whether the results of a CAPE scheduled to be held in May 2004 would have any bearing on the CSE’s recommended program; and whether the related services recommended by the CSE would be available to petitioner’s son at the CSE’s recommended program.
Respondent acknowledged during the April 20, 2004 hearing that the school district was not yet providing petitioner’s son with speech-language therapy or occupational therapy (Tr. p. 108). It appears that these related services had not yet started because the parties had not agreed upon relevant IEP goals and objectives and because providers of speech-language services were not available (Tr. pp. 108, 133-34, 246-48). However, respondent represented at the hearing that it would work with petitioner to reconvene the CSE to finalize the goals and objectives for these services and that it would provide petitioner’s son with the recommended speech-language therapy and occupational therapy services (Tr. pp. 108, 318, 133). Respondent, when asked by the hearing officer about providing the student with additional speech-language therapy to compensate for the time taken for those services to begin, did not rule out providing such additional services (see Tr. pp. 133, 319). As a result of these discussions and commitments, the parties resolved all but one of the issues relating to the student’s receipt of speech-language and occupational therapy services at the hearing (see Tr. pp. 138-39, 317).
The impartial hearing officer was thus asked to resolve areas of dispute with respect to the CSE’s recommendation to place the student in the Onondaga-Cortland-Madison BOCES IADT program. These unresolved areas included whether the student had been accepted into that program; whether the outstanding CAPE evaluation would have any bearing on the recommendation to place the student in that program; whether the student was grouped with students of similar individual needs in the recommended program; and whether the speech-language therapy recommended by the CSE would be available to petitioner’s son at the recommended program. Much of the hearing, therefore, was related to issues concerning the Onondaga-Cortland-Madison BOCES IADT program. No representative from that program testified at the hearing. At the conclusion of the testimony, the impartial hearing officer asked respondent to provide additional information. This included information as to whether the student would receive the recommended related services at the IADT program at the Hutchins Psychiatric Center, a class profile for the IADT program and information related to the student’s acceptance into the program (Tr. pp. 310-12). Information provided in response to this request was utilized by the impartial hearing officer in rendering her decision.
The hearing officer rendered her decision on June 14, 2004. She concluded that the student’s placement in the Onondaga-Cortland-Madison BOCES IADT program was an appropriate program for petitioner’s son in the LRE. Based upon her review of the class profile information submitted by respondent and the December 2003 IEP, she also concluded that the student was appropriately grouped for instructional purposes in that program. With respect to the question of whether speech-language therapy would be available for petitioner’s son at the IADT program (see Tr. pp. 58-59, 240-49, 312), the hearing officer concluded that it would be and pointed out that one of respondent’s post hearing submissions (see IHO Ex. 4) indicated this. Based on the testimony of respondent’s school psychologist (see Tr. pp. 225-26), she further concluded that the appropriateness of the recommended placement did not depend upon the results of the pending CAPE but that, instead, the results of that evaluation might impact the services to be provided at that placement. The hearing officer did not address the issue of whether petitioner’s son had been accepted into the Onondaga-Cortland-Madison BOCES IADT program.
Petitioner appeals from the impartial hearing officer's decision and asserts that the impartial hearing officer should not have upheld the CSE's recommendation that the student be placed in the Onondaga-Cortland-Madison BOCES IADT program. One of the reasons asserted was because the student had not been accepted into that program. Petitioner also asserts that the class profile information does not show that her son is appropriately grouped for instructional purposes at that program, arguing among other things that her son "is not mentally ill and does not have a psychiatric diagnosis". She also argues that the recommended program "is too far away", that it is not appropriate because her son’s behavioral difficulties all result from his speech and language deficits, and that he should be educated in another setting.
Petitioner contends that the hearing officer erred in upholding the CSE's recommendation that her son be placed in the Onondaga-Cortland-Madison BOCES IADT program. It is well settled that a CSE recommendation of a placement in a nondistrict facility (whether a BOCES facility or otherwise) prior to a decision by the recommended entity that it will accept the child as a student is premature (Application of a Child with a Disability, Appeal No. 03-025; Application of a Child with a Disability, Appeal No. 01-078; Application of a Child with a Disability, Appeal No. 00-020; Application of a Child with a Disability, Appeal No. 98-32; Application of a Child with a Disability, Appeal No. 96-73; Application of a Child with a Disability, Appeal No. 93-38; Application of a Child with a Disability, Appeal No. 93-15). In this case, Onondaga-Cortland-Madison BOCES supervisory staff has indicated to respondent's CSE that the IADT program "could best meet the student's needs" and "could be appropriate" (Parent Ex. 2-38). However, the record does not show that petitioner's son had been accepted into the IADT program. To the contrary, the evidence indicates that the student had not been accepted into that program. Respondent’s CSE Chairperson indicates that it is her understanding that acceptance of the student into the recommended program is dependent not only upon the identification by the CSE and the Onondaga-Cortland-Madison BOCES program staff that the student is appropriate for the program but also upon the completion of a deliberative, consensus-based intake process involving the student and six professional staff from the recommended IADT program (IHO Ex. 5, June 10, 2004 DeFazio Aff. ¶ 6). In this case, while the CSE and two BOCES staff were in agreement that the student is or could be appropriate for the IADT program, there is no evidence that the referenced six-person deliberative, consensus-based intake process had been completed. Petitioner specifically states that the six-person intake process has not been done (Pet. ¶ 20). This was a process which respondent states would include petitioner’s son (IHO Ex. 5, June 10, 2004 DeFazio Aff. ¶ 6). With the above in mind, I am constrained to conclude that the CSE's recommendation that the student be placed in the Onondaga-Cortland-Madison BOCES IADT program was premature and respondent has not met its burden of proving it offered to provide an appropriate placement (Application of a Child with a Disability, Appeal No. 03-025; Application of a Child with a Disability, Appeal No. 01-078; Application of a Child with a Disability, Appeal No. 98-32). In light of this finding, I therefore do not reach the issue of the appropriateness of the Onondaga-Cortland-Madison IADT program for petitioner's son (Application of a Child with a Disability, Appeal No. 93-38). Further, in light of my determination, I need not consider petitioner's other challenges to the hearing officer's decision.
By agreement of the parties, petitioner’s son has been assigned to home instruction and has received two hours a day of such instruction beginning on or about September 23, 2003 (Dist. Ex. 2-15; Tr. pp. 41, 98, 108), a period of almost one year. A program of home instruction is only to be recommended by a CSE if such placement is in the least restrictive environment (8 NYCRR 200.6[h]). Respondent’s CSE Chairperson has testified that home instruction is not an appropriate placement for this student (Tr. p. 111) and there is no evidence in the record to suggest that such a placement is appropriate because of its restrictive nature. It is, therefore, important that petitioner’s son receive educational instruction in an appropriate educational program in the LRE without undue delay. I will, therefore, remand this matter to respondent’s CSE to recommend an appropriate educational placement for the student in the LRE. I note here that since the student’s CAPE has now been completed (Tr. pp. 53, 60, 171) and its results received (Pet. ¶¶ 19, 21), it is appropriate that the CSE take this evaluation into account when it makes its recommendation of an appropriate placement for the student in the LRE. The CAPE may also affect the particulars of the functional behavioral assessment relating to the student.
As indicated above, at the time of the hearing, the student was not receiving speech-language therapy or counseling provided by respondent (Tr. pp. 98, 108). In light of this student’s clear needs for such related services, if the student is not yet receiving such services, at the time the CSE reconvenes to consider and recommend an appropriate educational placement in the LRE, the CSE should make appropriate recommendations with respect to these related services. Further, the student’s behavior has impeded his learning and that of others (see, e.g., Dist. Exs. 2-7, 2-15, 2-21 p. 3, 2-27, 3-7 p. 1; see, e.g., Tr. pp. 77, 84-85, 157-58, 163-64, 185, 203). It is, therefore, appropriate for the CSE to consider recommending appropriate strategies, including positive behavioral interventions, and supports to address that behavior as part of the development of the student’s IEP (see 34 C.F.R. § 300.346[a][i]; 8 NYCRR 200.4[d][i]).
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the impartial hearing officer’s decision is hereby annulled; and
IT IS FURTHER ORDERED that within 30 days of the date of this decision, respondent's CSE shall meet and develop, as required by the applicable federal and state regulations and in accordance with this decision, an appropriate IEP for the student which includes an appropriate placement in the least restrictive environment.