04-053

           Petitioner, the Board of Education of the Herricks Union Free School District, appeals from the decision of an impartial hearing officer, which found petitioner's Committee on Special Education (CSE) had erred in determining that the behavior of respondent's son that was subject to disciplinary action was not a manifestation of his disability.  The appeal must be dismissed.

            At the time of the hearing, respondent's son was 16 years old and was receiving home instruction following a superintendent's suspension and pending admission at an alternative placement.  On April 15, 2004, while the hearing was ongoing, the impartial hearing officer ordered that the student return to petitioner's Herricks High School (Apr. 14, 2004 Tr. pp. 57-58) where he received services in accordance with the student's most recent individualized education program (IEP) which was developed January 6, 2004 (Tr. p. 238).  The student has been classified as other health impaired (OHI) by petitioner's CSE (Dist. Ex. 3).  He has a medical diagnosis of temporal lobe epilepsy causing severe repetitive seizures, which do not respond to medication (May 10, 2004 Tr. p. 108).  The student's IEP also indicated that he has language-processing deficits (Dist. Ex. 3).  The student's classification is not in dispute.

           The student's annual review was held on June 25, 2003.  For the 2003-04 school year, petitioner's CSE recommended an inclusion classroom with a student to staff ratio of 15:1 for two 42-minute periods per day (Dist. Ex. 3).  The CSE also recommended a vocational component.  The student was transported out of district to Levittown to participate in a culinary arts program for part of the school day.  The IEP includes the recommended related services of guided study for one period per day, a teacher aide (1:1 aide) for three hours per day (Levittown), a teacher assistant (1:1 aide) for four hours per day (Herricks High School), a peer leadership class and a vocational component (id.).  The CSE further recommended that the student receive extended year services of an 8:1 class which the district referred to as "special education itinerant teacher" for one hour, five days per week, to support language arts, math, science and social studies.  The CSE also recommended that the student receive preferential seating, copies of class notes, an additional set of books and support for school personnel (id.).  The CSE recommended testing accommodations and assistive technology devices of extended time (2.0), administration in a location with minimal distractions with directions read and explained and tests read, use of a calculator and use of a word processor.  The student also required access to the school nurse and the services of a 1:1 aide at both locations to monitor his seizure disorder.  The IEP did not recommend a 1:1 aide on the bus during transport to and from Levittown.

           According to the IEP, the student exhibited delays in reading comprehension and math concepts, which inhibited his participation in age-appropriate activities.  The student was described as having an average rate of progress, and his academic skill levels and learning abilities were within expectations.  The student required a multisensory instructional approach and needed to improve written expression and reading comprehension.  The student's social emotional levels and abilities were described as within age expectations.  The IEP noted that his classroom behavior did not interfere with instruction and that the student demonstrated appropriate social judgment.  The IEP also indicated that the student related appropriately to adults and peers while he had some difficulty accepting criticism.  At the time of the student's annual review, he did not have any social emotional needs that required special education services. 

          The 2003-04 IEP contained goals and objectives related to study skills, reading comprehension and written expression.  According to the minutes of the meeting, the student had done well during the 2002-03 school year.  His teachers reported that he was motivated, consistently participated in class, but had difficulty with science.  The minutes reflect that the student's speech provider felt "the student [was] ready to move on from speech services" (Dist. Ex. 3). 

            On September 16, 23, and 26, 2003, a neuropsychological triennial evaluation was completed.  The neuropsychologist had last assessed the student in July 2000.  At that time the student had difficulty with auditory and linguistic processing as well as with attention and organizational skills (Dist. Ex. 4).  The neuropsychologist reported that between August and September 2002 the student had undergone three surgical procedures to re-sect portions of his left sensory cortex in order to aid with seizure control (id.).  According to his report, the student's seizures had improved following the surgical procedures, but he still needed to be maintained on anticonvulsant medications.  The evaluator noted that video monitoring at the New York University Epilepsy Center had revealed that the student was experiencing pseudo seizures at the time of the evaluation.  The student was administered the Wechsler Intelligence Scale for Children - Fourth Edition (WISC-IV), Woodcock-Johnson Tests of Achievement - Third Edition (WJ-III), Purdue Pegboard Test, Beery Test of Visual Motor Integration (VMI), Stanford Binet - Fourth Edition, Test of Variables of Attention (TOVA), SCAN-A Test of Auditory Processing Disorders (SCAN-A), Comprehensive Assessment of Spoken Language (CASL), and Wide Range Achievement Test – Revision 3 (WRAT-3) (Dist. Ex. 4).  Testing indicated that the student should be regarded overall "as a youngster with average intelligence" (Dist. Ex. 4).  The neuropsychologist reported that the student performed within the average range on verbal comprehension and perceptual reasoning indexes and in the low average range on processing speed and working memory indexes (id.).  He noted adequate performance in visuoperceptual and constructional areas and in nonverbal reasoning areas (id.).  The student continued to demonstrate difficulty with attention and auditory processing tasks that overlap with attention demands.  The neuropsychologist also observed that the student continued to demonstrate significant difficulty with language processing relative to expressive and conceptual language skills.  He further reported that the student's response times remained slow and he observed some evidence of difficulty with fine motor skills.  The neuropsychologist found that academically the student had "held his own" or improved since the July 2000 assessment.  He noted that the student has some degree of difficulty with reading comprehension and math problem solving skills.  He found the student's basic reading, writing, and basic computational math skills to be satisfactory.

            The neuropsychologist recommended that the student remain classified as OHI and opined that the student's inclusion program with guided study, teaching assistant and aide for vocational study in culinary arts was "quite appropriate" (Dist. Ex. 4).  The neuropsychologist noted that the student needed a great deal of educational support due to his language processing difficulty.  He recommended preparation and review time for text-related and literature-based reading as well as support for classroom lessons.  He further recommended remedial support for reading comprehension and problem solving math skills. 

            By letter dated November 19, 2003, the principal of petitioner's Herricks High School notified respondent that her son was suspended for five days pending a superintendent's hearing (Dist. Ex. 8).  By letter dated November 20, 2003, petitioner's superintendent notified respondent that her son had been charged with disorderly conduct, endangering himself and others, possession of a weapon on November 17, 2003, defacing and damaging a school bus and fighting (Dist. Ex. 9).  The letter indicated that a superintendent's hearing had been scheduled for November 25, 2003 (id.).  By letter dated November 26, 2003, petitioner's CSE Chairperson informed respondent that the manifestation determination review had been rescheduled for December 2, 2003 pursuant to the parent's request (Dist. Ex. 24). 

            Petitioner's assistant principal of Herricks High School (assistant principal) testified that he learned of an incident on the bus involving respondent's son on November 18, 2003, when several students and the bus driver came to his office to report the incident (Tr. pp. 40-44, 45-47).  The bus driver submitted an incident report, which described damage to a seat on the bus and included the cost to repair the damage (Dist. Ex. 7).  Petitioner's assistant principal interviewed the students who came to his office and began an investigation that revealed that respondent's son had asked to see a device that was referred to as either a razor blade or box cutter that was in the possession of another student (Dist. Ex. 10; Tr. pp. 49-58).  The student who originally had the razor blade/box cutter (Student A) gave it to respondent's son (Tr. pp. 62-64).  Another student reported witnessing respondent's son cutting the seat (Tr. pp. 51, 54).  Student A reported hearing a ripping sound coming from the seat occupied by respondent's son and a fight between the two students ensued (Tr. pp. 52-53).

            Petitioner's assistant principal also interviewed respondent's son on three occasions (Tr. p. 58).  During the first and second interview, the student denied any involvement in damaging the seat and also denied possessing a weapon (Tr. pp. 58-59).  At the third interview, the student admitted possessing the razor blade/box cutter and admitted cutting the bus seat (Tr. pp. 59-62).  Respondent later paid for the damage to the bus seat. 

            Petitioner's CSE convened on December 2, 2003 for a manifestation determination review.  According to the committee summary information, the CSE determined that there was "no manifestation - CSE feels that action was not a result of disability"  (Dist. Ex. 20).  The committee summary information contains little indication of what was discussed, what was reviewed or other information required to make a manifestation determination.  Although not a member of the CSE, petitioner's assistant principal attended the manifestation determination review and testified that it was his opinion that the student's behavior was not a manifestation of his disability because based on his interviews with respondent's son, the student knew the difference between right and wrong (Tr. p. 72). 

            Petitioner's CSE Chairperson testified that a behavioral intervention plan (BIP) was discussed at the meeting but no plan was in place because the student had never exhibited any problematic behavior (Tr. pp. 170-71).  When asked what the plan would be for the future she stated, "[t]he only discussion that had taken place was to have a, I guess, safe haven for [the student] in the high school, either with [assistant principal] or [school psychologist], if he was having difficulty as an informal plan, not a formalized plan" (Tr. p. 171).  When asked whether a functional behavioral assessment (FBA) was to be developed after the meeting, petitioner's CSE Chairperson testified "[i]t was discussed but we never really got to that point to really determine when we were going to do that" (Tr. p. 171).  The CSE ultimately determined that the behavior was not a manifestation of the student's disability while the student, his parent and the additional parent member disagreed with that determination (Dist. Ex. 20; Tr. p. 91). At the meeting respondent also expressed a belief that the services provided at the vocational program were not appropriate (Dist. Ex. 20). On December 8, 2003, respondent requested an impartial hearing to review the manifestation determination (Dist. Ex. 14).

            The expedited hearing began on December 18, 2003 (IHO Decision, p. 2), following petitioner's CSE's determination on December 2, 2003 that the student's behavior on November 17, 2003 was not a manifestation of his disability (Dist. Ex. 20).  The hearing lasted six days and concluded on May 10, 2004 (IHO Decision, p. 2).  On the second day of the hearing, the parties agreed to a change in the student's pendency placement (Tr. pp. 297-301; 34 C.F.R. § 300.526[a]). 

            By decision dated June 26, 2004, the impartial hearing officer found petitioner:  1) had failed to conduct an FBA and formulate a BIP (IHO Decision, p. 13); 2) had offered to provide a free appropriate public education (FAPE) to respondent's son (IHO Decision, p. 15); and 3) had failed to make any finding as to the student's ability to understand the impact and consequences of his actions (IHO Decision, p. 15).  The impartial hearing officer agreed with petitioner's CSE that the record supported a finding that the behavior that subjected respondent's son to discipline was not a manifestation of his disability (IHO Decision, p. 16).  Nonetheless, the impartial hearing officer determined that he was constrained to find the student's behavior was a manifestation of his disability because of petitioner's failure to comply with the requirements of federal and state law (id.).  The impartial hearing officer also determined that respondent's claims relative to an interim alternative educational setting (IAES) were moot because the hearing officer had ordered that the student begin attending petitioner's Herricks High School again on April 19, 2004, before the hearing had concluded (id.). 

            In this appeal, petitioner contends that the impartial hearing officer erred in determining that the student's behavior was a manifestation of his disability and requests that his decision be annulled.  Since neither party appeals from that part of the impartial hearing officer's decision which found respondent's IAES claims moot, I do not review them (20 U.S.C. § 1415[i][1][A]; N.Y. Educ. Law § 4404[1]; 34 C.F.R. § 300.510; 8 NYCRR 200.5[i][4][ii]).

            The purpose of the Individuals with Disabilities Education Act (IDEA) is to ensure that children with disabilities are provided a 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). 

            The IDEA, New York Education Law and their implementing regulations provide specific procedural protections for children with disabilities who are subject to discipline (20 U.S.C. § 1415[k]; N.Y. Educ. Law § 4404[4][b]; 34 C.F.R. §§ 300.519-300.529; 8 NYCRR Part 201).  New York requires that the CSE shall conduct a review of the relationship between the student's disability and the behavior subject to disciplinary action immediately, if possible, but in no case later than ten school days after a decision is made by a superintendent of schools to change the placement of a student to an IAES (8 NYCRR 201.4[a][1]; Application of the Bd. of Educ., Appeal No. 03-075).  State regulation requires that not later than ten business days after  imposing a suspension or removal that constitutes a disciplinary change in placement, including a change in placement to an IAES the CSE must convene to develop a functional behavioral assessment and implement a behavioral intervention plan (8 NYCRR 201.3[a][1]).  State regulation further sets forth the conduct of review to be completed by the CSE before making a manifestation determination, which is analogous to its federal counterpart (8 NYCRR 201.4[c]; see 34 C.F.R. § 300.523[c]).   

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

(1) first consider all relevant information pertaining to the behavior subject to disciplinary action, including:

(i) evaluation and diagnostic results, including the results or other relevant information supplied by the parents of the student;

(ii) observations of the student; and

(iii) the student's IEP and placement;

(2) then determine that:

(i) in relationship to the behavior subject to disciplinary action, the student's IEP and placement were appropriate and the special education services, supplementary aids and services and behavioral intervention strategies were provided consistent with the student's IEP and placement;

(ii) the student's disability did not impair the ability of the student to understand the impact and consequences of the behavior subject to disciplinary action; and

(iii) the student's disability did not impair the ability of the student to control the behavior subject to disciplinary action.

(8 NYCRR 201.4[c]; see also 20 U.S.C. § 1415[k][4][C]; 34 C.F.R. § 300.523[c]).

            I concur with the findings and well-reasoned determination of the impartial hearing officer. The impartial hearing officer determined that petitioner failed to conduct an FBA and prepare a BIP as required by section 201.3 of the Regulations of the Commissioner of Education. As a result of not having the behavioral assessments, he also correctly concluded, given the facts of this case, that the CSE did not conduct an appropriate review because it did not consider all relevant information pertaining to the behavior subject to disciplinary action (8 NYCRR 201.4(c)(1)(i)).  He further correctly found that the CSE review did not make any findings, pertaining to the ability of the student to understand or not understand the impact and consequences of his actions, or his ability to control the behavior subject to the disciplinary action, in violation of section 201.4 (c)(2)(ii),(iii) of the Regulations of the Commissioner of Education. The committee summary information dated December 2, 2003 and which respondent purported to be the minutes of the manifestation determination review contains little information relative to the requirements of sections 201.3 and 201.4 of the Regulations of the Commissioner of Education.   The impartial hearing officer found that petitioner failed to prove that it complied with the conduct of review (8 NYCRR 201.4(c)) and the CSE was, therefore, precluded by state and federal law from determining that the behavior in question was not a manifestation of the student’s disability.   The regulation clearly states that the CSE may determine that the student's behavior was not a manifestation of the student's disability "only if they" comply with the requirements of the conduct of review.  State and federal regulations further require that if the IEP team and other qualified personnel determine that any of the above three criteria are not met, the student's behavior shall be considered a manifestation of the student's disability (34 C.F.R. § 300.523[d]; 8 NYCRR 201.4(d)).  The record reveals that petitioner did not comply with the Regulations of the Commissioner of Education relative to a manifestation determination review.  Therefore, I, too, am constrained to find that the student's behavior was a manifestation of his disability.

THE APPEAL IS DISMISSED.