04-107

            Petitioner appeals from the decision of an impartial hearing officer which found that the behavior of petitioner's son which was subject to disciplinary action was not a manifestation of his disability.  The appeal must be dismissed. 

             Before addressing the merits of this appeal, I must address two procedural issues.  Respondent has submitted an affidavit from the director of pupil personnel services, along with a December 2, 2004 individualized education program (IEP), functional behavioral assessment (FBA), and behavioral intervention plan (BIP) that were not made part of the hearing record and are now offered for submission.  Generally, documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary in order to render a decision (see Application of the Bd. of Educ., Appeal No. 04-068; see generallyApplication of a Child with a Disability, Appeal No. 04-030; Application of a Child with a Disability, Appeal No. 04-020).  While the documents were not available at the time of the hearing, petitioner does not object to their submission. I will accept the documents taking into consideration petitioner’s response to them contained in his reply (Reply ¶¶ 12-21). As to the second procedural issue, respondent objects to petitioner’s reply and accompanying documents asserting that they do not respond to any procedural defenses or to the additional documentary evidence served with the answer (see 8 NYCRR 279.6). I will accept petitioner’s reply and supporting affidavit to the extent that they respond to respondent’s additional documentary evidence. I will not accept petitioner’s memorandum of law submitted with its reply because it neither addresses procedural defenses raised in the answer nor responds to additional evidence. I do note, however, that although I have accepted and considered the additional evidence and response thereto, the evidence produced at the hearing and subjected to examination provides the basis for my determination of this appeal. 

            At the time of the hearing, petitioner's son was a 15 year old, ninth grade student (Tr. p. 163) placed in a Board of Cooperative Educational Services (BOCES) program (Tr. pp. 48-49, 163).  The student’s 2004-05 program and placement were determined by the Committee on Special Education (CSE) at an annual review meeting on April 4, 2004. There is agreement between the parties that the 2004-05 IEP is appropriate (Tr. pp. 55, 138). There is no dispute about the student’s eligibility for special education services as a student with an other health impairment (OHI) (see 8 NYCRR 200.1[zz][10]). The student’s classification as OHI is based primarily upon a diagnosis of attention deficit hyperactivity disorder (ADHD) (Tr. pp. 70, 211; District Ex. G).

            On September 27, 2004 the student was suspended from school for misconduct (District Ex. A-1; see N.Y. Education Law § 3214). On October 1, 2004 a CSE convened and determined that the student’s behavior was not a manifestation of the student’s disability (District Ex. A-5). In relationship to the behavior at issue, the CSE found the student's IEP and placement to be appropriate (Dist. Ex. A-5 at p. 1).  The student's disability was not found to impair his ability to understand the impact and consequences of the behavior at issue.  Nor did the CSE find that the student's disability impaired the ability of the student to control the behavior subject to the disciplinary actions.  At the meeting, the student’s father expressed his belief that the misconduct was a manifestation of the student’s disability (District Ex D; Tr. pp. 54-55, 58-59). 

             By letter dated October 3, 2004, petitioner requested an impartial hearing to contest the determination of the CSE (IHO Ex. 3).  The impartial hearing was held on October 20, 2004.  By decision dated November 12, 2004, the impartial hearing officer found that the misconduct by the student was not a manifestation of his disability (IHO Decision, p. 10).   

             On appeal, petitioner asserts that the impartial hearing officer erred in determining the following: the misconduct was not a manifestation of the student’s disability; the district held a properly constituted CSE meeting and considered all relevant information; and that the IEP is appropriate and being appropriately implemented.

             The CSE, with other qualified personnel, may determine that the behavior of the student was not a manifestation of his 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; and

(2)        Then determines 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.

(20 U.S.C. §1415[k][4][C]; 34 C.F.R. §300.523[c]; 8 NYCRR 201.4[c]). If, in the course of its review, the CSE determines that any of the three standards in paragraph (2) above were not met, the behavior must be considered a manifestation of the student's disability (34 C.F.R. §300.523[d]; 8 NYCRR 201.4[d]; see Application of the Bd. of Educ., Appeal No. 03-075).

               The impartial hearing officer found that a properly constituted CSE considered all relevant information regarding the student (IHO Decision, p. 11).  She determined that the CSE and other qualified personnel considered the student's most recent psychoeducational evaluation, classroom observation reports and other reports from the special education teacher (IHO Decision, pp. 6, 11), district staff (IHO Decision, p.11) and the father (IHO Decision, pp. 2, 11).  The impartial hearing officer further determined that the CSE reviewed the appropriateness of the student's IEP and placement (IHO Decision, p. 11).   

               The impartial hearing officer also found the student's current IEP to be appropriate and properly implemented (IHO Decision, p. 12).  She determined that the student's IEP appropriately identified his needs and provided programs and services to address his needs (id.).  The impartial hearing officer noted that the student was receiving almost daily counseling, in addition to the weekly counseling required by his IEP, and that daily counseling addressed the student's then relatively minor misbehaviors (IHO Decision, p. 13).  She further noted that the student's 2004-05 BOCES program was specifically designed for students with ADHD and referenced the parent's testimony regarding the student's success there (id.). The impartial hearing officer determined that the student understood the impact and consequences of his actions on September 4, 2004 (IHO Decision, p. 14).  She noted that the student was 15 years old and of average intelligence.  The impartial hearing officer added that several witnesses testified that the student understood the cause and effect relationship between the misbehavior and punishment for the misbehavior.  She further cited to testimony that established that although the student understood school rules and could distinguish right from wrong, he sometimes chose to act wrongfully and sometimes did not follow parental rules even after being told what the consequences would be. She concluded also that testimony revealed that his disability did not limit his ability to control the behavior that resulted in the misconduct charges (IHO Decision, p. 16).

              Based upon my review of the entire record, I find that the hearing was conducted in a manner consistent with the requirements of due process and that there is no need to modify the order of the impartial hearing officer (34 C.F.R. § 300.510[b][2]; N.Y. Educ. Law § 4404[2]).

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

THE APPEAL IS DISMISSED.