05-055

            Petitioners appeal from the decision of an impartial hearing officer which found that respondent’s Committee on Special Education (CSE) appropriately determined that the student’s alleged behavior, which resulted in his suspension, was not a manifestation of his disability and that the CSE failed to evaluate the propriety of the interim alternative educational setting (IAES), denying the student a free appropriate public education (FAPE).  Respondent cross-appeals from that portion of the impartial hearing officer’s decision which found that it denied the student a FAPE.  The appeal must be dismissed.  The cross-appeal must be dismissed.

            Petitioners’ son, at the time of the proceeding below, was a 17-year-old, 11th grade high school student (Mar. 24, 2005 Tr. p. 154; Dist. Ex. 2). The student was then, and continues to be, eligible for special education programs and services due to a learning disability (Mar. 24, 2005 Tr. p. 156; Dist. Ex. 1; see 8 NYCRR 200.1[zz][6]). The student’s individualized education program (IEP) for the 2004-05 school year, created on June 1, 2004, placed the student in a regular education program with “resource” services for 180 minutes per week and testing modifications (Dist. Ex. 1).

           On January 5, 2005 the student was suspended for insubordination for leaving the principal’s office without authorization during an investigation of the student’s alleged possession of a controlled substance.¹   On January 11, 2005 a superintendent’s hearing was held (Dist. Ex. 2, Jan. 12, 2005 Report). On January 12, 2005, the presiding hearing officer recommended to the superintendent that the student be suspended for the rest of the school year and be “transferred” to an alternative school to complete his education (id.). By letter dated January 13, 2005 the superintendent notified petitioner that she had adopted the hearing officer’s findings of the student’s insubordination and of his likely possession of an illegal substance (Dist. Ex. 2). The superintendent placed the student in an IAES at Lincoln Academy (Lincoln), pending the outcome of a manifestation determination (id.). A CSE conducted a manifestation determination review (MDR) on January 21, 2005 and January 24, 2005 and concluded, over petitioners’ objection, that there was no nexus between the student’s disability and the alleged misbehavior (Dist. Ex. 2 at p. 11; see Parent Exs. A, B, C, D; see 34 C.F.R. § 300.523; 8 NYCRR 201.4).  By letter dated January 27, 2005, respondent’s superintendent advised petitioners of her decision to continue the student’s placement at Lincoln for the remainder of the 2004-05 school year (Dist. Ex. 2 at p. 10).

           On January 25, 2005, petitioner requested an impartial hearing stating that the Lincoln placement was “completely unacceptable” (Joint Ex. 1 at p. 2).  The student’s mother refused to send her son to Lincoln (Mar. 24, 2005 Tr. p. 173).  An agreement regarding the student’s placement during his suspension was not reached between petitioners and respondent’s CSE at its meeting on January 21, 2005 (Parent Ex. B at p. 2); however, by a March 14, 2005 order of the impartial hearing officer, the student was returned to his general education placement two days prior to the expiration of the 45 day IAES time period (Mar. 14, 2005 Tr. pp. 231-35, 240; see 8 NYCRR 201.7[e]). The student never attended Lincoln. ² 

           At the time of his suspension, the student was taking classes in global (social studies), English lab, resource, and physical education, and he was scheduled for, but not receiving, health education (Mar. 24, 2005 Tr. p. 158).  The student was also enrolled in an afternoon Board of Cooperative Educational Services (BOCES) program that provided instruction in science, math and English (Mar. 24, 2005 Tr. p. 159).  After his suspension on January 5, 2005, the student began receiving two hours of tutoring per school day on January 10, 2005, first at home and subsequently at school, in global (social studies) and English, which continued through the date of the hearing (Mar. 14, 2005 Tr. pp. 217-20).  In the middle of February 2005, the student resumed attending the afternoon BOCES program he had attended before his suspension (Mar. 24, 2005 Tr. pp. 19, 87).  On March 14, 2005, the impartial hearing officer ordered the student to return to his pre-suspension placement (Mar. 14, 2005 Tr. pp. 231-35, 240).

          At the impartial hearing held on March 14, 2005 and March 24, 2005, petitioners raised the following issues: 1) that respondent failed to properly notify petitioners of the student’s disciplinary change of placement pursuant to 8 NYCRR 201.7(a) of the Regulations of the Commissioner of Education; 2) that respondent improperly changed the student’s placement to an IAES; 3) that the disciplinary change of placement to an IAES for 43 days was improper; 4) that the CSE’s determination that there was no nexus between the student’s alleged behavior and his disability was without factual basis and, therefore, improper; 5) that the superintendent’s involuntary transfer of the student to an IAES as a disciplinary penalty was illegal; and 6) that the student was denied a FAPE and is entitled to educational services missed from January 5, 2005 to March 15, 2005 (IHO Decision, p. 3).  At the impartial hearing, respondent asserted that there is a dispute concerning the student’s pendency placement, but that the CSE’s manifestation determination was proper, the IAES placement was appropriate, respondent satisfied its obligation to provide the student with instruction during his suspension and respondent did not violate any of the student’s substantive rights (IHO Decision, pp. 3-4). In his decision, the impartial hearing officer determined the pendency placement to be the student’s June 1, 2004 IEP as revised in September 2004, but found that the issue of pendency was moot, concluding that the student’s IAES placement had expired within the 45 day limitation imposed by 8 NYCRR 201.7(e) (IHO Decision, pp. 5-6).  The impartial hearing officer further determined that the CSE’s finding that the student’s misconduct was not a manifestation of his disability was proper (IHO Decision, pp. 6-7).  The impartial hearing officer also found that the CSE failed to determine that the IAES was appropriate, failed to determine which services were necessary to enable the student to progress, and did not fully satisfy its obligation to provide instruction to the student during his suspension (IHO Decision, pp. 7-10).  The impartial hearing officer ordered the CSE to convene to conduct a review of the instruction and services that should have been provided to the student and to include in the student’s next IEP the missed services and instruction for the balance of the current school year and in future school years (IHO Decision, p. 10).

           On appeal, petitioners request that the impartial hearing officer’s decision be modified to include findings that: 1) the student’s proper placement is the current IEP program; 2) respondent violated petitioners’ rights by failing to give proper notice of proceedings and by attempting a disciplinary transfer of the student; 3) respondent is precluded by state law from effecting a disciplinary placement and transfer of the student from his current IEP placement; 4) the IAES placement of the student was improper; 5) the student’s placement in an IAES setting for more than 10 days was improper; 6) the student was denied a FAPE during the period of suspension until proper pendency placement; and 7) the impartial hearing officer improperly precluded petitioners’ right to fully cross-examine respondent’s superintendent of schools regarding the disciplinary transfer of the student.

           On cross-appeal, respondent requests that the impartial hearing officer’s decision be modified to include findings that:  1) any violations of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1400 et. seq.)³ by respondent were “procedural” violations and did not constitute substantive violations of the IDEA; 2) the loss of educational services to the student was caused by petitioners’ refusal to permit the student to avail himself of services offered by respondent; and 3) that the IAES selected by respondent was appropriate and would allow the student to appropriately progress in the general education curriculum and advance towards achieving the goals in his IEP and that, by making such services available to the student during the term of his suspension, respondent satisfied its obligation to provide special education services to the student during his suspension.

            At the outset, a jurisdictional matter must be addressed.  In their request for an impartial hearing, petitioners state that an appeal with the Commissioner of Education was filed. That appeal is still pending. Education Law § 3214(3)(c) sets forth due process hearing procedures for the suspension of a pupil in excess of five school days (i.e. “superintendent’s hearing”).  An appeal lies from the decision of a superintendent to the board of education (N.Y. Educ. Law § 3214[3][c][1]). An appeal from the determination of the board of education is within the jurisdiction of the Commissioner of Education pursuant to Education Law § 310.  The jurisdiction of a State Review Officer is limited by Education Law § 4404(2) to the review of determinations made by impartial hearing officers appointed pursuant to Education Law § 4404(1), including those determinations involving issues arising under Education Law § 3214(3)(g).  Petitioners’ disputes with determinations made from respondent’s superintendent’s hearing, which includes the determination of guilt and the penalty of suspension imposed under Education Law § 3214(3)(c), are not properly before me.  Moreover, the involuntary transfer provisions of Education Law § 3214(5) apply only to a pupil who has not been determined to be a student with a disability or a student presumed to have a disability for discipline purposes.  The Commissioner of Education has jurisdiction over petitioners’ claim that the transfer of the student was a disciplinary penalty (Appeal of T.C., 44 Ed. Dept. Rep. ___, Decision No. 15,186 [March 7, 2005]).   As such, I am constrained to dismiss petitioners’ claims that their son was not guilty of misconduct and impermissibly transferred.

            I will first consider petitioners’ claims pertaining to the determinations of the impartial hearing officer regarding the CSE’s manifestation determination and the CSE’s determination of the IAES and services.

            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 had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). Not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  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]), 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]).  As for the program itself, the Second Circuit has observed that '"for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]; see Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]).  This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

            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. 04-053; 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 (FBA) and implement a behavioral intervention plan (BIP) (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]).

 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]; Application of the Bd. of Educ., Appeal No. 03-075).

          A superintendent of schools, either directly or upon recommendation of a hearing officer designated to conduct a superintendent's hearing, may order the change in placement of a student with a disability to an appropriate IAES, to be determined by the CSE, for up to 45 days, where the student knowingly possesses or uses illegal drugs (20 U.S.C. § 1415[k][1][A][ii][II], [k][3][A]; 34 C.F.R. § 300.520[a][2][ii]; 8 NYCRR 201.7[e]).

          Federal and state law provide that, when a student is removed to an IAES, that the new placement and services must be determined by the CSE (or “IEP” team) and:

(1) Be selected so as to enable the child to continue to progress in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the child's current IEP, that will enable the child to meet the goals set out in that IEP, and

(2) Include services and modifications to address the behavior (which forms the basis for placement in the IAES) that are designed to prevent the behavior from recurring.

(20 U.S.C. § 1415[k][3][B]; 34 C.F.R. § 300.522[b]; 8 NYCRR 201.10[d]).

            The impartial hearing officer decided that the CSE properly determined that the student’s misconduct was not a manifestation of his disability. On this issue, the impartial hearing officer noted that, as part of the CSE determination, the IEP services and goals and objectives had been reviewed and that CSE members familiar with the student’s “mild learning disability” noted that he never had any difficulty understanding school rules or conforming his behavior to the rules. Moreover, he determined that the documentary and testimonial evidence supports the conclusion of the CSE (Dist. Ex. 3; Joint Ex. 2; Mar. 14, 2005 Tr. pp. 17, 18, 79, 105, 129, 130, 131, 191-95; Mar. 24, 2005 Tr. p. 139). I concur that based on the hearing record, if petitioners’ son had engaged in the misconduct alleged, the CSE properly complied with the requirements of 8 NYCRR 201.4(c) and determined that the alleged behavior was not a manifestation of his disability.

            The impartial hearing officer also found that that the CSE did not properly determine the IAES or services to be provided at the IAES. On appeal, petitioners seek modification of factual findings made by the impartial hearing officer pertaining to these issues but do not request any modification in the relief awarded by the impartial hearing officer’s decision.  I have reviewed the decision of the impartial hearing officer and have reviewed the record and find that the relief awarded is favorable to petitioners. 

            Petitioners request that I modify the impartial hearing officer’s decision to include findings that the student’s proper placement is the current IEP program, that the IAES placement of the student was improper, and that the student was denied a FAPE during the period of suspension before the pendency determination.  However, these findings have already been made by the impartial hearing officer by his determinations that the student was denied a FAPE because the CSE failed to determine that the IAES was appropriate, failed to determine which services were necessary to enable the student to progress and did not fully satisfy its obligation to provide instruction to the student during his suspension (see IHO Decision, pp. 5-10). 

            "[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]).  A party aggrieved by an impartial hearing officer's decision may appeal to a State Review Officer (see 34 C.F.R. § 300.510[b][1]; see 8 NYCRR 200.5[j][1]; Mackey v. Bd. of Educ., 386 F. 3d 158, 160 [2d Cir.  2004]; Application of a Child with a Disability, Appeal No. 05-044; Application of the Bd. of Educ., Appeal No. 04-016; Application of a Child with a Disability, Appeal No. 02-007; Application of a Child with a Disability, Appeal No. 99-029).  In the instant case, the impartial hearing officer found that the CSE did not provide the student a FAPE because it failed to determine that the IAES was appropriate, failed to determine which services were necessary to enable the student to progress and did not fully satisfy its obligation to provide instruction to the student during his suspension.  For the reasons stated above, I find no basis to modify these findings as petitioners request.  Moreover, the impartial hearing officer was within his authority when he ordered the CSE to convene to conduct a review of the instruction and services that should have been provided to the student and include in the student’s next IEP the missed services and instruction for the balance of the current school year and in future school years (see Bd. of Educ. v. Muñoz, 16 A.D.3d 1142 [4th Dept. 2005].  Petitioners do not request that this relief be modified and upon reviewing the record, I do not find that petitioners are aggrieved by the decision of the impartial hearing officer pertaining to these issues. 

            As for respondent’s cross-appeal, respondent contends that any violations of the IDEA were procedural violations that did not constitute substantive violations of the IDEA, that the loss of educational services to the student was caused by petitioners’ refusal to have the student avail himself of services offered by respondent and that the IAES selected by respondent was appropriate and respondent satisfied its obligation to provide special educational services to the student during his suspension. 

           After reviewing the record, I concur with the impartial hearing officer’s finding that the CSE did not review the IAES in a meaningful way to ensure that a FAPE would be provided to the student (IHO Decision, p. 8; see Mar. 14, 2005 Tr. pp. 88-89; see Parent Exs. B, D; see 20 U.S.C. § 1415[k][3][B]; 34 C.F.R. § 300.522; 8 NYCRR 201.10[d][e]). With that said, I agree to some extent with respondent that petitioners’ actions impeded the delivery of some services, however, I concur with the impartial hearing officer that “although the District did make significant efforts to provide [the student] with instruction since the time of the suspension,” these efforts did not cure respondent’s failure to provide proper CSE review of the IAES placement and services which ultimately resulted in missed services and instruction.

           I have considered the parties’ remaining contentions and I find them to be without merit.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.