05-096

          Petitioner appeals from the part of the decision of an impartial hearing officer which determined that the student’s individualized education program (IEP) was properly implemented, that respondent did not improperly fail to conduct a functional behavioral assessment (FBA) or implement a behavioral intervention plan (BIP), and which declined to direct respondent to determine that the student’s behavior was a manifestation of the student’s disability. The decision also determined that the student was improperly suspended and ordered his immediate reinstatement to his former school program and granted respondent’s request to reevaluate the student and conduct a manifestation determination review (MDR).   The appeal must be sustained in part.

         At the time of the June 14, 2005 expedited due process hearing¹ the student was 14 years old and placed at a suspension center where he allegedly was not receiving special education services (Tr. p. 7).  Prior to his suspension, the student had been enrolled in a general education program at I.S. 232 in Brooklyn for the 2004-05 school year pursuant to an IEP developed on September 27, 2004 by a Committee on Special Education (CSE) (Tr. p. 7; Parent Ex. A).  His IEP provided for placement in a general education program with special education teacher support services (SETSS), related services of counseling and speech-language therapy, and testing accommodations (Parent Ex. A). The CSE noted that the student’s social problem-solving skills remained weak but concluded that his behavior was age appropriate and his social-emotional management needs could be addressed in the classroom with the additional support of counseling (Pet. Ex. A at p. 5). At the time the IEP was formulated, an FBA² had not been conducted nor was a BIP³ developed. The student’s current eligibility for special education programs and services as a student with a learning disability (LD)⁴ is not in dispute in this proceeding.

          The record contains limited information regarding the student’s early educational history. In July 2000, after the conclusion of the student's third grade school year respondent conducted an initial educational evaluation which had been requested by petitioner (Parent Ex. D).  The evaluator reported that the student's academic performance was "within grade norms" with the exception of reading comprehension and writing skills (Parent Ex. D at p. 3). Administration of the Developmental Test of Visual-Motor Integration yielded a standard score of 106, placing the student's performance in the 65th percentile, but the evaluator reported that the student exhibited weaknesses in visual integration and spacing (id.)  A "part-time" remedial classroom was recommended to address the student's academic weaknesses (id.).

           A psychological evaluation of the student was conducted on August 4, 2000 (Parent Ex. C).  Administration of the Wechsler Intelligence Scale for Children-Third Edition (WISC-III) to the student in August 2000 yielded a verbal IQ score of 87, a performance IQ score of 75 and a full scale IQ score of 79 which was in the upper limits of the borderline range of intellectual functioning (Parent Ex. C at p. 2).  The psychologist's report noted that the student presented with language processing difficulties, difficulty attending to visual details, and weaknesses in spatial perception and organization (Parent Ex. C at p. 3).  The psychologist also reported that the student required additional time and guidance to process auditory and some visual information (id.).  The psychologist further noted that the student appeared to exhibit "underlying feelings of sadness and anger" and may be unsure of how to approach his difficulties (Parent Ex. C at pp. 4-5).  The psychologist's recommendations included part-time academic remediation, group counseling, a speech-language evaluation and private psychotherapy (Parent Ex. C at p. 5).

          Updated psychoeducational testing of the student was conducted by respondent as part of a triennial review of the student in September 2003, when the student was twelve years, nine months old and in the seventh grade (Parent Ex. B).  At that time the student was receiving an unspecified amount of SETSS and also receiving speech-language therapy twice weekly in a group of five.  The psychologist's report noted that while in sixth grade the student presented with behavioral problems including aggression directed at peers and verbal aggression directed at adults.  The report noted that the student cut classes that year and "acted out" when presented with reading and writing tasks.  The student also received private psychotherapy.

         Re-administration of the WISC-III as a part of the psychoeducational testing in September 2003 yielded a verbal IQ score of 97 and full scale IQ score of 84, which placed the student in the low average range of cognitive functioning (Parent Ex. B at p. 2). The student's performance IQ score of 74 was noted by the evaluator to represent a significant discrepancy between his verbal and performance scores (id.). The student's performance on tasks measuring verbal abstract reasoning and receptive language skills indicated an improvement in these areas, which the evaluator opined may have been the result of speech-language therapy (Parent Ex. B at p. 3).  Spatial perception and organization skills remained significant areas of weakness (id.).  The psychoeducational evaluation report indicated that the student's performance on tasks measuring cause-effect relationships was below age expectations and that he may take longer than peers to process social situations, which may negatively impact his social functioning (id.).

          A September 2003 administration of the Wechsler Individual Achievement Test-Second Edition (WIAT-II) yielded standard (and percentile) composite scores of 86 (18) in reading and 89 (23) in written language (Parent Ex. B at p. 4).  The evaluator noted that the student's standard composite score of 90 in oral language indicated performance slightly below age expectancy (Parent Ex. B at pp. 4-5).  The evaluator suggested that the student might need additional time, when compared with other students his age, to complete reading and writing tasks (Parent Ex. B at p. 6).

           Analysis of September 2003 projective testing of the student suggested that his social problem-solving skills were weak, and his judgment could lapse at times (Parent Ex. B at p. 5). He was also described in the psychologist's report as "anxious…with underlying feelings of anger" (id.). Feelings of inadequacy were identified in relationship to academic and social concerns (Parent Ex. B at p. 6). Recommendations from the psychologist were consistent with prior evaluation reports, with the additional suggestion that the student may benefit from after school sport activities (see id.). 

         Turning to events involving the student's removal from his then current placement, I note that respondent sent petitioner a "special education suspension notice," dated May 5, 2005, stating that the student was suspended from school for five days by the regional superintendent, effective May 6, 2005, because the student allegedly struck a teacher with a pencil (Parent Ex. E).⁵  Neither the notice nor the record provide further details describing the alleged misconduct.  The suspension hearing was scheduled for May 12, 2005 but was adjourned and rescheduled for June 13, 2005 (Answer ¶ 157; Reply ¶ 4).  There is no indication in the sparsely developed hearing record that the student was returned to his general education program at I.S. 232 at any time prior to the expiration of the 2004-05 school year (Pet. ¶ 96; Answer ¶ 96).

          Petitioner requested an expedited due process hearing by letter dated June 3, 2005, stating that the student had been suspended on May 5, 2005 and excluded from his regular program for more than ten school days (Pet. Ex. G).  Petitioner requested the following: immediate reinstatement of her son to his general education program at I.S. 232 or another school acceptable to her; that respondent be directed to conduct an FBA and to create a BIP; and that the conduct which resulted in the student's suspension be deemed a manifestation of his disability (id.).  The expedited due process hearing was held on June 14, 2005 (id.).⁶  The impartial hearing officer issued his decision on July 20, 2005. ⁷

          At the expedited due process hearing, respondent’s representative stated "we have a student that is not in school at this time…there was no MDR conducted…[and] that the district feels strongly that an MDR should be conducted…and probably a reevaluation of the student" (Tr. p. 13).  The parties agreed to reinstate the student to his program at IS 232 (Tr. pp. 28, 30) and agreed that an MDR should be conducted (Tr. p. 30).⁸

          On appeal, petitioner asserts that the impartial hearing officer erred in not determining the student’s conduct was a manifestation of his disability and erred in finding the student's IEP was appropriate or had been properly implemented.  Petitioner further asserts that respondent failed to conduct an FBA and failed to create a BIP within ten school days of excluding the student from school and that respondent violated the student’s procedural rights by failing to conduct a timely MDR, failing to give notice of its actions in changing the student’s placement, and failing to comply with the agreements made at the hearing.

         The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487)⁹ is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528 [2005]).  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[8]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).¹⁰  The IDEA provides that all children with disabilities residing in the State between the ages of 3 through 21, inclusive, have the right to FAPE, including children with disabilities who have been suspended or expelled from school (20 U.S.C. § 1412 [a][1][A]; see also 34 CFR § 300.121 and 8 NYCRR 201.10).  A FAPE is offered to a student when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) 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]).  While school districts are required to comply with all IDEA procedures, 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]).  A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, or seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; 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]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). 

         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 an 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 to impose a suspension that constitutes a disciplinary change in placement (8 NYCRR 201.4[a][3]; Application of a Child with a Disability, Appeal No. 05-055; Application of the Bd. of Educ., Appeal No. 04-053; Application of the Bd. of Educ., Appeal No. 04-006; Application of the Bd. of Educ., Appeal No. 03-075). In addition, either before or not later than ten business days after removing the child for more than ten consecutive school days, the CSE must convene to develop an assessment plan to address the behavior that resulted in the suspension, if no functional behavioral assessment had previously been done (20 U.S.C. §1415[k][l][B][I]; 34 C.F.R. §300.520[b][l][i]; 8 NYCRR 201.3[a][1]; Application of a Child with a Disability, Appeal No. 02-064). As soon as practicable after developing the plan, and completing the assessments required by the plan, the CSE must meet to develop appropriate behavioral interventions to address the behavior that resulted in the removal (34 C.F.R. §300.520[b][2]; 8 NYCRR 201.3[a][1]). 

         Additional services may be provided to make up for educational services not received during a student's suspension.  State Review Officers have awarded equitable relief in the form of additional educational services to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Application of the Bd. of Educ., Appeal No. 03-075; Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030).

        Based upon my review of the record, I find that the student was suspended and subjected to a disciplinary change placement without being afforded due process protections required by federal and state law. Without making any determination as to the appropriateness of the MDR allegedly conducted on June 21, 2005, it appears that the student was removed from his general education placement and put in a suspension center from May 6, 2005 to at least June 21, 2005 (Pet. Ex. F. ¶ 34) without a manifestation determination having been made.  Moreover, an FBA was not conducted nor a BIP developed in a timely manner after the suspension. Indeed, it appears, based upon respondent's own assertion, that although the student remains within respondents jurisdiction, although at a different school for the 2005-06 school year (Reply ¶ 18), that no FBA or BIP were ever developed by the CSE because his September 27, 2004 IEP remains his current IEP (Answer ¶ 155).¹¹ Lastly, although entitled to a FAPE during suspension, petitioner asserts that that the student did not receive appropriate special educational services during the time he was suspended and respondent asserts that it lacks information to dispute this (Tr. p. 7; Petition ¶ 33; Answer ¶ 33).

        The record reveals that that nature and number of procedural violations committed by petitioner, in addition to its failure to implement the student's September 27, 2004 IEP, resulted in a loss of educational opportunity (Werner, 363 F. Supp. 2d at 659), and denied educational benefits to petitioner's son (Arlington Cent. Sch. Dist., 2002 WL 31521158) and compromised the provision of a program reasonably calculated to provide educational benefits (Application of the Bd. of Educ., Appeal No. 03-075; Application of a Child with a Disability, Appeal No. 02-015).  I find that respondent did not comply with procedures for suspension and removal of a student with a disability (8 NYCRR Part 201), that the student did not receive appropriate services consistent with his 2004-05 IEP, and that the awarding of additional educational services is appropriate.  Accordingly, I will direct respondent to provide petitioner's son with additional services to allow him to make up work that he missed (see Bd. of Educ. v. Muñoz, 16 A.D.3d 1142 [4th Dep't 2005]; Application of a Child with a Disability, Appeal No. 05-055; Application of the Bd. of Educ., Appeal No. 03-075; Application of a Child with a Disability, Appeal No. 02-030; Application of a Child with a Disability, Appeal No. 00-006). However, the hearing record does not clearly indicate what additional services are needed to remedy the deprivation of services caused by the denial of a FAPE to this student during the course of his suspension.  Accordingly, I cannot determine from the record what additional services may be warranted in this case.  Therefore, I direct the CSE to reconvene to consider what additional services are necessary to make up for educational services not provided during the student’s suspension.  Once it is determined what provision of additional services is appropriate, then those services should be provided (Application of the Bd. of Educ., Appeal No. 04-016).

         I have considered petitioner’s remaining contentions, along with respondent's argument that the claim herein is moot, and I find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED, unless the parties otherwise agree, that within thirty days from the date of this decision, that the CSE ensure that a functional behavioral assessment of the student is conducted and that the CSE convene and develop an appropriate IEP for petitioners' son for the 2005-06 school year; and

IT IS FURTHER ORDERED, unless the parties otherwise agree, that within thirty days from the date of this decision, the CSE convene and determine what additional services are necessary to make up for the denial of a FAPE resulting from the failure to provide appropriate services to the student at the suspension center subsequent to his May 6, 2005 suspension, and ensure that the services are subsequently provided.