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 Bay Shore Union Free School District
Deborah Rebore, Esq., attorney for petitioner
Ingerman Smith, L.L.P., attorney for respondent, Christopher Venator, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which ordered that the Board of Cooperative Educational Services (BOCES) screen petitioner's son for an appropriate placement. The appeal must be sustained in part.
Petitioner's son was seven years old and attending first grade at respondent's Mary G. Clarkson Elementary School (Clarkson) at the commencement of testimony at the impartial hearing on May 20, 2005 (Tr. p. 36; see Dist. Ex. 8 at p. 1).1 The child has been diagnosed with an attention deficit hyperactivity disorder (ADHD) and an oppositional defiant disorder (ODD) (Dist. Ex. 6 at p. 2; see also Parent Ex. H at pp. 3, 10). He has also been diagnosed with a tic disorder not otherwise specified (Parent Ex. A) and has language-based learning disabilities including a reading disorder and a mixed expressive-receptive language disorder (Parent Ex. H at p. 10). The child has a history of impulsive and aggressive behaviors in school dating back to preschool (Dist. Ex. 1 at pp. 4, 6, 9, Dist. Ex. 4 at pp. 1, 3, 4, Dist. Ex. 5 at pp. 1, 5, Dist. Ex. 6 at p. 1). During the period September 2004 through February 18, 2005, petitioner's son was formally suspended seven times and sent home from school early or "informally" suspended on seven other occasions (see Dist. Ex. 9 at p. 1, Dist. Ex. 13; Tr. p. 102).2 His eligibility for special education and classification as a child with an other health-impairment (see 8 NYCRR 200.1[zz]) are not in dispute.
During the 2002-03 school year the child attended an integrated preschool class with a student to staff ratio of 10:1+1 and received related services of speech therapy, occupational therapy, counseling and parent training (Dist. Ex. 4 at p. 1). He was also assigned a 1:1 aide (id.; Tr. p. 362). For the 2003-04 school year the child attended a 12:1+1 self-contained kindergarten class at Clarkson (Tr. pp. 41-42). The child's kindergarten teacher described the child as honest and loving (Tr. p. 357) but also noted that he would have outbursts and talk out loud (Tr. p. 359). She testified that the child was very aggressive toward peers and suggested that his greatest challenges related to behavior and anger management (Tr. pp. 357, 359). In November 2003 respondent added group counseling to the child's individualized education program (IEP) (Tr. p. 161). Between February and October 2004 the child was placed on three different medications to address his ADHD symptomatology (Parent Ex. H at p. 3).
On May 10, 2004, respondent's Committee on Special Education (CSE) convened for the child's annual review for the 2004-05 school year (Dist. Ex. 8 at p. 1). The CSE determined that the child continued to be eligible for special education and related services as a child with an other health-impairment (Tr. p. 43). For the 2004-05 school year the CSE recommended that the child continue at Clarkson and be placed in a 12:1+1 special class with one individual and one group counseling session per week (Dist. Ex. 8 at p. 1). The child's IEP indicated that his classroom behavior seriously interfered with instruction, that he had severe problems relating appropriately to adults and/or peers, that he was not able to work cooperatively with peers, that he was noncompliant with adults, that he often argued with others and that he had difficulty accepting limits and responding appropriately to school discipline (Dist. Ex. 8 at p. 3). The IEP further indicated that the child required intensive supervision to function in the educational setting and "a great deal of behavior management strategies" (id.). The CSE discussed whether the child required a learning environment that was smaller and more structured than respondent's 12:1+1 class (Tr. pp. 43-44). The parents reportedly became angry at the suggestion of an alternative placement and the CSE decided to recommend continued monitoring and additional support (Tr. pp. 44-45). Although a behavior modification program is attached to the child's IEP, petitioner disputes that this was discussed at the CSE meeting or that a copy was provided to him with the IEP (Tr. pp. 45-46, 365-66; see Dist. Ex. 8 at pp. 7-8). Respondent did not conduct a functional behavioral assessment (FBA) prior to its development (Tr. p. 75).
Petitioner's son began the 2004-05 school year in a 12:1+1 self-contained first grade classroom at Clarkson (Tr. pp. 179-80). According to the classroom teacher, at the beginning of the school year she implemented a behavior modification plan for her entire class and also employed the behavior modification plan attached to the child's IEP (Tr. pp. 182-83, 216-18). On September 28, 2004, respondent suspended the child for two days, for stomping on a teacher's foot and calling her stupid (see Dist. Ex. 13 at p. 1). In a letter originally dated September 23, 2004, and apparently re-sent to the parents on October 4, 2004, respondent requested consent to conduct a reevaluation of the child (Dist. Ex. 10). The parents refused to provide consent for the reevaluation (Tr. p. 46; see Dist. Ex. 10). On October 12, 2004, the child's teacher modified her classroom behavior plan to allow the child to receive primary reinforcers on a more frequent basis (Dist. Ex. 9 at pp. 1, 3; Tr. pp. 183, 187). On October 19, 2004, respondent suspended the child for two days, reportedly for picking up a classmate by the back of his shirt and pushing him into a file cabinet face first (see Dist. Ex. 9 at p. 3, Dist. Ex. 13 at p. 2; Tr. pp. 188-89).
Subsequent to the October 19, 2004 incident the school psychologist conducted an FBA of the child dated October 27, 2004 (see Dist. Ex. 11). During a shared reading activity the child was observed to chant loudly, call out answers, and interrupt children who were called on by the teacher (Dist. Ex. 11 at p. 1). As the class changed activities the child continued to engage in disruptive behaviors including yelling responses over other children, yelling out inappropriate comments, and pretending to shoot classmates with his finger (Dist. Ex. 11 at p. 2). While the class was eating lunch in the classroom the child repeatedly threatened other children with violent acts (Dist. Ex. 11 at p. 3). The school psychologist identified numerous conditions that precipitated the child's inappropriate behaviors (Dist. Ex. 11 at pp. 3-4). These included unstructured activities, transitions, directives given by an adult or authority figure, independent work or tasks requiring sustained effort, and settings which required the child to share adult attention (id.). The school psychologist indicated that the perceived function of the child's inappropriate behavior was power and control, defiance of authority, attempts to gain attention, expression of anger, intimidation, and escape/avoidance (Dist. Ex. 11 at p. 4). She identified calling out and inappropriate comments to peers and adults; defiance of authority figures; and menacing, threatening and aggressive behavior toward peers as specific target behaviors (id.).
On November 4, 2004, respondent suspended the child for one day, reportedly for attempting to hit a classmate with a mallet (Dist. Ex. 13 at p. 3). On November 9, 2004, the child was suspended for one day for elbowing a classmate in the face (Dist. Ex. 13 at p. 4). On that same date the CSE met and reviewed the FBA (Dist. Ex. 12; Tr. pp. 48-49) and recommended obtaining the services of a behavioral consultant (Dist. Ex. 12; Tr. pp. 50-51). Between November 9 and December 6, 2004, respondent sent the child home from school early four times, but did not formally suspend him (Dist. Ex. 9 at p. 1). Subsequent to its November 9, 2004 meeting, respondent hired a consultant who initially assisted the classroom and special area teachers with tightening the structure of the class (Tr. pp. 51-52, 277-78). During this period, the classroom teacher continued to adjust the child's behavior plan, however, the modifications were not successful (Dist. Ex. 9 at pp. 1, 3, 5; Tr. pp. 194-95, 200-202, 246-48). On December 7, 2004, respondent suspended the child for a day, for punching a classmate (Dist. Ex. 13 at p. 5).
In December 2004, at the request of his parents, respondent discontinued the child's individual and group counseling sessions and advised the consultant that he would no longer be working with the child (see Dist. Ex. 16 at p. 1; Tr. pp. 54, 55, 305, 306, 372-73). The child's father requested that the services be stopped (Tr. pp. 372-73). The record reflects that counseling services were later resumed and that the consultant was subsequently involved in the development of the child’s program (see Tr. p. 154; Dist. Exs. 15, 18).
On December 20, 2004, respondent suspended the child for five days, for punching and kicking another classmate and using inappropriate language (Dist. Ex. 13 at p. 6; Tr. pp. 381-83, 416-19). The CSE convened on January 11, 2005, and determined that there was a nexus between the child's behavior and his classification, as the behavior under review was considered impulsive in nature (Dist. Ex. 15; Tr. pp. 52-54; see also Dist. Ex. 16 at pp. 2-3). At that meeting, the CSE also reviewed and approved a behavioral intervention plan (BIP) that had been developed by respondent's consultant (see Dist. Ex. 15; Tr. pp. 55-56; see also Dist. Ex. 17). In addition to the BIP the CSE recommended a 1:1 aide to provide the child with support throughout the school day (Dist. Ex. 15; Tr. pp. 56-57, 253, 406).
Petitioner's son received home instruction from January 4, 2005, until he returned to school with a 1:1 aide on February 7, 2005 (see Dist. Ex. 9 at p. 10; Tr. pp. 57-58, 80-82, 384). The BIP developed by respondent's consultant was implemented on February 7, 2005 (see Parent Ex. D; Tr. p. 254). On February 18, 2005, respondent suspended the child for five days, reportedly for throwing a chair at his 1:1 aide (Dist. Ex. 9 at p. 1, Dist. Ex. 13 at p. 7; Tr. pp. 104-106). Following that incident, the child remained on home instruction until May 2, 2005, when he returned to Clarkson with a different 1:1 aide (Tr. pp. 64, 88, 106, 208; see March 29, 2005 Tr. pp. 6, 7, 18, 19, 20; April 15, 2005 Tr. p. 3).
The CSE met on February 28, 2005, and discussed the child's placement (Tr. pp. 59-61; see Dist. Ex. 18). The record is not clear as to whether the CSE recommended that petitioner's son be placed at BOCES in a 6:1+1 class or that he be screened by BOCES for placement in an appropriate class, such as a 6:1+1 class (see Tr. pp. 61-64, 65-66, 67, 284-85; Dist. Exs. 18, 20, 21 at p. 3; see also Pet. ¶ 73, Answer ¶ 23). During the CSE meeting, petitioner did not agree to his son's attendance at BOCES (Tr. p. 62; see also Tr. p. 389). Respondent did not request parental consent for it to make an application to BOCES (Tr. p. 64). Material with respect to the child was not forwarded to BOCES and the child was not screened by BOCES for an appropriate placement (Tr. pp. 64-65, 66; Dist. Ex. 19; see also March 29, 2005 Tr. pp. 5-6). I note also that at the time the CSE discussed BOCES, the most recent psychological evaluation of the child had been conducted in May 2002 (see Dist. Ex. 1 at p. 6).
On March 18, 2005, respondent requested an impartial hearing (March 29, 2005 Tr. pp. 4-5). The impartial hearing officer held a prehearing conference (see 8 NYCRR 200.5[i][xi]) on March 29, 2005 (March 29, 2005 Tr. pp. 4-5). In relevant part, the prehearing conference dealt with the amount of services being received by the child, his reentry into respondent's school, and the need for updated evaluations (March 29, 2005 Tr. pp. 7-11, 12-15, 17-19, 20-23). On April 15, 2005, the impartial hearing officer placed on the record the parties' agreement that, among other things, the child would return to Clarkson on May 2, 2005, that the child would be independently evaluated at New York University, and that the impartial hearing would begin thereafter (April 15, 2005 Tr. pp. 3-5).
The impartial hearing officer heard testimony on May 20, May 23, June 20, June 23, and July 20, 2005. During May 2005, staff from the Child Study Center at New York University (NYU) conducted an independent neuropsychological and educational evaluation, as well as a classroom observation of the child (see Parent Exs. H, I). The evaluating neuropsychologist concluded that in addition to ADHD and ODD the child had language-based learning disabilities that interfered with his academic progress (Parent Ex. H at p. 10). He diagnosed the child as having a reading disorder and a mixed expressive-receptive language disorder (id.). To address the child's needs the neuropsychologist recommended that the child receive more individualized remediation in early reading development and expressive language (Parent Ex. H at p. 11). He also recommended that the child receive the assistance of a reading specialist (id.).
The neuropsychologist concluded that two separate but related issues affected the child's behavior (Parent Ex. H at p. 10). First, the child exhibited hyperactive, impulsive, and mildly aggressive behaviors that occurred regularly (id.). The neuropsychologist noted that these behavioral difficulties responded to proper behavioral intervention (Parent Ex. H at p. 11). Second, the child exhibited more severe aggressive behaviors that occurred less frequently (Parent Ex. H at p. 10). The neuropsychologist reported that during these episodes the child appeared to lose control of his emotions and behavior (id.). While it would not explain all of the child's serious behaviors, he identified as a precipitating factor or "antecedent" for more aggressive behaviors, situations where another person entered the child's personal space (Parent Ex. H at p. 12).
The neuropsychologist opined that given the student’s then current level of behavioral functioning within the classroom, "his needs would be more appropriately served in the context of a more structured environment that more heavily incorporates behavior modification techniques into the classroom and other activities." The neuropsychologist suggested multiple interventions to target the child's more aggressive behaviors. In particular, he recommended further consultation regarding medication (Parent Ex. H at p. 10), a specific behavior modification training program called Parent-Child Interaction Therapy for the child's one-to-one aide and for his parents (Parent Ex. H at pp. 10, 11, 12; see also Tr. pp. 475-79), and placement in an environment more suited to intervene in his intermittent, more aggressive behaviors (Parent Ex. H at p. 11). The neuropsychologist also recommended ways to improve the child's BIP and his management within the classroom (see Parent Ex. H at pp. 11, 12; Tr. pp. 455-60, 468-75). More specifically, he recommended increased consistency in the use of praise for appropriate behavior (Parent Ex. H at p. 12; see also Tr. pp. 468-69), the use of more specific or "labeled" praise (id.; see also Tr. pp. 469-70), "catching" the child behaving appropriately (id.; see also Tr. pp. 470-71), "reflecting back" on how the child might feel when engaged in difficult tasks (id.; see also Tr. pp. 471-73), increasing the use of prompts (id.; see also Tr. pp. 473, 455-58), and improving time-out techniques which were already being "implemented properly" (id.; see also Tr. pp. 473-75). The neuropsychologist also recommended that staff working with the child consider adding to his behavior chart some of his more frequent but less aggressive behaviors such as teasing, name-calling, or pushing that were deemed to be problematic among the behaviors most affecting his ability to learn and remain in the classroom (Parent Ex. H at p. 11; Tr. pp. 458-60, 465; see also Parent Exs. D, F; Dist. Ex. 11).
The impartial hearing officer issued a decision dated September 11, 2005. Among other things, she concluded that all of the witnesses had testified that respondent's elementary school was not an appropriate placement for the child and ordered that BOCES screen petitioner's son for an appropriate placement (IHO Decision, p. 21). Petitioner appeals the decision of the impartial hearing officer and requests that the child be provided with the opportunity to remain in the 12:1+1 class at Clarkson with appropriate supports and services, such as those recommended by the independent evaluator. I note here that the record does not indicate whether respondent's CSE has subsequently reviewed and considered the results of the NYU neuropsychological and educational evaluation (see 8 NYCRR 200.4[f]; see also 200.4[b] and [f]).
The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487)3 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]; Schaffer v. Weast, 546 U.S. ___; 126 S. Ct. 528, 531 ). 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[D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).4 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 ). 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]). In evaluating the substantive program developed by the CSE, 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 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998][citation and internal quotation omitted]). To do this, the record must be examined for "any objective evidence indicating whether the child is likely to make progress or regress under the proposed plan" (Grim, 346 F.3d at 383 [citation and internal quotation omitted]; 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][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]). "[S]pecial education and related services must be provided in the least restrictive setting consistent with a [student's] needs" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]).
Both respondent and petitioner agree that the child's current program at Clarkson is not appropriate for him (see Tr. pp. 33, 62, 360, 389-92, 427-28, 442-43; Pet. ¶ 6). This is also the opinion of the independent evaluator (see Tr. pp. 479-80; see also Dist. Ex. H at pp. 11-12). Although the neuropsychologist testified that the child's current program could be improved by the program modifications he recommended in his evaluation (see Tr. pp. 457-63, 465-78, 479-80; see also Parent Ex. H at pp. 11-12), he also opined that a more structured environment than the elementary school the child was attending was appropriate for the child (see Tr. pp. 485-86; Parent Ex. H at p. 11; see also Tr. pp. 479-80).
The impartial hearing officer found appropriate respondent’s request that the child be screened to determine whether an appropriate program and placement could be offered at BOCES. Upon review of the hearing record, I find no reason to modify the impartial hearing officer’s determination in this regard. Furthermore, the record does not reveal whether a CSE meeting was held to consider the NYU evaluation. Therefore, I will order that CSE meeting be held to consider both the NYU evaluation and the results of the BOCES referral to determine the appropriate program and placement for the child. Having made the above determination, it is not necessary that I consider petitioner's remaining contentions.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that a CSE meeting be held to consider both the NYU evaluation and the results of the BOCES referral, along with any other appropriate evaluative data, to determine the appropriate program and placement for the child.
1 The transcript of proceedings includes a March 29, 2005 prehearing conference (referenced as "March 29, 2005 Tr."), an April 15, 2005 agreement of the parties set forth on the record and so ordered by the impartial hearing officer (referenced as "April 15, 2005 Tr."), and hearing testimony on May 20, May 23, June 20, June 23, and July 20, 2005 (referenced as "Tr.").
2 As described in the record, District Exhibit 9 is anecdotal notes relating to the child during the 2004-05 school year prepared by his first grade teacher (Tr. pp. 18-19, 179-80, 181).
3 On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEIA], Pub. L. No. 108-446, 118 Stat. 2647). Citations contained in this decision are to the statute as it existed prior to the 2004 amendments. The relevant events in the instant appeal took place prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEIA do not apply.
4 The term "free appropriate public education" means special education and related services that--
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and,
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.
20 U.S.C. § 1401(8); see also 34 C.F.R. § 300.13; 20 U.S.C. § 1414[d].