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 New York City Department of Education
Metropolitan Parent Center of Sinergia, Inc., attorney for petitioner, Lizabeth Pardo, Esq., of counsel
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Steven D. Weber, of counsel
Petitioner appeals from a decision of an impartial hearing officer which determined that the educational program, placement and classification recommendations made by respondent's Committee on Special Education (CSE) for his son for the 2006-07 school year were appropriate. The appeal must be dismissed.
At the time of the July 12, 2006 hearing, petitioner's son was eight years old and attending respondent's public school (P.S.) 144 for summer school (Tr. p. 14). He was initially classified as a student having a learning disability (Dist. Ex. 7); however, at a March 17, 2006 CSE meeting, his classification was changed to a student with an emotional disturbance (Dist. Ex. 22; see 8 NYCRR 200.1[zz]). His classification is in dispute in this appeal.
In September 2001, when the child was four years old, he was placed in a pre-kindergarten program at P.S. 160 (Dist. Ex. 10 at p. 2). In a December 2001 letter to respondent, petitioner requested that his son be "tested" by the CSE (Dist. Ex. 4). In January 2002, the child's case was closed (Tr. p. 11). Also in January 2002, the child was transferred from a full-day pre-kindergarten program to a half-day pre-kindergarten program (Dist. Ex. 5). He continued to attend P.S. 160 for kindergarten during the 2002-03 school year (id.).
The child attended first grade at P.S. 160 during the 2003-04 school year (id.). On November 18, 2003, the child’s mother submitted a referral to the CSE to determine whether her son needed special education (Dist. Ex. 6). On February 23, 2004, the CSE recommended Special Education Teacher Support Services (SETSS) two times per day, five days per week, with related services of speech and counseling (Dist. Ex. 7). A Type 3 recommendation was made to the CSE on May 13, 2004, requesting a more restrictive setting for the child because his behavior was interfering with his education and he was having difficulty transferring skills to the regular education setting (Dist. Ex. 8). It was noted that the child's work habits were poor and he demonstrated a general refusal to do work for the teacher (id.). As a result of the Type 3 recommendation, the CSE recommended that the child be placed in a 12:1 class, but the child's father refused the placement (Tr. pp. 11-12). The child's report card for the 2003-04 school year indicated that five conferences had been held with the parents (Dist. Ex. 10 at p. 3). It also indicated that the child had received marks of "Unsatisfactory" in all subjects, work habits, and personal and social development and that the child was late 64 times and absent 19 times (Dist. Ex. 10 at p. 2).
In September 2004, the child entered P.S. 40 for second grade (id.) where he continued to receive SETSS and speech and counseling (Tr. p. 12). A report to the parents indicated that the child rarely completed class work and that he was often disruptive (Dist. Ex. 9 at 1). The report further indicated that the child would be retained in the second grade (Tr. p. 14; Dist. Ex. 9).
In April 2005, at his mother's urging, the child was transferred to P.S. 144, where he was placed in a 12:1+1 special education class (Dist. Ex. 10). On June 17, 2005, after 44 days in his new placement at P.S. 144, a Type 3 recommendation was made to the CSE due to the child's behavior on the school bus and in the classroom (Dist. Ex. 11 at p. 1). The Type 3 recommendation indicated that the child was suspended from the bus on two occasions and that respondent's personnel requested support on the bus (id.).
The Type 3 recommendation further indicated that the child required "a therapeutic environment and more supervision than is currently available to him in his current program" (Dist. Ex. 11 at p. 2). Respondent's personnel requested a psychiatric evaluation (id.). The recommendation further stated that the child displayed a flat affect, was detached, disconnected, had difficulty distinguishing fact from reality, and displayed an inability to relate in a positive manner to his peers (id.).
For the 2005-06 school year, the child attended third grade at P.S. 144 in a 12:1+1 program, with related services of speech-language therapy and counseling (Dist. Ex. 13). On December 7, 2005, an independent psychoeducational evaluation of the child was conducted. The psychologist noted that despite her informal manner the child was unable to attain eye contact with her, and it was difficult to engage the child any conversation. The psychologist further noted that language processing difficulties were apparent. The child had difficulty remaining in his seat, and often worked while kneeling or climbing on his chair. Administration of the Wechsler Individual Achievement Test - Second Edition (WIAT-II) revealed that in word reading the child received a low average standard score of 85 (16th percentile). In reading comprehension the child achieved a below average standard score of 79 (8th percentile). In math computation the child achieved a low average standard score of 85 (16th percentile). The Wechsler Intelligence Scale for Children - Fourth Edition (WISC-IV) was administered in 2004, and therefore was not repeated. The psychologist indicated that the child achieved scores within the low average range on tasks of cognitive achievement. During the projective testing utilizing the House-Tree-Person, Rorschach and Thematic Apperception Test (TAT), most of the child's stories were poorly elaborated and involved people being punished. The psychologist indicated that the child was emotionally labile and insecure, and lacked the resources needed to "deal with aggression and anxiety." The psychologist further indicated that the child demonstrated ineffective self-control skills and handles frustration in an infantile manner. The child was overly preoccupied with fantasies in order to control his environment, which resulted in conflicts with peers and noncompliant and disruptive behaviors in social situations. The psychologist also noted that the child was dependent upon adults to provide control and set boundaries.
The psychologist also prepared a Functional Behavioral Assessment (FBA) (Dist. Ex. 13 at p. 4). The FBA indicated that the child exhibited academic delays and had difficulty attending to tasks, completing assignments, and doing homework. During the course of a two week period, the child was observed during classroom activities (i.e., reading and math), while in gym, in the lunchroom, and during science prep period. It was noted that during these observation periods the child needed to be constantly refocused. The psychologist observed that redirecting the child was easier in the structured environment of the classroom where the child could earn stickers and "gold coins" to use in the class store. Redirecting did not work as well in less supervised areas where staff could not monitor the child closely, and where there were no consequences for his actions. The psychologist also noted that when an adult witnessed the child's inappropriate behavior, the child denied any wrongdoing.
In December 2005, the child's third grade teacher at P.S. 144 prepared a report stating that the child was functioning on a first grade level in reading and on a second grade level in math (Dist. Ex. 14). The report also indicated that the child had problems with working independently, following directions, and accepting responsibility. It further noted his problems with concentration, slow work pace, self-control, and poor attitude and motivation. The teacher also indicated that the only strategies that sometimes worked with the child were constant and vigilant supervision, behavior modification, and regular or daily contact with his home through notes and telephone calls.
From January 2006 to the middle of March 2006, staff at P.S. 144 documented the child's inappropriate behavior in over 50 pages of anecdotal reports (Dist. Exs. 19, 24, 25, 26). The anecdotal reports describe such behaviors as not listening, cursing, fighting, throwing food, needing constant supervision in less-structured settings, having trouble discerning fiction from reality, blaming other children who have never had contact with him, urinating on the floor and on other children, picking up tables in the cafeteria and threatening kindergarteners, sticking other children with pencils, and using disparaging words to describe other children and adults (Tr. pp. 56-59, 68, 89; Dist. Exs. 19, 24, 25, 26). At some point after February 7, 2006, the child was placed in another special education class at P.S. 144 (Tr. pp. 70-71; Dist. Ex. 18).
On March 17, 2006, respondent's CSE met and changed the child's classification from a student having a learning disability to that of a student having an emotional disturbance (Dist. Ex. 22). The child's March 17, 2006 IEP indicates needs in the following areas: attention, concentration, peer and adult interaction, anger and frustration, and accepting consequences and criticism. The IEP noted that the child needs to sit next to the teacher or paraprofessional and to have directions broken down. Goals and objectives were developed by the CSE to address the child's interactions, anger, frustration, reading, comprehension, math, writing, auditory processing and grammar. The CSE recommended placement in a 12:1+1 setting with related services of speech and counseling. By a final notice of recommendation dated March 28, 2006, respondent advised petitioner that the CSE recommended that his son be placed in District 75 at P.S. 224, which is a special education school within P.S. 205 (Dist. Ex. 23).
On April 4, 2006 and May 5, 2006 petitioner submitted requests for an impartial hearing challenging the classification and placement recommended for his son (Dist. Ex. 1). An impartial hearing was held on July 12, 2006. Petitioner asserted that his son's classification change from that of a child having a learning disability to a child having an emotional disturbance was improper, and that his son did not belong in respondent's recommended placement at P.S. 224. Respondent asserted that the recommended classification and placement were proper for the child. The impartial hearing officer rendered his decision on July 31, 2006, finding that the CSE properly classified the child as having an emotional disturbance and that respondent's recommended placement was proper.
On appeal petitioner asserts, among other things, that respondent improperly changed his son's classification and placed his son in a more restrictive special education environment without performing a proper FBA and without creating a formal written BIP. Petitioner also asserts that the impartial hearing was conducted improperly. Specifically, petitioner asserts that the impartial hearing officer failed in his responsibility to assist "the party presenting his or her case fully" and that the CSE representative was allowed to ask "numerous misleading questions." Petitioner further asserts that the impartial hearing officer did not have an adequate record with which to support his findings. Petitioner seeks an order reversing the impartial hearing officer's decision upholding the CSE's classification determination and finding the recommended placement appropriate, and an order directing respondent's CSE to conduct a "full and proper" FBA and BIP with "positive interventions."
Respondent asserts that the impartial hearing officer correctly found that its CSE properly classified the child, properly developed the child's IEP, and recommended an appropriate placement for the child in the least restrictive environment (LRE). Respondent further asserts that the impartial hearing officer adequately assisted petitioner during the impartial hearing process and had before him an adequate record with which to render a proper decision.
One of the main purposes of the Individuals with Disabilities Education Act (IDEA)1 is to ensure that students with disabilities have available to them a FAPE2 (20 U.S.C. § 1400[d][A]; Schaffer v. Weast, 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 written IEP (20 U.S.C. § 1401[D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320).3 "The core of the statute" is the collaborative process between parents and schools, primarily through the IEP process (see Schaffer, 126 S. Ct. at 532).
A FAPE is offered to a student when (a) the board of education complies 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, 206-07 ; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). 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]). The IDEA directs that, in general, a decision by an impartial hearing officer shall be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][E][i]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][E][ii]; see 8 NYCRR 2005[j][ii]). Also, an impartial hearing officer is not precluded from ordering a local educational agency to comply with IDEA procedural requirements (20 U.S.C. § 1415[f][E][iii]). The Second Circuit has determined that "a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression'" and if the IEP affords the student with an opportunity greater than mere "trivial advancement" (Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], in other words, likely to provide some "meaningful" benefit (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[a]). An appropriate placement for a student must be identified based upon whether a school can meet the student's needs as identified on the IEP (see 34 C.F.R. § 300.116; 8 NYCRR 200.4[d][ii][a]). The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer, 126 S. Ct. at 537).
An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of the Bd. of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
Petitioner requests that I reverse the impartial hearing officer's decision, which found that his son met the criteria for classification as a student having an emotional disturbance.
Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student's educational performance:
(A) an inability to learn that cannot be explained by intellectual, sensory, or health factors;
(B) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers;
(C) inappropriate types of behavior or feelings under normal circumstances;
(D) a generally pervasive mood of unhappiness or depression; or
(E) a tendency to develop physical symptoms or fears associated with personal or school problems.
(34 C.F.R. § 300.8[c][i], see 8 NYCRR 200.1[zz]).
The impartial hearing officer found that the record demonstrated that the child's intellect and health were not hindering him; rather, his inability to learn was caused by a lack of focus, concentration and behavior that distracted him from listening in the classroom (IHO Decision, p. 8). I agree with the impartial hearing officer. The record shows that the child has difficulty attending to tasks, completing assignments, and being redirected from such behaviors (Dist. Ex. 14 at p. 4). The record also shows that the student exhibits behavior that disrupts the class including kicking, yelling and throwing things at other children (Tr. p. 22). In addition, the assistant principal of P.S. 144 testified that the child's behavior interfered with his ability to function in the classroom, that he was not processing any information in class, was totally unfocused in class, and was not functioning in his current placement (Tr. p. 65).
The impartial hearing officer also found that the "overwhelming documentary evidence" showed that the child was unable to maintain satisfactory interpersonal relationships with peers and teachers, satisfying the second characteristic of emotional disturbance (IHO Decision, p. 9). I agree. The record includes numerous anecdotes describing inappropriate interactions the child had with peers and teachers, such as threatening younger children, hitting and cursing classmates, making obscene gestures, and running away from, talking back to and insulting teachers (see Tr. pp. 58-62). In addition, the FBA indicated that the child was overly aggressive with peers and defiant with adults (Dist. Ex. 13). Further, the assistant principal testified that the student had no friends at school (Tr. p. 65).
The impartial hearing officer further found that the remaining three criteria for classification as a student having an emotional disturbance were demonstrated by the child's actions and subsequent suspensions on the school bus, his actions in the classroom and common areas of the school, and his performance on the psycho-educational evaluation. I agree. The record shows that during the time that the child attended P.S. 144, he was suspended numerous times from the bus for pushing, fighting, and creating dangerous situations on the bus for the driver and other children (Tr. pp. 49, 80). The record further shows that the child lacked self-control, had a poor attitude and often became angry when he failed or was frustrated (Dist. Ex. 14). In addition, the record shows that the child was preoccupied with fantasies to control his environments (Dist. Ex. 13 at p. 2). Further, many of the child's answers on projective testing involved people being punished (Dist. Ex. 13 at p. 2), and the child talked out loud to himself in class (Tr. p. 60). I agree with the impartial hearing officer's determination that the CSE correctly concluded that the child's condition and resulting characteristics met the criteria required for classification of the student as a student with an emotional disturbance.
I also agree with the impartial hearing officer's finding that the program recommended by respondent's CSE placing the child in a 12:1+1 setting with related services of speech and counseling at P.S. 224 was appropriate. The record shows that for the 2005-06 school year, the child was in a 12:1+1 special education class at P.S. 144 (Dist. Ex. 13). Despite being assigned a 1:1 paraprofessional, the child's behavior did not improve (Tr. pp. 57-59). For purposes of instruction, the special education class was further broken down to an 8:1+1 and the child continued to exhibit inappropriate behavior (Dist. Ex. 13 at p. 1). The classroom teacher would present materials to the child in different formats and both she and the paraprofessional would rephrase the instructions to help the child understand how to proceed (Tr. p. 57). Sometime after February 7, 2006, the child was switched to another special education classroom at P.S. 144 (Tr. pp. 70-71; Dist. Ex. 18).
The record also shows that a token economy and reward system was used in the classroom and that daily notes were sent home to the parents with frequent phone contacts (Tr. pp. 57, 58, 72; Dist. Ex. 14). Meetings with the parents were set up on a regular basis (Tr. p. 72). The school principal and assistant principal met with petitioner to discuss his child's behavior (Tr. p. 57). One on one teacher student conferences were held (id.). The record demonstrates that while the child attended P.S. 144, respondent's teachers, administrators, counselors and psychologists tried numerous behavioral and counseling interventions to support the child within the program. Despite these attempts the child continued to display inappropriate behavior (Tr. pp. 19, 20, 22, 55-65, 72; Dist. Exs. 11, 12, 13, 24, 25, 26).
Respondent's representatives testified that petitioner's son required a more restrictive, structured setting with greater resources devoted to his management needs in order to minimize disruptions and enable him to benefit from school (Tr. pp. 85, 115, 117-21). The school psychologist testified that P.S. 144 does not have the intensive behavior management and crises intervention in place to handle the child (Tr. p. 32). She also testified that the special school at P.S. 224 can provide additional adult support in the classroom, that the staff is trained to expect and to handle crisis intervention situations, and that P.S. 224 places an emphasis on teaching children coping skills and social development skills that would assist the children to attend to their academics (Tr. p. 31). The record shows that the recommended placement at P.S. 224 has a behavior modification specialist on staff and uses a variety of behavior modification techniques that are not available at P.S. 144 (Tr. pp. 85, 115, 117-21). Respondent's personnel testified that P.S. 224 would design a behavior plan for the child (Tr. p. 85).
A crisis intervention teacher from P.S. 224 testified that students are referred to their site due to behavior management problems (Tr. p. 115). She stated that the child was scheduled to be assigned to a 12:1+2 class in P.S. 224 with a very strict and consistent behavior management system in place (Tr. p. 117). She further testified that the program's goal at P.S. 224 is to return children to less restrictive settings through the use of behavior modification systems (Tr. p. 115), and that academics are provided in blocks of literacy, which encompasses reading; language arts and writing; math; computer skills; art; science; and social studies (Tr. pp. 115-16). She opined that the program is appropriate for the child (Tr. p. 123).
I also agree with the impartial hearing officer that the recommended placement was provided in the LRE. Federal and state regulations require that, to the maximum extent appropriate, each child must be educated in the LRE (34 C.F.R. § 300.114[a]; 8 NYCRR 200.4[d][ii][b]). Placement of a student in the LRE shall (1) provide the special education needed by the pupil, (2) provide for education of the student to the maximum extent appropriate to the needs of the student with other pupils who do not have handicapping conditions, and (3) be as close as possible to the student's home (8 NYCRR 200.1[cc]). Further, both state and federal regulations require, in relevant part, that when considering a placement in the LRE, districts place the child as close to his home as possible, unless the IEP requires some other arrangement (34 C.F.R. 300.116[b][c]; 8 NYCRR 200.4[d][ii][b]). Consideration is also given to any potential harmful effect on the child or on the quality of services that he or she needs (34 C.F.R. 300.116[b][d]; 8 NYRCC 200.4[d][ii][c]).
The record shows that when petitioner filed his impartial hearing request, he stated that his son's "home-zoned school" is the LRE placement and is within walking distance from his home (Dist. Ex. 1). Petitioner's impartial hearing request further stated that having his son educated at a school closer to home would allow his son to participate in such activities as "P.A.L. and N.Y.C. Dept. of parks and recreations," (Dist. Ex. 1 at p. 2). However, on appeal, petitioner only makes the assertion that the impartial hearing officer did not have adequate information to decide that the more restrictive placement for his son was appropriate (Pet. ¶ 7).
A hearing officer must ensure that there is an adequate record upon which to premise his or her decision and permit meaningful review of the issues (Application of a Child with a Disability, Appeal No. 02-03; Application of the Bd. of Educ., Appeal No. 01-87). I find that there is sufficient information in the record to support the impartial hearing officer's determination that respondent's CSE recommended an appropriate program in the LRE for the child. The record shows that respondent attempted first to keep the child in a general education class with SETSS and related services (Dist. Ex. 7). The record also shows that the child's behavior continued to worsen, prompting respondent's personnel to move the child to a more structured classroom environment (Tr. p. 12; Dist. Ex. 10). As the intensity and frequency of the child's inappropriate behavior continued to increase, respondent's CSE recommended a more restrictive environment which, unlike the community schools, has the staff with the capabilities and training to address the child's behavior (Tr. pp. 117, 123, 126-27). I agree with the impartial hearing officer's decision that the child requires a highly structured environment where he will have teachers and paraprofessionals who are specially trained to appropriately deal with the child's behavioral issues (IHO Decision, p. 9).
Petitioner also asserts that respondent has not conducted an FBA4 or BIP of his son. This issue was not raised at the hearing, and is, therefore, not properly raised in this appeal (Application of a Child with a Disability, Appeal No. 05-080; Application of a Child with a Disability, Appeal No. 04-043; Application of a Child with a Disability, Appeal No. 04-019; Application of the Bd. of Educ., Appeal No. 02-024; Application of a Child with a Disability, Appeal No. 99-60; Application of a Child with a Disability, Appeal No. 98-14).
I have considered petitioner's remaining contentions and I find them to be without merit.
THE APPEAL IS DISMISSED.
1 On December 3, 2004, Congress amended the IDEA, and the amendments became effective July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 , Pub. L. No. 108-446, 118 Stat. 2647). The relevant events in this appeal occurred subsequent to that date, and all references to the IDEA used herein refer to the newly amended provisions of the IDEA 2004, unless otherwise specified.
2 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(9).
3 The Code of Federal Regulations (34 C.F.R. Parts 300 and 301) was amended effective October 13, 2006, to implement changes made to the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004. In this case, none of the new provisions contained in the amended regulations are applicable because all relevant events occurred prior to the effective date of the new regulations. However, for convenience, citations herein refer to the regulations as amended because the regulations have been reorganized and renumbered.
4 I note that the December 7, 2005 psychoeducational report includes a functional behavioral assessment based on, among other things, numerous observations of the child over a two-week period (Dist. Ex. 13 at 4).