I. Introduction

            This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioners (the parents) appeal from the decision of an impartial hearing officer (IHO) in an expedited due process hearing pursuant to 8 NYCRR Part 201 which awarded their son fifty hours of compensatory education.  Respondent (the district) cross-appeals from the IHO's determinations adverse to it.  The appeal must be dismissed.  The cross-appeal must be dismissed.

II. Overview—Administrative Procedures

            When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]).  If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

            New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]).  First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]).  An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]).  The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]).  A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]).  In matters involving disciplinary changes in placement of a student having or suspected of having a disability, a parent may request an expedited impartial hearing in which shorter timelines are imposed (see 20 U.S.C. § 1415[k][3][A]; 34 CFR 300.532[c]; 8 NYCRR 201.11[a][3]-[4]).  The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).

            A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]).  The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4).  The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5).  The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]).  The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).

III. Facts and Procedural History

            The hearing record is sparse relative to the student's educational background because it is based on an expedited impartial hearing.  The student has a history of interfering behaviors, including aggressive, impulsive, hyperactive, and "bolting" behaviors (Parent Ex. 4 at pp. 1-2).  At the beginning of the 2014-15 school year, the student attended a second grade Board of Cooperative Educational Services (BOCES) special class program (id. at p. 1).  In December 2014, a subcommittee on special education convened and determined that the BOCES program was not able to meet the student's behavioral needs (Parent Ex. 5 at pp. 1-2).  Although the parents were not in agreement, the December 2014 CSE subcommittee recommended the student transfer to an 8:1+2 special class placement in the district (id. at p. 1).  The December 2014 IEP was not implemented and instead the student received home instruction from December 2014 until May 2015, when the parties agreed pursuant to a stipulation of settlement that the student would attend a 6:1+2 BOCES special class placement located in another district and receive related services, which agreement was memorialized in an IEP dated May 15, 2015 (Parent Ex. 28 at p. 1; Dist. Exs. 2 at pp. 10-13; 4 at p. 1; see Tr. pp. 93-94).[1]

            A CSE convened on July 16, 2015 to develop the student's IEP for the 2015-16 school year (Parent Ex. 15 at p. 1).  Based on the most recent evaluations of the student, teacher reports, classroom functioning, parent information, and committee discussion, the July 2015 CSE recommended that the student attend a 6:1+2 BOCES special class placement with the assistance of a 1:1 aide (id. at pp. 1, 8-9).  In addition, the July 2015 CSE recommended related services of individual occupational therapy (OT) and small group and individual speech-language therapy (id. at pp. 1, 8-9).

            BOCES staff indicated that the student exhibited "minimal behaviors" from May 2015 through the summer, but that by October 2015 the student had begun engaging in aggressive behaviors in response to work demands and that elopement behaviors had emerged (Tr. pp. 94-97; Parent Ex. 21 at p. 1).  Around this time, school staff began requesting that the parents pick up the student from school when staff deemed the student's behaviors to be unsafe for the student or others (Tr. pp. 98-99, 109-10, 114-115, 139-40).  A BOCES assistant principal testified that the parents agreed to pick the student up from school when his behavior became unsafe (Tr. pp. 98-99, 114).[2]  On October 30, 2015, a private agency developed a behavioral intervention plan (BIP) to address the student's interfering behaviors in school, which included a hypothesis for the function of the student's behavior and intervention strategies to decrease the problem behaviors and increase socially appropriate behaviors (Dist. Ex. 16).

            A CSE convened on November 13, 2015 to discuss the BIP (Tr. pp. 119-20, 255-57).[3]  By mid-December 2015, the parents had been called on six occasions to pick the student up before the end of the school day based on safety concerns (Parent Ex. 28 at p. 1).  The CSE reconvened on December 11, 2015 to adapt the BIP to the format used by BOCES (Tr. pp. 120, 257).  As revised, the BIP provided that "[the student's] parents have agreed to pick him up at such time as it is determined that all interventions have been unsuccessful and [the student's] behaviors continue to be unsafe to himself and others" (Parent Ex. 28 at pp. 1-2).[4]

            The student continued to attend the 6:1+2 BOCES special class placement until February 2016, when his placement was changed to home instruction (Tr. p. 231; see Dist. Exs. 1 at pp. 7, 24; 2 at p. 5).[5]

A. Due Process Complaint Notice

            In an amended due process complaint notice dated April 11, 2016, the parents alleged, as relevant to this appeal, that the district refused to provide the student with a free appropriate public education (FAPE) for the 2015-16 school year (Dist. Ex. 1 at p. 1).[6]  The parents asserted that the student was suspended in excess of ten days without a manifestation determination review (MDR) (id. at pp. 2-6, 17-21). The parents further asserted that during these suspensions, the student received no counseling or other services to address his behaviors (id. at pp. 5, 21).  As relief the parents requested, as relevant to this appeal, "make up" services for services the student missed due to being suspended, payment of transportation costs for picking up the student, and reimbursement of legal fees (id. at pp. 28-30).

B. Impartial Hearing Officer Decision

            At a prehearing conference on April 1, 2016, the IHO determined to bifurcate the expedited issues contained in the due process complaint notice and hold an expedited hearing on those issues (Tr. pp. 3, 9-23).  The parties convened for an expedited impartial hearing on May 3, 2016 (see Tr. pp. 49-309).  In a decision dated May 17, 2016, the IHO found that by requiring the parents to pick the student up from school, the district effectuated a disciplinary change in placement, and that it was required to conduct an MDR (IHO Decision at pp. 4-5).  The IHO also credited the parents' account of the number of times they were required to pick the student up from school over that of the BOCES assistant principal (id. at pp. 7-8).  Accordingly, the IHO found that the district violated state and federal law by failing to conduct an MDR and render a manifestation determination (id. at pp. 8-9).  The IHO found that the failure to conduct an MDR constituted a denial of a FAPE to the student, and awarded fifty hours of compensatory education to be provided by a certified special education teacher (id. at pp. 9-10).[7]

IV. Appeal for State-Level Review

            The parents, proceeding pro se, appeal from the IHO's decision and request additional compensatory education "beyond the 50 hours to cover the days [the parents] identified as days [they] kept [the student] home" pursuant to the direction of school staff.  Further, the parents request enforcement of the IHO's award of 50 hours of compensatory education services, alleging that the district is "unresponsive and ignoring the order."  The parents also request mileage reimbursement for each time they were asked to pick up the student from school.  Finally, the parents request reimbursement of all legal fees incurred.

            The district answers the parents' petition, generally denying the allegations raised therein, and interposes a cross-appeal.  The district argues that the IHO's decision was an interim decision and therefore is not appealable.  The district further argues that the parents' petition should be dismissed for failure to comply with the regulations governing practice before the Office of State Review and that such failure has "materially prejudiced" the district.[8]  Additionally, the district asserts that the parents have failed to demonstrate any entitlement to relief.  The district cross-appeals the IHO's determination that some of the parents' claims were subject to expedited hearing procedures and also asserts that the IHO erred in not dismissing as moot the parents' claim regarding having to pick the student up from school.  The district further asserts that the hearing record does not support the IHO's determination that the student was suspended, or that the parents' picking the student up from school was a result of disciplinary action constituting a change in placement.  Finally, the district argues the IHO exceeded his authority by awarding compensatory education to the student in the absence of a "gross violation."

V. Applicable Standards

            The IDEA includes specific protections with regard to the process by which school officials may seek to effectuate a disciplinary change in placement of a student with a disability who violates a code of student conduct (see 20 U.S.C. § 1415[k]; Educ. Law §§ 3214[3][g]; 4404[1]; 34 CFR 300.530-300.537; 8 NYCRR Part 201).  State regulations provide that a disciplinary change in placement means a "suspension or removal from a student's current educational placement that is either: (1) for more than 10 consecutive school days; or (2) for a period of 10 consecutive days or less if the student is subjected to a series of suspensions or removals that constitute a pattern because they cumulate to more than 10 school days in a school year" (8 NYCRR 201.2[e]; see 20 U.S.C. § 1415[k][1][B]; 34 CFR 300.530[b][2], [c]).

            If a district is considering a disciplinary change in placement for a student with a disability, the district must conduct an MDR "within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct" (20 U.S.C. § 1415[k][1][E][i]; 34 CFR 300.530[e][1]; 8 NYCRR 201.4[a]).  The participants in an MDR must include a district representative, the parents, and the "relevant members" of the CSE, as determined by the parent and the district (20 U.S.C. § 1415[k][1][E][i]; Educ. Law § 3214[3][g][2][ii]; 34 CFR 300.530[e][1]; 8 NYCRR 201.4[b]).  The manifestation team must "review all relevant information in the student's file including the student's IEP, any teacher observations, and any relevant information provided by the parents to determine if: "(1) the conduct in question was caused by or had a direct and substantial relationship to the student's disability; or (2) the conduct in question was the direct result of the school district's failure to implement the IEP" (8 NYCRR 201.4[c]; see 20 U.S.C. § 1415[k][1][E]; 34 CFR 300.530[e][1]).

            If the result of the MDR is a determination that the student's behavior was a manifestation of his or her disability, the CSE is required to conduct a functional behavioral assessment (FBA) and implement a BIP; or if the student already has a BIP, review the BIP and modify it as necessary to address the behavior (20 U.S.C. § 1415[k][1][F][i]-[ii]; 34 CFR 300.530[f][1][i]-[ii]; 8 NYCRR 201.3).  Except under "special circumstances" as defined in the IDEA and State and federal regulations, the district must also return the student to the placement from which he or she was removed or suspended (20 U.S.C. § 1415[k][1][F][iii]; Educ. Law § 3214[3][g][3][viii]; 34 CFR 300.530[f][2]; 8 NYCRR 201.4[d][2][ii]).[9]  If the MDR team determines that the student's conduct was the direct result of the school district's failure to implement the student's IEP, the district must take immediate steps to correct the deficiencies in the implementation of the student's IEP (34 CFR 300.530[e][1][ii], [3]; 8 NYCRR 201.4[e]).

            If the parent of a student with a disability disagrees with a school district's decision regarding the student's placement, or a determination of the manifestation team, the parent may request an expedited impartial hearing (20 U.S.C. § 1415[k][3][A]; 34 CFR 300.532[c]; 8 NYCRR 201.11[a][3]-[4]; see Coleman v. Newburgh Enlarged City Sch. Dist., 503 F.3d 198, 201-02 [2d Cir. 2007]).

VI. Discussion

            In its cross-appeal, the district argues that the IHO erred in determining that the parents' claims were entitled to "expedited treatment" since the regulations governing the expedited hearing process, found at 8 NYCRR 201.11(a)(3) and (4), pertain to expedited hearings conducted after disciplinary suspensions and the student in this case was not subject to any "disciplinary procedures."  The IHO concluded in his decision, contrary to the district's assertions, that "when parents are told to pick up students from school because of misbehavior, the directive from the school district should be characterized as a disciplinary change of placement" (IHO Decision at p. 4).[10]

            As noted above, a district is required to conduct an MDR "within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct" (20 U.S.C. § 1415[k][1][E][i]; 34 CFR 300.530[e][1]; 8 NYCRR 201.4[a]).  Pursuant to State regulations, a "disciplinary change in placement means a suspension or removal from a student's current educational placement" (emphasis added) and therefore whether formal suspension proceedings were initiated by the district is not relevant to the facts of this case (see 8 NYCRR 201.2[e]).  A removal other than a suspension from a student's educational placement may not be imposed "for a period that would result in a disciplinary change in placement, unless there has been a determination that the behavior is not a manifestation of the student's disability" (8 NYCRR 201.9[b]).  As relevant to this case, a removal becomes a disciplinary change in placement "if the student is subjected to a series of suspensions or removals that constitute a pattern because they cumulate to more than 10 school days in a school year" (8 NYCRR 201.2[e][2]; see Honig v. Doe, 484 U.S. 305, 325 n.8 [1988]).[11]  "The school district determines on a case-by-case basis whether a pattern of removals constitutes a change of placement.  This determination is subject to review through due process and judicial proceedings" (8 NYCRR 201.2[e][2] [emphasis added]).  The BOCES assistant principal testified that the parents were called to pick up the student when his behavior became unmanageable on three occasions in October, two times in November, two times in December, and three times in January, for a total of ten occasions (Tr. pp. 98, 104-06, 112, 116-17; Dist. Ex. 2 at pp. 27-30).  However, in a response to the parents' due process complaint notice dated April 23, 2016, a district assistant superintendent acknowledged that the parents picked the student up from school on 14 days (Dist. Ex. 2 at pp. 4, 14).  The parents testified that the school called them to pick the student up a minimum of seventeen times, and a maximum of twenty times (Tr. pp. 230-31; Dist. Ex. 2 at pp. 27-30).  Additionally, the parents submitted evidence tending to illustrate not only that the student was sent home, but also that the parents were encouraged by the district to keep the student home on other days (Parent Exs. 18; 19).  The hearing record provides no basis to depart from the IHO's determination that the parents' testimony was more consistent with the documentary evidence in the hearing record than was that of the BOCES assistant principal (IHO Decision at pp. 7-8).  Accordingly, the IHO properly determined to hear issues relating to the student's removal from his current educational placement, including whether the district was required to conduct an MDR, on an expedited basis (8 NYCRR 201.2[e][2]; 201.9[b]).

            To the extent the district's cross-appeal can be read to challenge the IHO's determination that the district violated the IDEA by not performing an MDR, it is not necessary to address at this juncture because, as noted by the district, the IHO did not direct the district to perform an MDR, the parents are not now seeking an MDR, and for the reasons set forth below, a determination on the appropriate relief to be granted must await the conclusion of the impartial hearing on the nonexpedited issues contained in the parents' complaint.  Furthermore, for essentially the reasons set forth above, the district's argument that the challenged actions were not disciplinary in nature is without merit.[12]

            In their petition, the parents request enforcement of the IHO's expedited order for the district to provide fifty hours of compensatory education to the student as a remedy for the district's failure to perform an MDR for the student.  The parents request additional compensatory education to "cover the days" they were instructed to keep the student home.  Upon review of the hearing record, the parents' request for relief must be held in abeyance pending a determination by the IHO of the nonexpedited issues in the parents' due process complaint notice.

            The award of compensatory education services appears to derive from the IHO's finding that the district failed to offer the student a FAPE for the 2015-16 school year.  The issue of whether the district offered the student a FAPE was not at issue at the expedited impartial hearing because it was specifically bifurcated by the IHO.  The only issue to be addressed at the expedited portion of the impartial hearing was a narrow one and, as such, the issues bifurcated for the expedited portion of parents' due process complaint notice do not encompass the question of whether the district failed to offer the student a FAPE for the 2015-16 school year, and such claims were not fully litigated during the expedited hearing (see Dist. Ex 1; IHO Decision).

            Within the Second Circuit, compensatory education relief has generally been awarded if there has been a denial of a FAPE (see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014] [noting that "when parents believe the local public school district has denied their child a FAPE, one option available to them is to . . . seek administrative (and, later) judicial review of the child's IEP for the purpose of obtaining compensatory education"] [internal quotations omitted]; French v. New York State Dep't of Educ., 476 Fed. App'x 468, 471-72 [2d Cir. Nov. 3, 2011] [holding that compensatory education is available as a remedy for a denial of a FAPE]; P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008] [stating that "compensatory education is an available option under the [IDEA] to make up for denial of a [FAPE]"]; but see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456-57 [2d Cir. 2015] [endorsing compensatory education as a remedy for a district's violation of a student's pendency entitlement]).  The parents' amended due process complaint notice raises a number of issues that were part of the nonexpedited portion of the impartial hearing regarding the district's failure to offer the student a FAPE for the 2015-16 school year (see Dist. Ex 1).  Because compensatory education is intended as a remedy for a denial of a FAPE, and a number of issues relating to the parents' allegations were not resolved at the time the IHO issued a decision on the expedited issues, the limited evidence adduced at the expedited impartial hearing does not provide a basis for assessing whether the award of compensatory education was appropriate or reasonable under the circumstances, and the relief requested cannot be awarded without the benefit of the full record.[13]  Either party may raise, on appeal from the IHO's final decision on the remaining issues, the issue of the compensatory education awarded with respect to the expedited issues.

VII. Conclusion

            In accordance with the foregoing and upon consideration of the hearing record, the parents' requested relief for additional compensatory education must be held in abeyance pending a determination regarding FAPE by the IHO and any appeal from the remainder of the outstanding issues being litigated in this matter.

            I have considered the parties' remaining contentions and find them unnecessary to address in light of my determinations herein.

            THE APPEAL IS DISMISSED

            THE CROSS-APPEAL IS DISMISSED