02-103

        Petitioners appeal from an impartial hearing officer's finding that respondent had offered petitioners' son a free appropriate public education (FAPE) for the 2000-01 school year. The appeal must be sustained.

        At the time of the hearing, petitioners' son was nine years old, and was receiving home instruction since an alleged incident of abuse on February 7, 2001 at his BOCES program.¹ The child was diagnosed with attention deficit hyperactivity disorder (ADHD), combined subtype, and oppositional defiant disorder (ODD) (Exhibit D-19). The child's classification as other health impaired (OHI) (June 3, 2001 Transcript p. 409) is not in dispute.

        Petitioners' son began receiving special education related services for his speech-language delay when he was two years old (July 10, 2002 Transcript p. 804). When the child entered the Half Hollow Hills school district, the Committee on Special Education (CSE) placed the child in a self-contained kindergarten class due to inattentiveness and restlessness, and recommended the child receive speech services (Exhibit D-19; July 10, 2002 Transcript p. 805). The child was first diagnosed with ADHD during an evaluation at Schneider Children's Hospital (Exhibit D-19). He reportedly refused to participate in class, wouldn't listen to instructions, and demonstrated severe temper tantrums and aggressive behaviors (Exhibit D-19). About November 1998, respondent began utilizing a behavior intervention plan (BIP) for the child (July 10, 2002 Transcript p. 806).

        In first grade, respondent's CSE recommended that petitioner's son be placed in a BOCES program at James E. Allen learning center (James E. Allen) beginning January 1999 (July 10, 2002 Transcript p. 806). The child was still unable to focus and refusing to follow the classroom rules (July 10, 2002 Transcript p. 806). He had speech-language delays and was classified as speech impaired when he entered James E. Allen (June 3, 2002 Transcript p. 408). Subsequently, the CSE changed the child's classification to OHI as a result of extensive testing diagnosing the child as ADHD and ODD. He also displayed a learning disability with speech-language delays (June 3, 2002 Transcript p. 409). The child was placed in a cooperative discipline program at James E. Allen for the 1999-2000 school year (June 3, 2002 Transcript p. 409). However, during the 1999-2000 school year, the child was removed from the BOCES cooperative discipline program because he was not functioning on the same level as the other students in that program (June 3, 2002 Transcript p. 410). He was placed in a self-contained 6:1+1 program at James E. Allen where he remained for the 2000-01 school year (June 3, 2002 Transcript p. 411). During the 2000-01 school year the student received speech-language therapy, counseling services, and BOCES requested a 1:1 paraprofessional aide because of continued non-compliance and severe oppositional behavior (June 3, 2002 Transcript p. 415).

        The child's special education teacher utilized a BIP for the whole class. There was a 25-point system where a child would gain points for good behavior and lose points for poor behavior (February 5, 2002 Transcript p. 55). At the end of the day the teacher would count up the points and a child would get a reward according to the point system (February 5, 2002 Transcript p. 55). Besides the classroom, there were three separate levels of removal used to modify a child's behavior. The separation room is a room with padded walls and is used when a child does not have the capacity to calm down on his or her own (June 3, 2002 Transcript p. 273). At the level below that there is a redirection room where a child may not be assigned work at this time because he or she is not prepared to do any work (June 3, 2002 Transcript p. 273). At the least restrictive level there is the planning room where a social worker or psychologist would talk to the child to ask the child questions to help that child determine what behavior removed the child from the classroom and alternatives that the child could have employed (June 3, 2002 Transcript p. 274).

        On February 7, 2001, the child was sent to the redirection room twice (February 5, 2002 Transcript p. 68). The child was sent to redirection room because it became evident to his teacher that he was going to harm a staff member, himself, or another student (February 5, 2002 Transcript p. 68). On that day the child's 1:1 paraprofessional actually brought him to the redirection room, although sometimes the teacher calls for a team to remove him from the class (February 5, 2002 Transcript p. 69). At the hearing the teacher recalled her having a concern for the safety of another child (February 5, 2002 Transcript p. 72). Petitioners' son was brought back to the classroom about an hour later, but taken back to the redirection room because he was standing at the doorway and would not sit down in his classroom seat (February 5, 2002 Transcript p. 73). Upon returning from the redirection room about 1:45 p.m., the child did some math problems, had playtime, and then went home at the end of the day (February 5, 2002 Transcript p. 73). After returning from the redirection room on February 7, 2002, the child did not indicate that he was hurt or request to see the nurse, even though he is capable of indicating when he is hurt (February 5, 2002 Transcript p. 74). However, later that night when petitioners' son was getting ready for bed, he held his arms up and his mother noticed a scratch and bruising on his right arm that she believed to be caused by someone dealing with her son's behavior at school that day (July 10, 2002 Transcript pp. 840-41).

        Petitioners met with the assistant principle of the BOCES program the next day to discuss the incident (July 10, 2002 Transcript p. 842). Petitioners refused to send their son to James E. Allen unless the person suspected of bruising their son was fired or no longer involved with their son (June 6, 2002 Transcript p. 642). Respondent's CSE did not conduct an investigation regarding the alleged incident on February 7, 2001 (June 4, 2002 Transcript p. 486). However, James E. Allen conducted its own investigation, and the results of the alleged abuse were deemed unfounded (June 3, 2002 Transcript p. 427). There were four individuals that actually restrained petitioners' son on that particular day, but none of the individuals were found to have used excessive force (June 3, 2002 Transcript p. 427). Petitioners filed charges with the police department regarding the incident (June 6, 2002 Transcript p. 565). The police also determined that the accusation was unfounded (June 6, 2002 Transcript p. 563). Petitioners removed their child from the program on February 8, 2001 and placed him on home instruction (June 3, 2002 Transcript p. 281, June 6, 2002 Transcript p. 642, August 14, 2002 Transcript p. 942).

        By letter dated August 27, 2001, petitioners requested an impartial hearing contending that respondent failed to provide their son with a FAPE for the 2000-01 school year and that respondent's CSE failed to create an appropriate individualized education program (IEP) and placement for the 2001-02 school year (Exhibit IHO-1). The hearing commenced on December 19, 2001 and concluded on August 9, 2002. In a decision dated October 7, 2002, the hearing officer found that respondent provided petitioners' son with a FAPE for the 2000-01 school year, but also found that the 2001-02 IEP created at the August 30, 2001 CSE meeting null and void because petitioners were not given the required five day notice of the meeting and the parents notified respondent that they would not be able to attend the meeting. The hearing officer directed respondent's CSE to reconvene to promulgate an IEP for petitioners' son for the 2002-03 school year. In addition, the hearing officer found that while he would not condone the use of force, particularly against a student with a disability, the injury sustained by the child in this case was the result of his own conduct (IHO Decision p. 8). The hearing noted that respondent did not exclude petitioners' son from attending the school, but it was the actions of the child's parents that prevented respondent from providing their son with the appropriate program (IHO Decision p. 10). Petitioners appeal contending that the hearing officer erred in concluding that respondent provided their son a FAPE for the 2000-01 school year.

        The purpose behind the Individuals with Disabilities Education Act (IDEA) is to ensure that children with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; see Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2d Cir. 1987]). A FAPE consists of specialized education and related services embodied in an IEP (34 C.F.R. § 300.13). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Bd. of Educ., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-092). To meet its burden of showing that it provided a FAPE to an individual child, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

        An appropriate program begins with an IEP which accurately reflects the results of evaluations identifying the student's needs, establishes annual goals and short term instructional objectives related to those needs, and provides for the use of appropriate special education services (34 C.F.R. §§ 300.346, 300.347; 8 NYCRR 200.4[d][2]). An appropriate IEP must also include a student's present levels of performance and individual needs with respect to academic achievement and learning characteristics, physical development, social development, and management needs (8 NYCRR 200.4[d][2][i] and 200.1[ww]). The information must be sufficiently detailed to enable the CSE to prepare appropriate goals and objectives (8 NYCRR 200.4[d][2][iii]).

        A functional behavior assessment is the process of determining why a child engages in behaviors that impede learning and how the child's behavior relates to the environment. An FBA identifies the problem behavior, defines it in concrete terms, identifies the contextual factors that contribute to the behavior, and formulates a hypothesis with regard to the general conditions under which the behavior usually occurs and the probable consequences that serve to maintain it (8 NYCRR 200.1[r]). A BIP is a plan that is based on the results of the functional behavior assessment. As well as including a description of the problem behavior, it must include both global and specific hypothesis as to why such behavior occurs and intervention strategies to address the behavior (8 NYCRR 201.2[a]; see 20 U.S.C. § 1414[d][3][B][i]; see also 34 C.F.R. § 300.346[a][2][i]; see also 8 NYCRR 200.4[d][3][i]).

        As a procedural matter, I note that petitioners submitted an Addendum to Petition, dated September 3, 2003. The Regulations of the Commissioner, section 279.6, state that:

"[n]o pleading other than the petition or answer will be accepted or considered by a State review officer of the State Education Department, except a reply by the petitioner to any procedural defenses interposed by respondent or to any additional documentary evidence served with the answer…."

8 NYCRR 279.6

Since this was not a reply to respondent's answer, I will not consider petitioners' Addendum to Petition. I will now consider the merits of this case.

        With respect to petitioners' contention that the hearing officer erred in concluding that respondent provided their son with a FAPE for the 2000-01 school year, petitioners specifically claim that their son's special education teacher did not implement a BIP for their child, but instead she used her own class-wide behavior modification plan, which was not appropriate or effective for their child. The child's special education teacher testified that the child has a hard time waiting for delayed gratification and that he had a 1:1 aide to help if he needed something almost immediately (February 5, 2002 Transcript p. 40). The teacher testified that she did not use the child's BIP daily (February 5, 2002 Transcript p. 81). Rather, the teacher utilized a class-wide behavior management plan based upon a point system where points were given for appropriate behavior and taken away for inappropriate behavior and rewards were given at the end of the day (February 5, 2002 Transcript pp. 55, 80, 154). The child's teacher testified that petitioners' son had difficulty with this behavior management system (February 5, 2002 Transcript p. 56). At the hearing, Dr. Auciello, the child's independent evaluator and clinical neuropsychologist testified that the class-wide behavior management plan with a point system would not work for petitioners' son because too much time would pass between the positive behavior and the end of the day when the reward was to be given (July 10, 2002 Transcript pp. 733-34). Dr. Auciello opined that given this child's language problems, he couldn't adequately internalize rules such as staying in his seat, doing his work, and then receiving a reward at the end of the day even if prompted by his 1:1 paraprofessional (July 10, 2002 Transcript pp. 734-35). He further opined that this child would need more tangible rewards (July 10, 2002 Transcript p. 737).

        In view of the child's behavior, as well as the testimony of the child's special education teacher and his clinical neuropsychologist evaluator, I find that the IEP should have specifically provided for the use of an individualized BIP. It is the CSE's responsibility to prepare a BIP as a component of the child's IEP (Application of a Child with a Disability, Appeal No. 99-050). To prepare an appropriate behavior plan, the CSE must identify the specific behavior, which is to be addressed by the plan, and it must also identify an effective form of reinforcement that is to be used to affect to child's behavior (Application of a Child with a Disability, Appeal No. 96-91). I also note that it is a school district's responsibility to make sure that the child's IEP and BIP are being properly implemented. This is a child that was placed in a classroom with a class-wide behavior modification plan while this child needed an individualized BIP tailor to meet his individual needs. I find that there was too much time that passed between the time of this child's desired behavior occurring and the time which he received his reward for that appropriate behavior. It doesn't appear from the record that this child fully comprehended and appreciated that if he demonstrated appropriate behavior all day long he would receive a reward for this behavior at the end of the day. This is evidenced by the child's behavior log demonstrating that this child spent a lot of his time in a redirection room (see Exhibits D-5, P-A) and the teacher testifying that this child needed gratification almost instantaneously (February 5, 2002 Transcript p. 40). Thus, I find that respondent failed to provide petitioners' son with a FAPE for the 2000-01 school year.

        I have considered petitioners' other assertions and find them to be without merit.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is hereby annulled only to the extent that it found that respondent had demonstrated the appropriateness of its recommended program for the 2000-01 school year.

IT IS FURTHER ORDERED that if respondent's CSE has not already done so, it is to prepare an IEP for petitioner's son in accordance the hearing officer's directive for the current school year within two weeks following receipt of this decision.