New York City Department of Education, Impartial Hearing Decision

THE UNIVERSITY OF THE STATE OF NEW YORK

THE STATE EDUCATION DEPARTMENT

X In The Matter Of The Parents and Guardians of , : Petitioner, : - and -

: I.H.O.

BOARD OF EDUCATION,

: Respondent. X

This matter came before me pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1) on the Complaint received by the District on January 11, 2011, which alleged violations pursuant to Part 201 of the Commissioner’s Regulations. The Complaint alleged, inter alia, that the District failed to conduct a proper manifestation determination review of in connection to a long-term out of school suspension; that the District did not provide the parents with timely notice of its manifestation determination; that the District’s manifestation review team was improperly composed and did not consider modifications to the student’s IEP; that the District failed to provide transportation to the student’s alternative program while the student was suspended; and that the District failed to provide the student with a certified special education teacher during the suspension period.

The record close date was March 2, 2011. Procedural Issues.

On the record, the parties indicated that they had resolved the issues but for the issues relating to (1) transportation to and from the alternative placement; (2) whether the alternative placement had to consist of a placement containing a special education teacher. The parents indicated the terms of the agreement on the record, without objection from the District. In their brief, the parents then requested that the IHO “so order” the terms in the agreement. No objection has been lodged by the District. I will accordingly “so order” the terms of this agreement.

Also on the record, the parents went on to raise issues beyond the transportation and special education teacher issues. The parents also contended that the District improperly convened a subcommittee to determine .’s alternative educational program because such reviews must be conducted by a CSE. (15) The parents contended further that the subcommittee failed to consider services necessary for the student to progress in the general education curriculum. (16) The parents contended further that they were not notified of the alternative instruction until December 1, 2010 although the student was placed on alternative instruction on November 24, 2010. (17-18) The District did not clearly object to the parents then raising these issues, which do not appear to have been the subject of the agreement between the parties. I will therefore address these issues in this decision.

Though some of the claims mentioned during the oral presentation were not clearly raised in the Complaint, I will consider them because the District had an opportunity to rebut these claims through testimony, evidence and legal argument. A similar issue was raised in a recent case before Federal Judge Loretta Preska, the Chief Judge of the Southern District of New York. In M.H. v. NYC Department of Education, 2010 WL 1904005 (S.D.N.Y. 2010), the SRO had reversed the Impartial Hearing Officer ruling on tuition reimbursement because the SRO excluded evidence and testimony relating to methodology. Though methodology was not raised in the Complaint, Judge Preska reversed the SRO and went so far as to indicate that the SRO decision was not worthy of deference. Judge Preska went on to state:

Even assuming arguendo that Plaintiff’s testimony about methodology actually did surprise and unfairly prejudice the DOE at the time that Plaintiffs introduced it, the IHO cured this problem by allowing the DOE to present two rebuttal witnesses. . . Id. at 23.

Finally, the parents did not mention certain of the claims in the Complaint during their oral presentation or brief and did not direct questioning toward these claims. As a result, I will construe such claims in the Complaint to be resolved per the settlement between the parties and/or withdrawn by the parents.

Testimony and Evidence.

. from the District testified that .’s class was designed to have students, but students were never in the class during .’s time. (38) It was about students. (39) The instructor was .; children were in grades 4, 5, 6. (39) The schedule was from 8:30am to 9:25am English and reading; 9:25am to 9:45am either science or social studies; 9:45am to dismissal math. (39) There would be group instruction and then individual seat work. (40) . was one of the smarter kids in the group, he observed him answering most of the question. (40)

is a certified elementary education teacher. (42) She had a copy of ’s IEP. (42) Other children were either classified as or (46) Instructional levels were pretty much along the lines of . (46) He started on December 1, 2010 and his last day was the first or second week of January (46)

The parent brought work from ’s regular class for him to work on. (48)

The parent testified that she brought back and forth to School (55) At one point, she asked why there weren’t more children in the alternative instruction, and she was told that a lot of kids can’t get there because they have no way to get there. (55) She took work from his “regular” school, X, to School Y. (56) She asked for the work because she wanted him to keep up. (56)

She asked what sort of work they were working on. (57) She indicated that they were working on the basics, multiplication tables in math. (57) She indicated concern that would fall behind. (57) He did not complete the work that he was given from School X. (57-58) He was graded on the work he was doing on basic skills. (58)

When he returned to School Y, he was tested on material that he hadn’t learned at all at School X. (62)

A letter from dated December 14, 2010 indicated that the student was suspended because of information relating to an incident on . (Exh. 2) The student was to be provided with alternate instruction at the Program, School # and to return to school on January 13, 2011.

The student’s report card dated February 8, 2011, indicated second quarter grades ranging from to (Exh. 4) Grades improved in Math, Science, Social Studies, General Art K, Spanish.

The IEP dated 12/13/10 reflects a subcommittee review and classifies the student with . (Exh. 7) A consultant teacher is recommended for ELA and Social Studies, with a Resource Room recommended for Math. Consultant teacher services were for adaptation of materials and collaboration with the general education teacher “and the activities related to student’s academic, social, emotional, physical and management needs.” Resource room was to insure access to the general education curriculum. The student is to benefit from refocusing and redirection, positive reinforcement plan, parent-school communication, use of a daily planner, modified homework. Testing accommodations are recommended. It is indicated that has behaviors reminiscent of Disorder and is at times off task, makes movements or noises, and needs positive verbal and non-verbal cues to complete work. In Math, he benefits from peer tutoring and could benefit from graphic organizers.

In terms of Social Development, requires a small setting with minimal distractions.

An FBA was recommended. It was determined that the goals in the IEP can be met in at an IAES at a recommended site. Goals relate to writing a 4 paragraph report, a 3 paragraph story or essay, solving multi-step word problems in math, solving single digit multiplication problems without a calculator, identifying his own /behavior and providing an appropriate strategy for resolving the problem/situation.

An IEP dated September 27, 2010 contains similar or identical language but is without the comment section. (Exh. 2)

On a document entitled Manifestation Determination Review, it is handwritten that the document is an appeal of an MDR meeting on 12/13/10. (Exh. 3) The appeal indicated that manifestation does exist and that the District should update the FBA/BIP.

A document entitled Notice of Out of School Suspension indicates that the child was suspended from to by the principal. (Exh. 4)

FINDINGS OF FACT AND DECISION

In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007. 1. Mootness.

The District contends that the parents’ claims are moot, pointing to the fact that the child is no longer suspended and is back in school at his original classroom placement. The United States Supreme Court decision in Honig v. Doe, 484 U.S. 305 (1988) addresses issues of mootness in a context where a child has had behavior problems. In Honig, a child was indefinitely suspended from school after a pattern of behavior including stealing, extorting, and making lewd sexual comments. Though the child no longer even resided within the school district at the time of the Supreme Court appeal, the court heard the child’s claim over objections about mootness, stating:

In the absence of any suggestions that (the student) has overcome his earlier difficulties, it is certainly reasonable to expect, based on his prior history of behavioral problems, that he will again engage in classroom misconduct. 484 U.S. at 320.

The Court stressed that the key inquiry is whether the events in question are capable of repetition, not “more probable than not” to be repeated. 484 U.S. at 320 n. 6. The court also noted that IDEA reviews are often “ponderous,” suggesting that suspended students are often readmitted to school before issues can be heard in due process hearings. 484 U.S. at 317-323. Here, there is nothing in the record to suggest that the student has overcome his earlier difficulties. The record also is consistent with the notion that the student could be suspended for a similarly limited time period once again. Accordingly, I find that here, as in Honig, the student’s conduct is “capable of repetition, yet avoiding review.” Honig, 484 U.S. at 318; see also Application of the Board of Education of the Hyde Park Central School District, Appeal No. 03-075 (noting that “it would be impossible to obtain meaningful review of the appropriateness of an IAES placement” if mootness doctrine were strictly applied). The District’s mootness arguments are therefore without merit. 2. IAES program.

The parents’ Complaint, and the arguments of parents’ counsel, indicate that the IAES alternative placement failed to provide the student with a special education teacher during the suspension period after 10 days.

The state regulations, which track federal regulation, indicate that the District is required to to provide the student with “services necessary to enable the student to continue to participate in the general education curriculum. . .” 8 NYCRR Sect. 201.10(d). The operative word in the federal regulations is “participate,” which is different from “progress” which had been used prior to the regulations implementing the IDEIA amendments of 2004. 34 CFR Sect. 300.530(d); 71 Fed. Reg. 46715 (August 14, 2006). The United States Department of Education commentary to the regulations indicates that the requirement “modifies the concept of FAPE” and that a District is not required to provide “exactly the same services in exactly the same settings as they were receiving prior to the imposition of discipline.” 71 Fed. Reg. 46716 (August 14, 2006). Additionally, the SRO has ruled that even a teaching assistant may be used to provide services during a suspension. Application of the McGraw Central School District, Appeal No. 07-123. Accordingly, I do not agree with the parents that a special education teacher must be employed by the District to provide services during an IAES.

In regard to the parents’ claim during oral argument that the District’s overall provision of IAES services violated 8 NYCRR Sect. 201.10(d) notwithstanding the special education teacher issue, this regulation states that the student shall be provided with services that will enable the student to progress “toward meeting the goals set out in the student’s IEP.” The record here establishes that the District’s instructor received a copy of the IEP and then worked on the “basics” including meeting the math goals set out in the student’s IEP. Mr. testified that the teacher had an IEP and worked on the goals in the IEP. The student also actively participated in instruction and received good grades for the time period corresponding to the suspension and the IAES placement. Though the District should have provided its teacher with a copy of the IEP instead of leaving this task up to the parent, on these facts I do not agree with the parents that the District’s provision of IAES instruction violated 8 NYCRR Sect. 201.10(d), except in regard to transportation, as discussed below. 3. Transportation.

The District’s position is that it has no obligation to provide this student with transportation to the IAES. In fact, the District sent the parent a letter indicated that transportation is her responsibility, regardless of whether she would have been able to transport the student to the IAES.

While the obligation to provide FAPE is modified in an IAES, there is no suggestion in statute, regulation or caselaw that the right to a free education is in any way compromised during placement in an IAES. Indeed, the comments to the federal regulations indicate that the IAES programs must be provided “at public expense, under public supervision and direction.” 71 Fed. Reg. 46716 (August 14, 2006). Nevertheless, the District did not even consider providing this student with transportation to and from school, passing this expense and responsibility off to the parents. Although the parents here ended up expending time and expense taking the student back and forth to school every day, it is the District’s responsibility to provide the student with meaningful access to the placement pursuant to 34 CFR 300.530(d)(1) and also 8 NYCRR Sect. 201.10(d). It should be noted that transportation is part of a special education program and is considered a “related service” in the federal regulations. 34 CFR Sect. 300.34(a).

In this connection, the parents cite to a provision in the NYS Ed. Law requiring “suitable transportation to and from special classes and programs.” Ed. L. 4402(4)(a). Section 4402(4)(a) references Ed. L. Sect. 4401(2), which defines “special services and programs” as Special classes, transitional support services, resource rooms, direct and indirect consultant teacher services, transition services as defined in subdivision nine of this section, assistive technology devices as defined under federal law, travel training, home instruction, and special teachers to include itinerant teachers as provided by the schools of the district of residence with such terms and services to be defined by regulations of the commissioner.

Since the student’s IEP calls for the student to receive consultant teacher services and resource room services, the teacher was in effect functioning as a consultant teacher and/or resource room teacher when working on the student’s IEP goals in the IAES placement. I agree with the parents that the District’s failure to provide the student with transportation to and from the school violated Ed. Law Section 4402(4) as well as federal regulation.

4. Additional Claims.

During their oral presentation, the parents contended that the District improperly failed to discuss the IAES during the subcommittee meeting. A review of the audiotape of the subcommittee meeting reveals that this issue was mentioned but never discussed or resolved at the meeting. This is a violation of 8 NYCRR Sect. 201.10(d), which requires that the CSE or subcommittee determine the IAES placement and services.

The parents also contended that the District improperly convened a subcommittee instead of a CSE to determine the IAES. However, I agree with the District that a subcommittee can convene in this situation due to 8 NYCRR Sect. 200.3(4), which allows a subcommittee to perform the functions of the CSE unless there is a decision pending on “initial placement.” Though the student had never been in an IAES before on this record, in my view the term “initial placement” is not a reference to a temporary IAES placement but a reference to a longer term, such as a placement for students who have not been subject to disciplinary action.

Finally, the parents contended that they were not notified of the alternative instruction until December 1, 2010 even though the student was placed on alternative instruction on November 24, 2010. The District did not respond to this allegation, which was not supported by any witness testimony by the parent.

A letter in evidence dated November 24, 2010 and written to the parents (Exh. 6) indicates that the student was suspended from school by the District. However, there is no testimony and evidence to establish that this letter was received by the parents on the same day. The regulations indicate that the parents should be notified of a suspension on the same day that a decision is made to impose suspension. 8 NYCRR Sect. 201.7(a). It is beyond cavil that a notice should be received before a forthcoming action is to be commenced. The District did not sustain its burden on this issue. As a result, the District violated 8 NYCRR Sect. 201.7(a) by failing to notify parents on the same day that the suspension was imposed.

ORDER

As a result of the foregoing, the following is ordered:

1. Pursuant to the agreement of the parties: 1) the District will conduct a Functional Behavioral Assessment and Behavioral Intervention Plan of the student; 2) the District agrees that the principal of X School # will notify all instructors of the student, through written directive, that all of the student’s homework assignments must be modified pursuant to the student’s current 2010-2011 IEP; 3) the District will expunge the student’s disciplinary record in reference to the incident on 4) the District will provide the student with an additional 35 hours of services, to be provided at a place and time and in an appropriate form reasonably agreeable to the parents and District; 5) such additional services shall be implemented within ten days of the receipt of the parent request for such services; 6) such additional services shall be provided from the effective date of the agreement through June 30, 2011; 7) the District agrees to revise any of the District’s policies and procedures concerning the discipline of students with disabilities that are not in compliance with New York State or Federal Law; 8) the District agrees that manifestation review decisions are to be rendered at the conclusion of the MDR team meeting based upon the review of all relevant information pursuant to the regulations of the Commissioner of Education, 8 NYCRR Sect. 201.4 and Sect. 201.7; 9) the parties agree that the agreement is not intended to be construed as an admission of liability or culpability on part of the District; 10) the District agrees not to challenge any request for reimbursement of attorney’s fees; 11) the District reserves the right to contest the reasonableness of such fees; 12) the agreement is fully binding on the parent;

2. The District violated 8 NYCRR Sect. 201.10(d) by failing to make a determination about the student’s IAES placement during its subcommittee meeting on December 13, 2010;

3. The District violated 8 NYCRR Sect. 201.10(d), 34 CFR Sect. 300.530(d) and NY Ed. L. Section 4402(4)(a) by failing to provide the student with transportation to and from the IAES and by enacting a policy that fails to provide students with transportation to and from an IAES;

4. The District violated 8 NYCRR Sect. 201.7(a) by failing to notify parents of the suspension on the same day that the suspension was imposed, on November 24, 2010;

5. The parents’ other claims are denied.

DATED: March 2, 2011

Brooklyn, NY

IHO

Mootness /no actual effect on the parties/advisory opinion

Transport: see cited cases /related service

– see state law, suitable t – see state regs, progress to general ed – federal comments

Substantially equivalent? Where is this from – federal comments state regs, progress to general education failed to consider, see federal q and a.

After Schaffer v. Weast, 126 S. Ct 528 (2005), the parents bear the burden of “persuasion” in these proceedings.

1. Timeliness of District’s Evaluation, Review and Placement.

This matter involves requests for special education services, allegedly by the parents in September, 2005 and then by the parents by written request in November, 2005.

Regarding the events in September, the father testified that he went to the District offices to register for school and filled out specific forms for special education. He was seeking resource room for his child at the time. He characterized the situation at registration as “chaos.” He provided the District with a copy of Dr. ’s evaluation from 2003.

Though there is no allegation that the parent filled out a consent form, and there are no copies of these records. However, the District did not rebut the parent’s claims that the registration scene was chaotic. The District also did not rebut the implication that the parent’s paperwork might well have been lost in the registration process. The District was not able to impugn the parent’s credibility in any way during the hearing, and the parent testified credibly throughout the course of the hearing. The District also did not indicate how their employees are trained or taught to react to parental requests such as these during school registration.

IDEA places an affirmative duty on state and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the state. 20 U.S.C. § 1412(a)(3); 34 C.F.R. § 300.125(a)(1)(i); 8 NYCRR 200.2(a)(7); New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp.2d 394, 400, n.13 (N.D.N.Y. 2004). This duty applies to "children who are suspected of being a child with a disability…and in need of special education, even though they are advancing from grade to grade." 34 C.F.R. § 300.125(a)(2)(ii). To satisfy the requirement, a board of education must have procedures in place that will enable it to find such children. Application of a Child Suspected of Having a Disability, Appeal No. 01- 082; Application of a Child with a Disability, Appeal No. 93-41.

The child find obligation is an affirmative one. The child find duty is triggered when the district "has reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" St. Pierre, 307 F. Supp. 2d 394; Application of a Child with a Disability, Appeal No. 03-043; Application of a Child Suspected of Having a Disability, Appeal No. 01-082.

Given this obligation, the District should have responded to the parent’s request for serevices through a system whereby such requests are responded to with professionalism and alacrity. The parent request for services in September, 2005 should have have resulted in the parent filling out a formal request for evaluation complete with consent forms. Copies should have been provided to the parent. See Application of a Child with a Disability, Appeal No. 05-027 (informal system of referrals resulted in violations relating to failure to forward referral to CSE, and child find). Instead, ended up not receiving any services for several months, and was not evaluated until the end of January. Accordingly, the District’s actions here violated “child find.”

The father came back to the District in November, and there is no dispute that the parent did file a request and consent in or about November 18. The District concededly did not conduct evaluations within 60 days in violation of 8 N.Y.C.R.R. 200.4(b)(7), though services were ordered on an emergency basis. The District provided no explanation for the failure to conduct such evaluations. Apparently, no evaluations were scheduled in this connection until the date of the hearing request.

After the hearing request, the District then scheduled a CSE review for February 22, 2006 (within the 60 school day time limit), which was cancelled by the parents. The parents provided no explanation for this cancellation. The parents have a duty to cooperate with the CSE in its efforts to assess a student even after the filing of a hearing request. Application of a Child with a Disability, Appeal No. 98-36 (parent did not make child available for evaluations after request). The parents violated this duty and therefore prolonged the already lengthy process of evaluation, CSE review and placement. Accordingly, the District cannot be deemed in violation of 8 N.Y.C.R.R. Sect. 200.4(d) insofar as the November referral is concerned.

Regarding the parents’ allegations of FAPE denial, FAPE denial is premised on a student being eligible pursuant to the IDEA. Application of a Child Suspected of Having a Disability, Appeal No. 99-73 (SRO found child should be classified child given evidence in case and ordered reimbursement). All the evidence here supports the conclusion that should be classified pursuant to the IDEA. of the District indicated that should be classified as of the District suggested resource room for and indicated that there was a “definite discrepancy” between abilities and performance. The reports of teachers are consistent with these assessments, as is the District’s emergency placement of into resource room. Under the circumstances, it is clear that should be classified pursuant to the IDEA.

For IDEA eligible students, 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 student's right to a FAPE has been affected when the procedural violation results in the loss of the student's educational opportunity or seriously infringes upon the parents' opportunity to participate in the development of the student's IEP. Evans v. Bd. of Educ., 930 F. Supp. 83, 93-94 (S.D.N.Y. 1996).

In this matter, the District’s failure to react to the parent’s forms filled out in September resulted in a significant delay of services. Certainly, had a very poor first few months at school. There were no evaluations till January. There was and is no IEP written to provide teachers with appropriate goals or a roadmap on how to instruct with organization issues, writing, or math. Even after the resource room was provided on an emergency basis, there were a number of suspensions and incidents, including an incident involving where a child ended up Teacher reports for the first few months of school indicated very poor performance, including refusal to cooperate, refusal to stay awake, lack of focus.

’s teachers have apparently responded quite well to the parents since the beginning of 2006 and , is apparently doing well now. Additionally, the parents did not provide an explanation for cancelling the CSE meeting in February. Nevertheless, given the lack of progress in the earlier part of the year, I conclude that . has been denied a FAPE for 2005-2006.

2. District’s Improper Classification of

The parents claim that the District improperly classified outside of the CSE process, and also by classifying him as either or The District did not classify at all pursuant to the IDEA. The District labeled through its own system of emergency placement . The parent has provided no authority for the proposition that a District cannot establishing its own “emergency” system of responding to requests for services. Indeed, the District’s system in this regard would appear to be a good way to provide services to children in need even before the evaluations are completed and the CSE convenes. Accordingly, the parents allegations in this regard must fail.

3. District Actions In Connection with Suspension.

The parents claim that the District’s actions during certain school suspensions were unlawful. The parents complain about the vagueness of the notice of the manifestation committee on January 10, 2006 in connection with the review of January 17, 2006, about the composition of the committee on January 17, 2006, and that the committee wrongly found that the actions were not a manifestation of the disability.

The parents’ complaints are implicitly premised on a finding that should have been classified. As stated, supra, I agree that should have been classified by this time and should therefore have been protected by the safeguards in the regulations. 8 N.Y.C.R.R. Sect. 201.4 et seq.

However, there is no evidence that the suspension here was for more 10 days. Pursuant to 8 N.Y.C.R.R. Sect. 201.7, a superintendent may order the placement of a student into suspension for up to 10 consecutive school days without conducting a manifestation review. See also Application of a Child with a Disability, Appeal No. 97-34 (child not suspended for more than 10 days, therefore no nexus determination required). Additionally, though the student had been suspended previously, the parents did not put on evidence to show that all suspensions during the school year were part of a “pattern” as per 8 N.Y.C.R.R. Sect. 201.2(e)(2). Accordingly, the parents’ complaints about the manifestation committee are without merit.

4. Order Directing Additional Evaluations/Social History/Physical/Observation/FBA.

The parents request additional evaluations in this matter, including an evaluation for a disability, to assess Disorder, to assess to assess disorders, and to assess . They also request a social history, a physical, and a classroom observation and an FBA.

A review of the record reveals that the District has completed some educational testing for this child, including intelligence testing by consisting of the Stanford-Binet 5th Edition, the BASC scale, the Bender-Gestalt 2 Edition, the and the Woodcock-Johnson III by .

When viewed together, the Stanford-Binet and Woodcock-Johnson tests provide sufficient data to assess this child insofar as a math disability is concerned; the Stanford-Binet tests for math as Quantitative reasoning as indicated in Ms. ’s report. Ms. ’s Woodcock-Johnson testing also included measures for math. Ms. indicated that her findings in math were consistent with the prior diagnosis of of a disorder. The parents did not call a witness to point out the deficiencies in the or reports. Accordingly, no additional or disability testing is needed.

Regarding Disorder testing, there is a reference to this disorder in Dr. ’s 2003 report but no other support for such a test. The parents did not call a witness to support their claim that such an evaluation is needed and did not explain why this is necessary in their brief. Under the circumstances, Dr. ’s almost three year old reference to

Disorder is too far removed to sustain the parents’ burden on this issue all by itself.

Regarding testing for , the BASC test by resulted in a report of being and , resulting in a recommendation that he classified as “ ” The parents did not call a witness to support their claim that such an additional test is needed on this issue. The parents also did not explain the need for this testing in their brief. The parents have not sustained their burden on this issue.

Regarding testing for , Ms. indicated that ’s handwriting is poor. Dr. ’s report indicated that . has significant a. However, Ms. tested .’s visual motor skills through the Bender-Gestalt 2nd Ed. and found that has developed strategies for copying with a pencil. Further, the parents have not indicated what sort of testing they are asking for along these lines. While the evidence is not strong enough on this point to order testing, I find that the CSE should thoroughly discuss this issue and determine if additional testing is needed to provide appropriate services.

Regarding testing for executive processing disorder, Dr. ’s report refers to disorganization. However, Dr. a’s report is almost three years old, and the parents did not provide any testimony in support of their claims for such testing. I find that the parents have not sustained their burden on this issue.

Regarding a physical, required for initial reviews, there is a letter from , M.D. in evidence to the effect that . has had a physical and is in good condition. The parents have not explained why this document is unsatisfactory and accordingly do not meet their burden on this issue.

Regarding a social history and an observation, required for initial reviews, there is nothing in the record to indicate that the District has completed these documents and I will so order them.

Regarding a functional behavioral assessment, or FBA, this was provided by Ms. (Exh. E1). The parents did not point out any deficiencies with this FBA/BIP, and a review of the document reveals that the assessment and plan are appropriate to meet ’s needs in regard to his problems attending and related issues.

5. Additional Services.

The parents request additional services because was denied services in connection to his suspensions.

Additional services may be provided to make up for educational services not received during a student's suspension. Application of a Child with a Disability, Appeal No.05-096. State Review Officers have awarded equitable relief in the form of additional educational services to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation Application of the Bd. of Educ., Appeal No. 03-075; Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030.

There is no evidence that the suspensions were in any way improper in this matter, and I have already ruled that a manifestation determination was not necessary in view of the length of the suspension here. Accordingly, the parents’ requests in this connection are denied.

ORDER

As a result of the foregoing, I hereby order the following:

1. The District will complete a social history and observation within 10 days of receipt of this decision;

2. The District will reconvene the CSE and classify within 10 days of completing the social history and observation;

3. During such review the CSE will discuss the issue of whether has and discuss whether additional evaluations are needed on this issue;

4. The parents will cooperate fully with the District in this regard;

5. The parents’ other requests are hereby denied.

DATED: BROOKLYN, N.Y.

May 30, 2006

______________________ , I.H.O.