NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
IN THE MATTER OF THE IMPARTIAL HEARING REQUESTED ON BEHALF OF Male X
BY his Mother, Ms. MOTHER, FROM THE SCHOOLS MANIFESTATION TEAM
DETERMINATION OF 09/24/12
SED #
Parents’ Counsel: , Esq.
District Counsel: , Esq.
INTRODUCTION
This hearing is governed by 8 NYCRR 201.[11] and IDEA. Ms. MOTHER requested this hearing on 10/01/12. (D-1) The SCHOOLS (aka “School”) acknowledged receipt on 10/05/12 and formally responded on 10/08/12. (D-2, D-3) The Board of Education appointed me on 10/04/12. The record closed on 11/02/12. The decision is due on 11/09/12.
This hearing was held at School Administrative Offices on 10/19/12 and 10/22/12. Ms. MOTHER didn’t testify. 5 witnesses testified. They were: (School manifestation team st chair aka “Chair”), (School 1 grade special education classroom teacher aka “SPedT”), (School guidance counselor aka “Counselor”), (School psychologist aka “SchPsych”) and (independent PhD psychologist aka “Psych”). The transcript contains 270 pages. Exhibits entered into evidence numbered District 1 – 45 and Parent A-E. Complete exhibit lists are attached to the 10/19/12 transcript. Both attorneys submitted written closing arguments, and those arguments were postmarked 11/02/12.
My findings of fact and conclusions of law [total # of pages herein 14, but shortened to
PARTIES’ POSITIONS
Ms. MOTHER: X is classified with . (D-38; P-A; tr. 51) The Manifestation Team erred when it concluded that X’s conduct (on the 3 days at issue) did not constitute a manifestation of his disability (i.e., ). (D-10) Said conduct was caused by and bears a direct and substantial relationship both to: (1) X’s and (2) the behavioral issues identified by the School which caused the School to recommend the 8-1-1 behavior management class. (D-38 at p. 4, p. 6; tr. 73)
SCHOOL: The Manifestation Team was properly constituted. It followed all of the correct procedures by discussing and reviewing all relevant information and reports. (D-9; D-11; D-12) It reached the correct conclusion that X’s conduct (on the 3 days at issue) (D-23; D-25; D-26; D27; D-28) was not caused by or directly and substantially related to X’s disability. (D-10; tr. 31, 78)
ISSUE
Was X’s conduct (on the 3 days at issue) caused by X’s disability or was said conduct directly and substantially related to X’s disability? Did the Manifestation Team reach the correct result?
ORDER
I find for Ms. MOTHER. I find that X’s conduct was caused by and had a direct and substantial relationship to X’s disability. I find that the Manifestation Team did not reach the correct result in its 09/24/12 determination. Therefore, its determination is null and void.
FINDINGS OF FACT
Background
X lives with his parents in the School District and is a first-grade student at the School. X is a 6 year-old classified with . (D-38; P-A, at p. 2; tr. 51) In August, 2011, Psych evaluated X and diagnosed X with . (P-A; tr. 175-176).
Psych is a Clinical Psychologist and Director of the Psychology Dept. at a local hospital, treating both inpatient and outpatient children and adults. He also works for the County Social Services Dept. as the forensic evaluator for sexual abuse cases of children. He has a PhD in developmental psychology, and post-doctoral degrees in both clinical psychology and life-span development. He trained at a residential treatment facility in Ohio, and a developmental facility in NYS. He was the head of an intensive care locked residential treatment facility in Ohio, as well as a team leader and clinical psychologist, there. He also worked as a clinical psychologist at a children’s hospital in Ohio, and has over six years’ experience evaluating developmentallydelayed children and adults. (P-A; tr. 173-174) He is well-qualified for his position, wellintentioned and credible. Psych reported that X is “at high risk for ” (P-A, at p. 2) and recommended that X’s IEP address the underlying concerns “and not just manage . It is also suggested that .” (P-A, at p. 3) (Emphasis supplied) Psych reported: “ .” (P-A, at p. 2) Psych testified regarding the nature of students , and particularly the nature and specific issues of X’s . Psych testified to X’s “ ” [1], as well as X’s . (tr. 178, 182, 184, 191) Psych testified that, as a result of X’s : (1) X (tr. 185, 219-220); (2) X’s in School (tr. 181, 191); (3) X is very (tr. 183, 192-194); (4) X can , and (5) X’s (tr. 183, 193). Psych testified that when X is presented with . (tr. 199, 226) Thus, he . Psych testified that X’s . (tr. 179-180, 186, 188, 190-191) Psych testified that X . (tr. 229) The that X . (tr. 223-224) Psych testified that the X’s disability makes it . (tr. 156, 178; P-C, at p. 71) As a result, if X’s . (tr. 180) This includes . (tr. 180, 182-184, 188) The 2011-2012 Year X entered kindergarten in a general education classroom in School, with . (tr. 45, 72; P-B, at p. 1) In March 2012, X was suspended for . (tr. 264) Thereafter, from March 8, 2012 until the end of the school year, at the recommendation and request of Ms. MOTHER and Psych, X did not attend School. Instead, he was provided a home instruction program for one hour per day with the School’s modified home instruction program. (tr. 251-2, 264; P-B, at p. 1) Sometime after X’s March 2012 suspension, Ms. MOTHER referred X to the CSE. (P-B, at p. 1) On May 7, 2012, SchPsych evaluated X. (P-B) SchPsych has a B.S in psychology and a M.S. in school psychology. (tr. 142) SchPsych has 25 years’ experience as a school psychologist with the School, and in that position, she has worked with students with . (tr. 143) SchPsych reported that X “tends to be . (P-B, at p. 1, 3) SchPsych reported that when X is presented (id.) SchPsych reported that X’s “ .” (P-B, at p. 2)
SchPsych’s reported Ms. MOTHER’s observations as follows:
(P-B, at p. 2, 3)
On May 9, 2012, the CSE met and recommended in an IEP that X be classified with . (tr. 72-73; D-38) The Present Levels of Educational Performance (PLEP) stated his needs. (D-38, at p. 4) (Emphasis added)
The PLEP also noted:
(D-38, p. 5). (Emphasis added)
The PLEP further states: X .” (D-38, at p.6) Overall, the PLEP was consistent with SchPsych’s and Psych’s evaluations. The CSE recommended an 8-1-1 . (tr. 73, 250-251; D-38)
The Chair2 testified that X required the . (tr. 73) The Chair characterized . (id.). Her description is consistent with the placement. (tr. 73; D-45, at p. 1)
The 2012-2013 Year
X began the 2012-13 year as in a general education classroom. (tr. 46-47, 72) On September 13, 2012, upon receipt of Ms. MOTHER’S consent for the provision of special education services, he was placed in an 8-1-1 class (as per the May [3] 9, 2012 IEP) . (tr. 46-47, 252)
On September 5, 2012, X was suspended for 2 days for (tr. 48-49; D-22; [4] D-23; D-24) (tr. 134-135, 140-141) X , then . (id.)
On September 5, 2012, X’s actions were (P-B, at p. 1; D-38, at p. 4, 6; D41, at p.1; D-45, at p. 1) However, even though she did not personally observe the incident, Chair opined that in that incident, X demonstrated . (tr. 49-55, 73)
On September 10, 2012, X was suspended for 3 days for (D-25; D-26) The incident arose . (tr. 56) When his teacher
2 Like all of the witnesses at the hearing, Chair is well-qualified for her position, well-intentioned and credible. Chair has a BS and MS in education for speech pathology. She is an ASHA-certified and NYS-certified speech pathologist. She is also NYS-certified in administration. She is Special Education Coordinator for Pre-School and Elementary students in the School. She has experience as a CSE Chair and a manifestation team chair. (tr. 43-44) . (tr. 56; D-26, at p.2) He also . (id.) The classroom . (id.) On September 10, 2012, as on September [5], 2012, X’s actions report (P-B) and the IEP (D-38). Again, even though she did not personally observe the incident, Chair opined that . (tr. 57, 73) On September 13, 2012, as noted above, X was placed in an 8-1-1 classroom. (tr. 47) At that time, the classroom had 6 students, including X, together with SPedT5 and a paraprofessional. (tr. 96-97) The classroom had . (tr. 96-97) The classroom is very structured. SPedT focuses on their educations. (tr. 97) On Thursday and Friday, September 13 and 14, X was fine in the 8:1:1 classroom. (tr. 97-98) However, on Monday, September 17, 2012, and the days that followed, X . (tr. 98, 111-114) X . (id.) As a result, a from BOCES came into SPedT’s classroom to help . (id.) Said . (tr. 98-99) Once they determined that . (tr. 99; D-18; D19) During this time, SPedT noticed that X’s students. (tr. 100-108) First, she noticed that . (tr. 100) Specifically, SPedT explained:
(tr. 100) (Emphasis added) SPedT also noted that X’s . (tr. 105) She stated that, in response to : (tr. 105) (Emphasis added) Finally, she noticed that X’s . (tr. 107-08) She explained that students with .” (tr. 108) However, X was .” (tr. 108) SpEdT did not consider X’s . (tr. 106-107, 114-115) However, she acknowledged that children . (tr. 121) On September 21, 2012, X was suspended for 3 days. (D-27; D-28) During the morning ride to school, X told his mother that . (tr. 58, 114, 247; D-4) When he arrived at school, X . (tr. 115) In response, SPedT and the paraprofessional . (id) Initially, X . (tr. 58-59; D-4; D-27; D-28; D-31) When Ms. MOTHER picked X up from school, X .” (tr. 59; D-4) SchPsych . (tr. 161) SchPsych acknowledged that X ”. (P-B, at p. 1) Thus, on September 21, 2012, X’s to the School. Again, even though she did not personally observe the incident, Chair opined that in that incident, as in the previous 2 suspensions, . (tr. 59-60, 73) On September 28, 2012, X was “sent home” (D-17, at p.1). On October 1, 2012 , X returned to school, but was suspended yet again through October 4, 2012. (D-17, at p. 2) Accordingly, of 24 possible school days from September 4, 2012, through October 4, 2012, X was either sent home, or formally suspended, for at least 13 of them (or 54%). (D-17)
The Manifestation Team
As a result of the suspensions, the School Special Education Coordinator for Preschool and Elementary Students determined that she should convene a manifestation determination team, and serve as its Chair. (tr. 43, 60)
On Friday, September 21, 2012, Chair phoned Ms. MOTHER to arrange a mutually-agreeable time for the Team meeting. (tr. 60) They arranged the meeting around Ms. MOTHER’s work schedule so that Ms. MOTHER could attend. (id.) Ms. MOTHER was provided with written notice on the day of the meeting. (tr. 60-61; D-9)
On September 24, 2012, the Manifestation Team met. It was comprised of Chair, the Elementary School Principal, Counselor, SchPsych, SPedT and Ms. MOTHER. (tr. 61, 109, 145; D-12) Chair, SchPsych, Counselor and the Principal had all participated in the May 9, 2012 CSE meeting and knew X well. (D-38, p. 1; tr. 44-46, 131-133, 144) SPedT knew X well because she was X’s 8-1-1 . (tr. 96; D-13 – D-21)
The Team did not include . (tr. 85) Neither Psych nor the aforementioned BOCES specialist attended the meeting. wasn’t asked to attend, even though Ms. MOTHER usually asks him to attend meetings at School. (tr. 203-05; D-12)
The Team heard: Chair’s statement that their purpose was to determine whether X’s suspensions were related to his disability, School Principal’s verbal report concerning the 3 specific incidents that led to the suspensions, SchPsych’s verbal report concerning the , SPedT’s verbal report about two of the 3 incidents and about the IEP , Counselor’s verbal report about the first incident, and Ms. MOTHER’s verbal report about the 3d incident. [6] (D-4; tr. 61-62, 65-66, 110-111, 246-247)
The Team did not discuss: (1) SchPsych’s May 2012 evaluation, (2) Psych’s August 2011 evaluation, (3) X’s needs as described on the IEP, (4) the , or (5) X’s . (D-4) I note that at the hearing, SchPsych acknowledged that (D4; tr. 75-76, 156, 178) and in X’s IEP, the PLEP states that (D-38, at p. 4).
Despite the Chair’s admission that (tr. 254), the Team limited its review to . (D-4; tr. 74, 110, 137, 145-146) SchPsych explained that students could be the result of . (id.; tr. 62)
The Team discussed X’s particular behaviors exhibited during each of the 3 incidents. (D-4; tr. 62-64, 110-11, 147-49) Then, the Team discussed only whether those behaviors were due to . (id.)
Counselor reported that she believed that . (id.) SPedT reported that there . (id.)
Ms. MOTHER explained to the Team that on the day of X’s 3d suspension, X told her in the car in the morning on the way to School that . (id.) Ms. MOTHER explained that X . (id.) Ms. MOTHER reported that when she picked up X at School that afternoon, he (id.) Ms. MOTHER stated that in her opinion: “he .” (id.)
The Team did not discuss the reason that X . (tr. 76-77) The Team concluded that X’s behaviors did not relate . (tr. 70)
The Team focused on how X’s behaviors . (D-4; tr. 62-64, 76) Because the Team believed that X , the Team (including Ms. MOTHER) determined that his behaviors were not a manifestation of his disability. (tr. 66, 70, 85-86, 89-90; D-4; D-11)
The Team (including Ms. MOTHER) determined that the causal factor “was (tr. 62-65, 116-117, 119) The Team members (including Ms. MOTHER) agreed that these behaviors were .” (tr. 148)
Thereafter, the Team discussed whether X’s IEP was being implemented and the status . (tr. 67, 117,119, 153; D-4) SPedT explained that X’s . (id.) The Team ended the meeting in agreement that X’s behaviors were not a manifestation of his disability and that his IEP was being implemented. (tr. 64-65, 70, 116, 119, 148, 151)
Neither Ms. MOTHER nor anyone else provided information to the Manifestation Team to indicate whether X’s behavior was related to any classification or disability other than . As a result, the Manifestation Team focused on the only disability that X had been classified with: . Although there was no information elicited at the meeting indicating that X was suffering from a different disability or should be classified any differently, some members of the Team questioned whether X’s overall behaviors were a result of or whether his diagnosis. (tr. 128)
As a result, immediately after the meeting, Chair, SchPsych and Ms. MOTHER discussed the option of another placement (tr. 70, 88), or of conducting additional medical evaluations to determine whether there was another medical or clinical reason for X’s behavior. (tr. 87-88, 163-64) Chair and SchPsych questioned Ms. MOTHER with respect to the possibility that some other clinical diagnosis may be at play. (id.) Ms. MOTHER has not sought any additional medical evaluations. On September 26, 2012 (the day that X returned to School following his 3d suspension), Ms. MOTHER sent a letter to SPedT, stressing her strong desire for X to be kept in School (i.e., not on suspension). (D-35) On September 27, 2012, Ms. MOTHER submitted a due process complaint challenging the Team’s determination. (D-1)
CONCLUSIONS OF LAW
The burden of proof is on the School District.
I find that the Manifestation Team was not properly comprised on September 24, 2012. The Team included Chair, the Elementary School Principal, Counselor, SchPsych, SPedT and Ms. MOTHER. In partial compliance with the Commissioner’s Regulations, the Manifestation Team included a school district representative who was knowledgeable about the student and about the interpretation of information about child behavior, the student’s parent, and relevant members of the CSE (as determined by the school district). 8 NYCRR § 201.4(b); D- 12.
However, 8 NYCRR § 201.4(b) provides, in part, that: (1) the parent has the right to invite relevant members of the CSE (as determined by the parent) to participate in the Team meeting, and (2) the written notice that the school district is to provide to the parent before the meeting must inform the parent of that right. (Emphasis added)
Chair provided Ms. MOTHER with written notice on the day of the meeting. That written notice properly informed Ms. MOTHER of that right, but by providing the written notice to Ms. MOTHER on the day of the meeting (rather than on the day that Chair arranged the Team meeting with Ms. MOTHER), the School deprived Ms. MOTHER of that right.
I note that Chair did not testify that she verbally informed Ms. MOTHER of that right on September 21, 2012, when she phoned Ms. MOTHER to arrange the Team meeting. I also note that Psych was a member of the May 9, 2012 CSE, but there was no proof that Chair or any other School representative: (1) invited Psych to join the Manifestation Team, or (2) told Ms. MOTHER that she herself could invite Psych (as well as any other members of the May 9, 2012 CSE not yet invited) to participate in the Team meeting.
I find that the Manifestation Team did not properly review all relevant and available information about X. The Manifestation Team should have reviewed all relevant information in X’s file, including his IEP. See 8 NYCRR § 201.4(c). “While courts have not interpreted 8 NYCRR 201.4(c) to be exhaustive, requiring a review of every piece of information contained in a student’s educational file, a manifestation team must ‘review the information pertinent to that decision.’” SRO Decision No. 12-060 (May 3, 2012) citing Fitzgerald v. Fairfax County Sch. Bd., 556 F. Supp. 2d 543, 559 (E.D.Va. 2008).
The Team’s purpose was to determine if X’s conduct was caused by or had a direct and substantial relationship to his disability or was the direct result of the school district’s failure to implement the IEP. 8 N.Y.C.R.R. § 201.4(c)(1)-(2). Here, the Team’s review of X’s records was incomplete and insufficient for its purpose. The Team reviewed X’s 3 suspensions and his behaviors exhibited during the incidents that led to those suspensions. However, the Team did not discuss the specific characteristics of X’s disability, particularly . The Team did not compare the behaviors that led to the suspensions to the behaviors described in X’s BIP, IEP or evaluations.
X’s IEP (as set forth in more detail on p. 4-5 herein) described his behavior as: (D-38, at p. 4) Chair testified , that X required the 8-1-1 placement due to . (tr. 73, D-45, at p. 1)
If the Team had sufficiently reviewed the records, then the relationship between X’s would have become clear, and the Team would have arrived at the correct conclusion: that X’s conduct was a manifestation of his disability.
I find that X’s behaviors were caused by and were directly and substantially related to his disability. The Team focused on whether: (1) X’s conduct related to two narrow “typical” characteristics of autism, and (2) X understood the consequences of his actions. However, the Team’s focus was not correct.
Prior to 2006, Section 201.4(c) required the Team to determine whether: (1) the student’s IEP was appropriate and implemented, and (2) “the student’s disability did not impair the ability of the student to understand the impact and consequences of the behavior subject to disciplinary action; and the student’s disability did not impair the ability of the student to control the behavior subject to disciplinary action.” Appeal No. 05-055, (SRO 2005) citing 8 N.Y.C.R.R. 201.4(c). By revising the regulations, NYSED required a different analysis than the one conducted, here.
The Team’s focus should have been on whether X’s actions were caused by or were directly and substantially related to his disability.
Psych provided credible testimony regarding the nature of students , and particularly the nature and specific issues of X’s . Psych testified that students (see p. 3 herein). Thus, when X . It was instead a direct manifestation of the deficits he suffers as a result of his disability.
The X’s disability presents (tr. 178). This includes smaller as well as larger s. X’s difficulty in the IEP (D-38, p. 4; please see p. 4-5 herein). X’s and his IEP.
I reject the School’s argument that Psych’s testimony should be disregarded because he had no knowledge of the incidents that led to the suspensions. Psych’s testimony was relevant and reliable concerning the nature of X’s disability.
I reject the School’s assertion that its staff did not realize, until the hearing, that X’s . Psych’s evaluation (P-A, at p. 3). SchPsych’s evaluation described (P-B). The IEP noted that (D-38, at p. 3), and his inability to (D-38, at p. 4 and p. 6). The School had sufficient information to realize that . The School presented no evidence as to the critical and careful management they needed to provide for .[7] Without such careful management, not only would directly relate to X’s , it would be expected. This is particularly true where X .
X’s issues with .” SPedT testified that, with learned behaviors the proper way to address them is to teach replacement strategies (tr. 123). Here, reinforced his learned behavior (tr. 123), making any attempt to successful teach a replacement strategy that much more difficult.
Further, Psych suggested that . (P-B, at p. 2) Due to X’s , he does not have the (tr. 226, 228). Thus, he .
Accordingly, the School’s premise fails. That premise is that because X his behavior is completely unrelated to his disability. X’s . Everything related to X’s behavior is .
I find that X’s behaviors may relate to an undetermined disability. Even assuming, for argument’s sake, that X’s conduct somehow is unrelated to , the Team failed to adequately address the concerns of its members regarding possibly undiagnosed disabilities. Two Team members expressed concern that X’s behaviors may be related to an unspecified undiagnosed disability. (tr. 124-125, 127-128, 163-164) The Chair indicated that she suggested that Ms. MOTHER secure an updated behavioral evaluation, but only to get “further supports for X outside of school” (tr. 87-88), which supports the other Team members’ concerns regarding the possibility of alternative causes of X’s misconduct. However, no Team member raised such concerns at the meeting (including a recommendation of further evaluation by the School). Such concerns contradict the Team’s conclusion that X’s behavior was unrelated to a disability, thereby rendering erroneous the Team’s conclusion that his conduct was not a manifestation of a disability.
The manifestation determination is designed to ensure that a student with a disability is not unilaterally removed from his program where the nature of the student’s disability inhibits such student’s ability to conform his conduct to socially acceptable norms. See Honig v. Doe, 484 U.S. 305, at 320, 323 (1988). If Team members suspect a student’s conduct may relate to an as yet undiagnosed condition, then they should raise those suspicions so that the Team (and CSE generally) can take appropriate action. If a Team member suspects a student with a disability is exhibiting an undiagnosed condition that nevertheless inhibits the student’s ability to adhere to the code of conduct, then it violates that student’s entitlement to a free appropriate public education if such suspicions are ignored and the student is punished as if he were not disabled at all. Here, the appropriate action would have been to table the Team meeting until the suspected additional disabilities could be properly evaluated and the results shared with the Team to fully review the nature of the conduct in question.
I find that neither Ms. MOTHER’S delayed consent to services, nor her agreement at the Team meeting, prejudiced the School.
Ms. MOTHER agreed with the Team’s finding of no manifestation (notwithstanding her subsequent letter to SPedT pleading for X to be kept in School, and the instant due process complaint). However, it is clear that the Team did not rely on her agreement to its detriment.
To the contrary, any objection by Ms. MOTHER would not have altered the outcome of the meeting. Chair explained that, as chairperson, she was responsible for making the decision if there was no consensus. (tr. 263) See also Questions and Answers on Discipline Procedures, 52 IDELR 231 (OSERS 2009), at p. 7, Question F-1 (if the parent and the LEA cannot reach consensus, the public agency must make the determination). Chair testified that, notwithstanding the evidence presented at the hearing relating to the specific characteristics of X’s disability, she had not changed her opinion re manifestation. (tr. 262)
Similarly, Ms. MOTHER’s delayed consent to the provision of special education services had no bearing on the direct and substantial relationship between his conduct and his disability. Despite that delay, X was identified as a student with a disability pursuant to Section 504, which, like the IDEA, requires a manifestation review following a pattern of suspensions (tr. 267). See also South Harrison County (MO) R-II School District, 51 IDELR 110 (OCR 2008).
The proof shows that X regardless of his specific setting. SPedT testified that she was . (tr. 125-128)
I find that the Team’s determination of no manifestation had immediate negative consequences to X, in that it denied him a FAPE. A finding of manifestation would have required the School to immediately return X to his special education program, or offer an appropriate alternative program (as recommended by the CSE) on an expedited basis. Here, the finding of no manifestation meant that X remained on suspension, and permitted the School to continue suspending him without exploring appropriate changes to his IEP. The suspension also reinforced his learned behavior .
Additionally, the current situation is capable of repetition yet evading review. X is a first grade student, and has manifested behavioral difficulties ( ) from his preschool years through the present. (tr. 237, 264) Although his program has changed, “it is certainly reasonable to expect, based on his prior history of behavioral problems that he will again engage in .” Honig, 484 U.S. at 318-319, 320 (case not moot notwithstanding that student was twenty years old and not presently attending school)8. This is particularly true if X receives a special education program unable to address . A decision on the merits is critical to ensure that future is appropriately reviewed by a manifestation team, and his program is not inappropriately interrupted again by a pattern of suspensions.
8 The SRO’s conclusion that a dispute over a manifestation determination had become moot is inapposite, since there (unlike the instant proceeding) the SRO found no reasonable expectation that the student would again engage in misconduct. Appeal 11-064, (SRO 2011).
Footnotes
[11] because of redaction] are attached hereto and have been mailed to Attorneys by certified mail, return receipt requested. PLEASE TAKE NOTICE! Within 35 days of the date of this decision, the parent and/or school district has THE RIGHT TO APPEAL this decision to the State Review Officer of the NYS Education Dep't under Education Law Section 4404 and IDEA. "The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35- day period." 8 NYCRR 279.2(b). Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision. 8 NYCRR Part 279 contains the rules of procedure. Directions and forms can be found in the website of the Office of State Review: www.sro.nysed.gov/part279home.html. Impartial Hearing Officer: Joan B. Alexander, Esq., Date: 11/09/12 As a result of a referral by X’s primary care physician, Psych has treated X for about 2 years, and currently treats X, related to X’s . (tr. 175)
[1] SPedT and Psych both testified that X’s . (tr. 106, 123, 183, 190, 192-195) A learned behavior is a pattern of behavior in response to changes in environmental exposure. (tr. 182) Psych testified that X’s . (tr. 232-233)
[3] Both the general education and 8-1-1 classrooms were located at X’s neighborhood elementary school. (tr. 47)
[4] Counselor is NYS-certified in school counseling, and has 25 years’ experience as a counselor at School. (tr. 131) She worked with X in kindergarten and in 1st grade. (tr. 132-133)
[5] SPedT has a degree in childhood and special education, and is NYS-certified to teach grades 1-6. She has experience as a special education classroom teacher, and as an aide for a student . (tr. 94-95)
[6] Chair testified that in preparation for the Team meeting, she reviewed the suspension documentation, X’s file (which included his diagnosis by Psych), his IEP, . (tr. 66) SPedT testified that in preparation for the Team meeting, she reviewed the , the IEP and . (tr. 118) SchPsych testified that in preparation for the Team meeting, she reviewed X’s , psychological evaluations, the , background information and IEP. (tr. 152) Counselor testified that in preparation for the Team meeting, she reviewed Psych’s evaluation, as well as some teacher reports on specialist. (tr. 136)
[7] I note that the IEP was not in effect at the time of the first 2 suspensions, because Ms. MOTHER consented to the provision of special education services AFTER those 2 suspensions. Thus, the question of appropriate implementation of the IEP, if it is to be reached at all, should be limited only to the 3d suspension.