The State Education Department
State Review Officer

No. 90-10

Application of a CHILD WITH A HANDICAPPING CONDITION, by her parent, for review of a determination of a hearing officer relating to the educational program provided by the Board of Education of the Brentwood Union Free School District.


Janis Weissman, Esq., attorney for petitioner

Bernard T. Callan, Esq., attorney for respondent


Petitioner appeals from a determination of an impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) that petitioner's daughter be educated for the 1990-91 school year in a special education class of the school district, rather than in the private school favored by petitioner. The appeal must be sustained in part.

Petitioner is the mother of a four year old student who has been diagnosed by a child psychiatrist as having a pervasive developmental disorder, a condition which may include impairment in reciprocal social interaction, impairment in communication, impairment in imaginative activity and resistance to changes in routine. The child has been observed by the staff of the private preschool program in which she was enrolled for the 1989-90 school year and by her mother to display ritualistic play behavior, to be upset by changes in routine, to talk to imaginary individuals and to assume the personality of one of those imaginary persons on a few occasions. The child is described by her evaluators as being at or above her age level in cognitive skills. However, her poor social interaction and occasionally regressive behaviors require that she receive instruction in a special class. On April 19, 1990, the CSE classified petitioner's daughter as emotionally disturbed. That classification is not in dispute in this appeal.

In October, 1987, petitioner enrolled her daughter in a special education preschool program provided by the Association for Children with Learning Disabilities (ACLD) in Bay Shore, New York. During the 1989-90 school year, the child received special education for two and one-half hours each day at the ACLD. Speech therapy, occupational therapy, and the services of a psychologist and social worker were also provided to the child at the ACLD.

The child was reviewed by the CSE in April, 1990 to determine an appropriate program for her first year of schooling as a school-age child during the 1990-91 school year. Representatives of the ACLD attended the April 19, 1990 meeting of the CSE, to assist the CSE in understanding the needs of this child. The CSE then recommended that the child be placed in a school district operated special education class with a maximum of 12 pupils, to be taught by one teacher and one full-time aide. The CSE recommended an additional full-time aide be assigned to the class to provide assistance exclusively to petitioner's daughter, because of the child's poor social skills and emotional condition. The CSE also recommended that speech therapy and occupational therapy be provided to petitioner's daughter.

In May, 1990, the child's psychiatrist and several ACLD staff wrote to the CSE to express their concern about the proposed placement. They recommended that in their opinion the child needed a class with a smaller pupil-teacher ratio and a twelve month program. Thereafter a school district psychologist, special education teacher and speech teacher observed the pupil at the ACLD. The child and her mother also visited a special education class at respondent's Pine Park School. Nonetheless, the CSE did not alter its previous recommendation. Thereafter, petitioner requested that an impartial hearing be held to review the CSE's recommendation.

In a decision dated August 6, 1990, the hearing officer found that the placement recommended by the CSE was appropriate for the child. The hearing officer further directed that respondent's staff give special attention to the child when she engages in large group activities. The hearing officer also ordered respondent to evaluate the child's need for a twelve month education, but did not specifically direct respondent to provide a twelve month program.

In her appeal petitioner maintains that respondent failed to meet its burden of proof in establishing the appropriateness of the placement recommended by the CSE, and that her daughter should be placed in a class which does not exceed six pupils, and is staffed by one teacher and one aide. Petitioner also maintains that the proposed placement is inappropriate because it does not include provision for a twelve month program in the same setting to avoid the changes in routine which upset her daughter, and the child's individualized education plan (IEP) does not provide for appropriate related services. She asks that I find that her daughter would be appropriately placed in a special education class offered by the Suffolk Child Development Center, a private school.

It is well settled that a board of education bears the burden of establishing the appropriateness of its recommended program or placement (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Matter of Handicapped Child, 23 id. 415; Matter of Handicapped Child, 25 id. 353; Application of a Child with a Handicapping Condition, 27 id. 335; and Application of a Child with a Handicapping Condition, 29 id. 83). An appropriate program is one which is reasonably calculated to enable a child to receive educational benefits (Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176).

The class recommended by the CSE is in respondent's Pine Park School, which has an enrollment of approximately 500 pupils, about 30 of whom are in special education programs. The students in the proposed class are classified as learning disabled, and some have emotional overlay, in addition to their learning disabilities. They are of average or above average intelligence, like petitioner's daughter. The Director of Special Services testified that a social worker and school psychologist would be available in the school building for therapeutic intervention, and that physical therapy, occupational therapy and speech therapy could be provided as directed by the terms of the child's IEP. Assistance from respondent's staff to the parents of children with handicapping conditions is also available at the Pine Park School.

At issue in this appeal is whether the child's needs can be addressed in a class where the pupil-teacher ratio is 12 to 1 plus an aide (12:1+1), as proposed by respondent, or whether she requires placement in a class with a pupil-teacher ratio of 6 to 1 plus an aide (6:1+1), as sought by petitioner. 8 NYCRR 200.6(a)(1) requires respondent to place each child in the least restrictive environment, to the maximum extent appropriate. Placement in a class of no more than 6 pupils with a teacher and one aide is more restrictive than placement in a class of 12 pupils with a teacher and an aide.

I find that petitioner's daughter does not require a placement in the more restrictive environment of a 6:1+1 class, and that her needs can be served in the 12:1+1 class recommended by the CSE. Although the staff of the ACLD initially expressed a preference for a smaller class than that proposed by the CSE, their testimony at the hearing did not support the conclusion that this child needs a class of no more than six students. The child's social worker at the ACLD testified that class size is not as critical an issue as possible changes in the composition of the class during the school year. There is no reason to believe that the composition of the proposed class will change significantly. More importantly, I note that the child has made progress towards achieving the goals of her IEP at the ACLD while she was in a class of eight pupils. Although there could be a maximum of twelve students in the class recommended by the CSE, Respondent's Director of Special Services testified at the hearing that said class would probably not exceed eight students, including petitioner's daughter. However, even if the size of the class should exceed eight pupils, I am not persuaded that the student will be unable to successfully function in the class, because she will have a full-time aide to work exclusively with her.

Section 200.6 (f)(2) of the Regulations of the Commissioner of Education requires, with certain qualifications, that pupils with handicapping conditions be grouped by similarity of needs. Although the record in this appeal does not include a formal class profile, that fact per se does not demonstrate that respondent failed to establish the appropriateness of the recommended placement. The issue is whether the record does include adequate information to determine whether the needs of the pupils are sufficiently similar to enable a teacher to address those needs in a single class (Matter of a Handicapped Child, 25 Ed. Dept. Rep. 353).

The record indicates that all of the children in the proposed placement at the Pine Park School would have similar levels of academic achievement and learning characteristics, and there is no indication that any pupil would have an unusual level of physical development. The more crucial issue is whether the pupils' levels of social development and management needs are comparable. The other pupils have management needs which require a teacher and one aide, which is similar to the classroom management structure of the class in the ACLD which petitioner's daughter attended in the 1989-90 school year. The child's teacher at the ACLD testified that a third adult, a speech teacher, was also usually present in the classroom with the eight pupils in the class. However, the child's teacher did testify that a pupil-teacher ratio of 8:1, with an aide familiar with the child's needs would be appropriate for the child's needs. The proposed placement would have a teacher and two aides, one of whom would be assigned specifically to petitioner's daughter, which should permit the teacher to address the educational needs of all of the pupils. Although little information has been presented regarding the social needs of the other pupils in the proposed placement, there does not appear to be any child with as serious social skill deficits as those of petitioner's daughter. However, this child should not be placed in a class with other students with serious deficits in their social skills, which could lead to the child's behavioral regression. The record reveals that the other children in the class could be positive role models, which would be beneficial to the child. Therefore, I conclude that the needs of the pupils are sufficiently similar to support the placement of petitioner's daughter in the class at the Pine Park School.

With regard to the adequacy of the child's IEP for the 1990-91 school year, I find that the IEP should be amended to include counseling by a school psychologist and the services of a social worker to assist the classroom staff in maintaining a highly structured and supportive environment in the school and to work with the child's family to provide appropriate follow-up intervention activities at home, as recommended by respondent's psychiatrist (34 CFR 300.13[b][6]).

The CSE did not address the issue of a twelve-month program for this child in the IEP which was prepared as a result of its April 19, 1990 meeting, apparently because the child was to remain at the ACLD during July and August, 1990 and the CSE intended to conduct its next annual review in April, 1991. At the hearing, respondent's Director of Special Services stated that a program could be provided during the months of July and August, but that the program would be offered in a building other than the Pine Park School during the months of July and August. Petitioner maintains that her child requires a twelve month program in one location, to avoid a change in routine which is upsetting to the child.

Section 4402 (2)(a) of the Education Law requires boards of education to furnish suitable educational opportunities for children with handicapping conditions, either during the traditional ten month school year, or for twelve months with respect to those students whose handicapping conditions are severe enough to exhibit the need for a structured learning environment of twelve months duration. In order for a child to be eligible for a twelve month program, the child must have a handicapping condition which is:

"severe enough to exhibit the need for a structured learning environment of twelve months duration to maintain developmental levels as determined by the committee on special education (8 NYCRR 200.6[j][1][v])".

Although the CSE failed to indicate on the child's IEP whether she is eligible for a twelve month educational program as it was required to do pursuant to 8 NYCRR 200.4 (c)(2)(v), I find that there is adequate information in the record to determine that the child needs a twelve month program to maintain her developmental levels. The absence of a structured educational program for a two month interval would lead to an increase in her inappropriate behaviors and regression in her social skills. I shall direct the CSE to revise the child's IEP to provide for a twelve month program, the summer portion of which shall be comparable to the program provided during the ten month school year.

This child's difficulty in adjusting to change is well established in the record. However, the record also reveals that the child has experienced changes in the location of her class at ACLD and in the personnel who interacted with her in that program. Respondent's psychiatrist, who has examined the child, testified that although she needs a continuity of program, the summer portion of the program need not be provided with exactly the same staff and pupils or at the same location as the program provided during the ten month school year. An important goal for this child is to be able to interact with different peers and adjust to new situations. Therefore, I am not persuaded that an appropriate program for this pupil must necessarily be at a single site for twelve months, as sought by petitioner.

Finally, I note that petitioner has alleged in an affidavit submitted after her child entered the special education class at the Pine Park School in September, 1990 that a social worker from the State University of New York at Stony Brook Child Psychiatric Clinic who was asked by the child's psychiatrist to observe the girl in her classroom was denied permission to do so by respondent's staff. Although respondent has not directly responded to this allegation, I must emphasize the importance of trust and cooperation between respondent's staff and petitioner to facilitate private counseling and collaboration with the school. This child has a serious emotional problem which will require the best efforts of petitioner, the child's private therapists and respondent's staff in order to implement a coherent and effective remedial program for the child. Respondent's alleged refusal to permit the observation by the social worker does not appear to be justified, and I exhort respondent to make every reasonable effort to work with petitioner for the good of the child.


IT IS ORDERED that, within 30 days after the date of this decision, respondent's CSE shall prepare a revised IEP for petitioner's daughter which shall provide that the pupil is eligible for special educational programs and services on a twelve month basis, and which shall provide for appropriate psychological services and counseling for the pupil and her parents, as indicated in this decision.

IT IS FURTHER ORDERED that at its next annual review in April, 1991, the CSE shall recommend an appropriate program to be provided to the pupil during the months of July and August, 1991.

Dated: Albany, New York                                                                 _________________________
           October 22, 1990                                                                       HENRY A. FERNANDEZ