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The State Education Department
State Review Officer

No. 90-11

Application of a CHILD WITH A HANDICAPPING CONDITION, by his parents, for review of a determination of a hearing officer relating to the educational program provided by the Board of Education of the City School District of the City of Mount Vernon.

Appearances:

Steven L. Kroleski, Esq., attorney for petitioners

D'Andrea and Goldstein, Esqs., attorneys for respondent,

Vincent P. D'Andrea, Esq., of counsel

DECISION

Petitioners appeal from the determination of an impartial hearing officer upholding the recommendation of respondent's committee on special education (CSE) that petitioners' son be placed in a regular six grade class, with the assistance of resource room and other related services, for the 1990-91 school year. The appeal must be dismissed.

Petitioners' son was classified as learning disabled by the CSE on June 21, 1990, as the pupil completed fifth grade at respondent's Pennington-Grimes Elementary School. The pupil is of normal intelligence, and the record reflects that he has progressed at the normal rate through elementary school. However, in the third grade he was referred by his teacher to a school psychologist, because he was allegedly having trouble keeping up with the class. In January, 1988, the school psychologist noted that the pupil had some difficulty with his short-term auditory memory. More recent evaluations performed by respondent's staff confirm that the pupil has a deficit in his short-term auditory memory, and suggest that he may also have a deficit in his short-term visual memory. Petitioners had their son evaluated at the College of New Rochelle in May, 1990. They also had an audiologist evaluate their son in June, 1990. The results of these private evaluations are consistent with those by respondent's staff, in finding that the pupil has difficulty in processing and retaining information acquired auditorily. The pupil's classification as learning disabled was not in dispute at the hearing, and is not disputed in this appeal.

In her January, 1988 evaluation, the school psychologist recommended that petitioner's son receive assistance from a speech pathologist in the area of language processing, as well as remedial help in his academic subjects and counseling. The pupil received remedial reading while he was in the fourth and fifth grade, but was not provided with either speech/language therapy or counseling by respondent.

On June 21, 1990, the CSE recommended that the pupil be placed in a regular sixth grade class in the Pennington-Grimes Elementary School, with resource room services to be provided one hour per day on three days of each week, in a group not to exceed five pupils. The CSE also recommended that the pupil receive speech/language therapy in a group setting in two 30 minute sessions each week, and that he receive individual counseling for 30 minutes each week.

Petitioners requested that an impartial hearing be held to review the recommendation of the CSE. A hearing was held on July 20, 1990. By decision dated August 10, 1990, the hearing officer found that the program proposed by the CSE was appropriate to the needs of petitioners' son and, consistent with Federal and State law, it was in the least restrictive environment.

Petitioners maintain that the placement of their son in a regular sixth grade is inappropriate because their son will not receive enough individualized instruction and will become distracted by the noise inherent in a class of that nature. They also maintain that the resource room program will not be effective because the pupils in such program are inappropriately grouped. Petitioners assert that their son requires intensive services to remediate his auditory deficits. They request that I direct respondent to place their son in a self-contained class for learning disabled pupils in Project Learn, a program offered by the Board of Cooperative Educational Services of Westchester County (BOCES).

Respondent maintains that it has offered an appropriate program for petitioners' son in the least restrictive environment.

A board of education is obligated to provide an appropriate program to each pupil with a handicapping condition. An appropriate program is one which is reasonably calculated to enable a child to receive educational benefits (Board of Education of the Hendrick Hudson School District v. Rowley, 458 U.S. 176). To the maximum extent appropriate, each pupil with a handicapping condition must be educated in the least restrictive environment (34 CFR 300.550 [b][1] and 8 NYCRR 200.6 [a][1]). Consequently, this pupil may not be placed in a self-contained class for pupils with handicapping conditions, unless he cannot be educated in a regular class with the use of supplementary aids and services, such as resource room services (34 CFR 300.550 [b][2]).

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). I find that respondent has established the appropriateness of the recommended program for petitioners' son.

Petitioners' son was referred to the CSE because of his difficulty in focusing and remaining on task during large group instruction. His fifth grade teacher testified at the hearing that petitioners' son worked satisfactorily in small group activities, but required a high degree of teacher supervision to remain on task. Although the pupil did not fail any subject during fifth grade, he was less successful in fifth grade than in previous grades. On standardized tests administered in April, 1990, petitioners' son demonstrated reading skills at a mid-fifth grade level and his mathematical skills were at a mid-seventh grade level. His language arts skills were also at a mid-seventh grade level. The fact that he received a below average final grade in language arts in fifth grade, despite the results of the standardized testing, suggests that petitioners' son is not achieving at a rate commensurate with his skills.

Petitioners' son clearly requires specialized assistance which will enable him to remain at or above grade level in school and which will help him compensate for his deficits in auditory processing and/or retention. The record reveals that respondent's resource room teacher will serve a total of four students, including petitioners' son. The resource room teacher will work with the pupil's regular class teachers to monitor his progress in the classroom and to help him succeed in his regular educational program. In particular, the resource room teacher will work with the student to improve his independent reading skills, which should enable him to remain at grade level in each of his subjects of instruction. The pupil's deficits in receptive language skills will be addressed by the provision of speech therapy. The speech/language therapist, as well as the resource room teacher, should be able to help petitioners' son to develop strategies to overcome his deficits in receptive language.

The record also reveals that petitioners' son has become concerned about his academic performance and his inability to perform academically as well as his sibling. He becomes frustrated if he does not readily achieve what is expected of him. The pupil's IEP provides for individual counseling for 30 minutes each week. Counseling should provide the pupil with insight about his learning difficulties and the ways in which he can work to overcome his difficulties.

Petitioners' son has not previously received special educational services. Although petitioners suggest that respondent simply failed to provide needed services at an earlier time, I must note that on the record before me there is an insufficient basis for concluding that the pupil should have been classified as having a handicapping condition prior to June, 1990. It is now clear that he is properly classified and should be receiving special educational services. It is essential that the pupil have the opportunity to continue to participate in regular education, with the assistance of supplementary services, before concluding that his continued placement in regular education is inappropriate.

I have carefully considered petitioners' assertion that their son's handicapping condition is so severe that his educational needs cannot be met with regular education plus supplementary services. Petitioners' assertation is clearly untenable, in view of their son's continued academic progress even without the assistance of supplementary services. I must also note that neither the pupil's evaluators at the College of New Rochelle nor the audiologist who testified on behalf of petitioners at the hearing expressly concluded that the pupil could only benefit from instruction in a special class setting. While such a setting was clearly the preference of the audiologist, the audiologist appeared to be uninformed as to the nature of the services provided by a resource room teacher, especially with regard to working with the pupil's individual learning style. The evaluators at the College of New Rochelle recommended that the pupil receive after-school tutoring and increase his independent reading activities. The latter is a goal in the pupil's IEP, and the resource room would clearly provide the kind of individual assistance which the pupil would receive from tutoring.

Petitioners object to the resource room program on the grounds that the students will allegedly be inappropriately grouped and that the program is so new that they do not have sufficient information such as its room location. The testimony of respondent's witnesses revealed that each of the pupils in the resource room would be learning disabled and that the placement of each pupil would be age appropriate. Although the pupils would be working at differing grade levels, there is no indication in the record of a substantial disparity in their skills. In view of the highly individualized nature of the instruction provided in the resource room, there is no basis whatsoever for concluding that petitioners' son would be inappropriately placed in the resource room to be located in the Pennington-Grimes Elementary School. The fact that the program was to be newly located at their son's school does not per se afford a basis for concluding that it would be inappropriate to address his educational needs.

I have considered petitioners' remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

Dated: Albany, New York                                                                 _________________________
           November 19, 1990                                                                    HENRY A. FERNANDEZ