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


Nassau/Suffolk Law Services Committee, Inc., attorneys for petitioner, Jeanne Schieck, Esq., of counsel

Kraemer and Mulligan, Esqs., attorneys for respondent, Robert F. Mulligan, Esq., of counsel


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 son be placed in a special education program operated by the Nassau County Board of Cooperative Educational Services (BOCES). The appeal must be sustained.

Petitioner's son is 16 years old. A proposed individualized education program (IEP) developed by the CSE on March 8, 1990 identifies the student as emotionally disturbed, learning disabled and speech impaired. In his decision, the hearing officer refers to petitioner's son as learning disabled. Petitioner maintains that her son requires counseling and speech/language services, but does not identify the nature of his handicapping condition. The record before me does not include a copy of the student's IEP which was in effect for the 1989-90 school year, although the testimony of the chairperson of the CSE revealed that the student was provided with instruction in a special education class for most of that school year. Although the parties may be in agreement as to the nature of the student's handicapping condition(s), it is nevertheless essential that they include in the record before the hearing officer sufficient information about the student so that an informed decision can be made concerning an appropriate program for the student.

The record does reveal that while attending school at respondent's junior high school, petitioner's son was suspended from school in February, 1989. It is not clear from the record whether petitioner's son had been classified as having a handicapping condition prior to his suspension from school, and the record does not reveal the reason for the student's suspension. Petitioner's son received instruction at his home for the remainder of the 1988-89 school year from a tutor employed by respondent. Petitioner does not challenge her son's long-term suspension from school (cf. Honig v. Doe, 484 U.S. 305).

No provision was made by respondent for the student's instruction at the beginning of school in September, 1989. At that time, respondent's staff was allegedly exploring the possibility of placing the student in either a day or residential private school. However, those efforts were apparently unsuccessful. The record does not reveal why the CSE had concluded that a more restrictive placement in a private school was required, nor does it reveal the reason why respondent was unable to secure such a placement.

In October, 1989, petitioner requested that the CSE meet with her to develop an alternative to her son's program of home instruction. On or about November 16, 1989, petitioner met with the CSE, at which time an IEP was prepared for her son. Unfortunately, that IEP is not included in the record before me. The chairperson of the CSE testified at the hearing that petitioner's son was enrolled on or around December 21, 1989 in a special education class located in respondent's high school. The CSE chairperson described the student's placement as a self-contained class of not more than 18 students with one teacher and one aide. Students in the special class changed classrooms for instruction in different subjects. Petitioner's son was mainstreamed for physical education and woodworking classes, as well as for lunch. The chairperson further testified that a school psychologist, social worker and 3 guidance counselors were assigned to provide support services to students in the high school, but did not reveal what, if any, services were to be provided to petitioner's son, pursuant to his IEP.

In February, 1990, the high school principal referred petitioner's son to the CSE because of the student's poor school attendance and allegedly insubordinate behavior while he was present in school. On March 8, 1990, the CSE prepared a new IEP for petitioner's son, which provided for his placement in a class of not more than 9 students with a teacher and one aide. The proposed placement, which was to be implemented in April, 1990, was in the Career Development Center of the Nassau County BOCES.

Petitioner objected to the recommendation of the CSE that her son be placed in a class which did not exist in respondent's schools, and requested that a hearing be held. A hearing was held on August 14, 1990. By decision dated August 27, 1990, the hearing officer found that respondent had been remiss in not promptly providing for the student's readmission to school, and had failed to provide him with language therapy. However, the hearing officer further found that the student had not availed himself of the educational opportunities presented to him in the Westbury High School, and that the testimony of petitioner's witnesses as to the inappropriateness of the recommended placement was not convincing.

Petitioner maintains that respondent has failed to justify the more restrictive placement of her son in a BOCES class, because respondent failed to demonstrate that it had attempted to provide him with sufficient support services to allow him to function successfully in the less restrictive environment of his class in Westbury High School. Petitioner further maintains that respondent failed to provide sufficient evidence to establish the appropriateness of the proposed placement.

Respondent is obligated to provide an appropriate program for petitioner's son. An appropriate program must include instruction specifically designed to meet the unique needs of the pupil, which is supported by such services as are necessary to permit the pupil to benefit from instruction (Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176). 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).

Federal and State regulations require that, 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]). As the proponent of the more restrictive placement of petitioner's son in a BOCES facility which exclusively serves pupils with handicapping conditions and which is intended to serve pupils with fairly intensive management needs, respondent must show that the educational needs of petitioner's son cannot be met in the less restrictive placement of a special class in the Westbury High School and that the recommended and more restrictive placement is appropriate for the student (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 1; Application of a Child with a Handicapping Condition, 29 id. 52; Matter of Bd. of Ed. of Ed. Liverpool CSE, 29 id. 77). I find that respondent has demonstrated neither the inappropriateness of the student's present program at Westbury High School nor the appropriateness of the recommended BOCES program.

As evidence of the inappropriateness of the student's present placement, respondent offered the testimony of the student's teacher of English and Mathematics, and the written anecdotal records prepared by that teacher and one other teacher, as well as two student discipline referrals prepared by the latter teacher. Respondent also submitted a letter from the high school principal, which stated that petitioner's son had been absent from school on 6 days and late to school on 2 other days in February, 1990. I note that one record submitted by respondent shows that the pupil was absent on 3 days in December, 1989 before he was readmitted to school in that month. Although the written reports reveal that the student was frequently absent from school from December, 1989 through February, 1990, there is no evidence as to whether such absences were for legally valid reasons. There is also no evidence of what, if any, steps were taken by respondent's staff to assure the student's attendance on a regular basis, or of the student's attendance record for the remainder of the 1989-90 school year.

The anecdotal records of the student's teachers and the student disciplinary referrals reveal that petitioner's son needs to adopt a more serious attitude about school, but they do not demonstrate that he has significant management needs which could not be addressed in his present placement. The student's teacher of English and Mathematics testified at the hearing that petitioner's son was capable of doing the academic work, but that his achievement had been limited by his failure to submit homework assignments and his frequent absences. The record does not reveal whether any attempt was made by the student's teacher to alter the student's negative behavior. Although the student briefly referred to counseling from a school social worker during his testimony, respondent presented no evidence of such counseling or any other supportive service at the hearing. On one occasion, the student was referred to the school psychologist. The psychologist testified that the student was not receptive to the psychologist's suggestion that they deal with a particular incident without resort to the student's mother. The hearing officer's conclusion that the student refused counseling with the school's psychologist, based upon this single incident, is wholly unwarranted. In the absence of sufficient evidence of respondent's minimally acceptable efforts to address the student's management needs in his present placement, there is no basis upon which either the hearing officer or I could conclude that the student's present placement is appropriate.

The record is also inadequate with regard to the proposed placement. The record includes a one and one half page summary description of the services provided for two programs at the BOCES Career Development Center, and the testimony of the CSE chairperson with regard to the BOCES programs. At the hearing, the CSE chairperson testified that the CSE had recommended a BOCES "Tier 4" program. The descriptive material from BOCES reveals that its Tier 4 program consists of a class of 9 students who are taught by a teacher with the assistance of two paraprofessionals, while the Tier 3 program consists of a class of 9 students, a teacher and one paraprofessional. Although the CSE chairperson testified that the CSE had recommended the Tier 4 program, I note that the IEP prepared by the CSE recommends that he be placed in a class of 9 students who are taught by a teacher with the assistance of one paraprofessional, which is the less restrictive Tier 3 program. Nevertheless, the hearing officer found that the more restrictive Tier 4 program was appropriate.

8 NYCRR 200.6(f)(2) requires that the composition of a special education class shall be based upon the individual needs of the pupils in such class. Four factors are to be considered: the pupils' level of academic achievement and learning characteristics, their levels of social development, their levels of physical development and their management needs. The record is devoid of any evidence as to the skills and needs of the other pupils in the proposed class. There is also a paucity of information as to how the proposed program would address this student's needs. In essence, the testimony of the CSE chairperson revealed that a higher level of support services would be available to the student in the BOCES program, notwithstanding the fact that the March 8, 1990 IEP provides only for group counseling twice each week for 30 minute sessions. The chairperson also described the BOCES program as a supportive and nurturing environment, but did not explain why it was more supportive and nurturing then the student's present setting. I find that respondent has failed to establish the appropriateness of the proposed placement (Application of a Child with a Handicapping Condition, Appeal 90-5), and that the hearing officer erroneously shifted the burden of proof to petitioner by observing that the testimony in opposition to the placement was not convincing.

It is imperative that respondent's CSE reconsider the appropriateness of the recommended placement, in light of the requirement that each pupil be educated in the least restrictive environment, and promptly recommend an appropriate placement for the balance of the 1990-91 school year. However, the CSE must first clearly identify the nature of the student's handicapping condition(s) and set forth the reasons for reaching that conclusion, based upon current evaluation components as specified in 8 NYCRR 200.4 (f), including a vocational assessment.


IT IS ORDERED that the decision of the hearing officer be, and the same hereby is, annulled; and

IT IS FURTHER ORDERED that within 30 days after the date of this decision respondent's CSE shall prepare a new individualized education program for petitioner's son and shall recommend to respondent an appropriate placement in the least restrictive environment for the student in accordance with the provisions of this decision.

Dated: Albany, New York                                                                 _________________________
           November 8, 1990                                                                       HENRY A. FERNANDEZ