Application of a CHILD WITH A HANDICAPPING CONDITION, by her 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 New York


Koppell and Drachler, Esqs., attorneys for petitioners, Edward S. Robbins, Esq., of counsel

Hon. Victor A. Kovner, Corporation Counsel, attorney for respondent, Mercedes Colwin, of counsel


Petitioners appeal from the determination of an impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) that petitioners' child be educated in a specialized instructional environment IV (SIE-IV) program at respondent's Manhattan School for Career Development for the 1990-91 school year, and which denied petitioners' request that respondent be compelled to contract with a private school for the pupil's education during such school year. The appeal must be sustained in part.

At the outset, I note that petitioners have submitted a reply to the answer. Section 279.6 of the Regulations of the Commissioner of Education provides that no pleading other than the petition and answer will be considered by the State Review Officer, except a response by petitioner to any additional documentary evidence served with the answer. Petitioners' reply objects to my consideration of an exhibit which was admitted into evidence at the hearing. Respondent has not submitted any additional documentary evidence with the answer. Therefore, I will not consider the reply (Application of a Child with a Handicapping Condition, Appeal No. 90-17).

In 1983, petitioners' child was hospitalized because of a fever, which subsequently resulted in encephalitis. The pupil has a convulsive disorder. The treatment for this disorder requires her to take two drugs, phenobarbital and Depakene, three times each day. These drugs have a sedative effect. As a result of her illness in 1983, the pupil has deficits in her short-term memory and auditory processing, as well as a deficit in her attention span. The pupil is classified as learning disabled/other health impaired. Her classification is not in dispute in this appeal.

Since 1985, the pupil has been in a modified instructional services-I (MIS-I) program,which is designed for learning disabled pupils. She attended P.S. 42 until September, 1989, when she was enrolled in I.S. 131. The pupil was referred to the CSE in March, 1990 by a teacher, who requested that the pupil receive counseling to assist her in maintaining satisfactory peer relationships. Projective psychological tests were administered to the pupil in a psychological update. Her social history and educational evaluations were also updated by the CSE. On May 16, 1990, the CSE recommended that the pupil be enrolled in a specialized instructional environment IV (SIE-IV) program at the Manhattan School for Career Development, which is a public school in Manhattan. The CSE recommended that the pupil receive counseling twice each week, once on an individual basis and once in a group of 3 pupils.

Petitioners objected to the CSE's recommendation. A hearing was held on September 27, 1990. In a decision dated October 17, 1990, the impartial hearing officer found that the pupil had been appropriately classified, and that the recommended program at the Manhattan School for Career Development was appropriate for the pupil. The hearing officer refused to consider the appropriateness of the private school favored by petitioners, because of his finding that respondent had offered the pupil an appropriate program.

Petitioners assert that respondent has failed to establish the appropriateness of the recommended program because respondent did not present a class profile of the other pupils in the proposed class at the Manhattan School for Career Development, and because it failed to do a vocational assessment of the pupil before attempting to place her in a vocationally oriented program. Petitioners also assert that the SIE-IV program, which is designed for pupils who are unable to satisfy the requirements of a regular high school diploma and who receive an individualized educational program (IEP) diploma at the completion of the program, is inappropriate for their child. Petitioners ask that I find that the proposed SIE-IV program is inappropriate, and direct respondent to contract with the Lowell School for the education of their child for the 1990-91 school year.

Respondent asserts that the SIE-IV program is appropriate for the pupil, because she has not made satisfactory progress in the academically oriented MIS-I program and has become frustrated as a result of her failure to make satisfactory progress. Respondent contends that the SIE-IV program provides a nurturing environment in which academic skills are integrated with daily living skills, which will prepare the pupil for gainful employment.

Respondent is obligated to provide an appropriate program for petitioners' child. 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 School District v. Rowley, 458 U.S. 176). It is well established that a board of education bears the burden of establishing the appropriateness of its program (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 begins with an IEP which considers the pupil's present levels of development and individual needs (8 NYCRR 200.4 [c][2]). An IEP must set forth specific goals for the pupil which address the various components of the pupil's handicapping condition (Matter of Handicapped Child, 25 Ed. Dept. Rep. 17; Matter of Handicapped Child, 25 id. 112). Where appropriate, a pupil should be assessed with regard to vocational skills (8 NYCRR 200.4 [b][2][vi]). I find that the pupil's IEP in this case is deficient.

The record reveals that, despite an overall IQ score of 80 with relative strength in abstract reasoning, the pupil has significant deficits in short-term memory and auditory processing, as well as an attention deficit. Her teachers report that she is capable of doing the academic work of the MIS-I program, but that her performance has been hindered by inattention and/or drowsiness in class. The pupil's drowsiness is thought to be a side effect of the medications which she must take to prevent and control her seizures. An educational evaluation of the pupil performed in May, 1990 revealed that the pupil performed at the third to fourth grade level in reading and mathematics, as she had during an evaluation conducted in October of 1988. Although respondent has assigned a crisis intervention aide to assist the pupil in the event of a convulsion, the aide has not provided academic assistance and the pupil was apparently made self-conscious by the presence of the aide.

The pupil's IEP for the 1990-91 school year includes as an annual goal the statement that the pupil is to "compensate for deficits in auditory processing". However, there is nothing in the pupil's IEP which reveals how this goal will be achieved, which is a significant omission in view of the pupil's lack of academic progress. Although there is a brief notation on the IEP that the pupil is on medication, the IEP does not address the issue of the pupil falling asleep in class or the effect of the medication upon her academic performance.

This IEP was intended to be the basis for a significant change in the direction of the pupil's educational program from a regular high school diploma program to a career oriented program which usually culminates with the receipt of an IEP diploma. However, the goals of the IEP do not specifically address the pupil's participation in any vocational program. The pupil's reading and mathematic goals are general, and are not related to specific vocational objectives. The pupil's IEP provides that she is to continue to participate in all New York City and State testing, with time limits waived. Such testing includes the Regents Competency Tests which are required for receipt of a regular high school diploma. However, the most substantial defect in the pupil's IEP is the fact that no vocational assessment had been performed, notwithstanding the fact that this IEP was intended to begin the pupil's transition into a career oriented educational program. In the absence of a vocational assessment, there is no basis upon which the CSE's recommendation, as reflected in the IEP, can be sustained (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 52).

At the hearing, both parties agreed that the pupil's lack of progress in the MIS-I program established that the program was inappropriate. The MIS-I program is academically oriented and is taught in a class of not more than 12 pupils. I note that a school psychologist stated in her May, 1990 psychological update of the pupil that most of the pupils in the MIS-I program have visual motor perception deficits and only mild neurological impairment. This pupil has relatively good visual motor perception, but significant neurological impairment. I concur with the psychologist's conclusion that the pupil's needs are not being addressed in the MIS-I program.

The SIE-IV program and the Lowell School's modified program are both more vocationally oriented than the MIS-I program and are taught in classes of not more than 12 pupils by a teacher with the assistance of an aide. There are differences between the SIE-IV and the modified program of the Lowell School, but I am not persuaded that the record affords an adequate basis for concluding that either program is appropriate. I note that the pupil has not made academic progress in a class of no more than 12 pupils. It is also unclear from the record whether the learning characteristics of the pupils in either of the two programs is compatible with that of petitioners' child (8 NYCRR 200.6 [f][2][i]).

In view of the pupil's lack of progress in the MIS-I program despite her intellectual potential for greater achievement, as well as the nature of her handicapping condition and the extent to which the medications she takes may affect her academic performance, I find that petitioners' child requires a smaller class size than that provided by either the SIE-IV program or the modified program of the Lowell School. As noted by the school psychologist in her May, 1990 update, this pupil needs to receive more individualized help from teachers. A class of not more than 6 pupils with one teacher and one aide would allow the pupil to receive more individual attention, as well as a greater opportunity for repetition of instruction to overcome her auditory and attentional deficits.

This pupil has significant management needs because of her physical condition. On at least one occasion within the last year, the pupil simply left school while having a mild convulsion. The record also reveals that the pupil has left her class and wandered around the school building on occasion. Her physical condition should be more closely monitored, and taken into account by the teachers who provide instruction to her. I find that the pupil's management needs can be more adequately addressed in the smaller class which I have described.

The pupil has also been described by respondent's staff as aloof from other pupils, and having difficulty maintaining satisfactory relationships, particularly with male peers. A class of no more than 6 pupils with a teacher and an aide will allow the pupil to function in a more controlled environment where she can feel more secure in developing relationships. Therefore, a smaller class will also address the pupil's social needs which have become more intense as she approaches high school age.

While I agree with the CSE that this pupil requires counseling, I find that family counseling should also be provided. The record reveals that the pupil is under a great deal of stress caused by what appears to be the unrealistic expectations of her parents that the pupil will achieve at a rate similar to that of her siblings. I note that 8 NYCRR 200.4 (f)(8) requires that a school district make provision for family counseling for the parents of pupils placed in classes such as that which I have discussed above.

Finally, I must comment upon the fact that the record does not reveal that the CSE has discussed the pupil's medical needs with her physician, despite the fact that at least three of her teachers have commented that the pupil falls asleep in class. It is incumbent upon the CSE to actively seek the advice and assistance of the pupil's physician to ascertain whether medication dosage amounts or times of administration can be changed to allow the pupil to remain awake in school. The CSE should also consider whether the pupil's schedule can be modified to accommodate her physical condition.


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 perform a vocational assessment of the pupil and shall prepare a new individualized education program for petitioners' daughter, in accordance with the provisions of this decision.

Dated: Albany, New York

              January 8, 1991                                                                                      HENRY A. FERNANDEZ