Application of a CHILD SUSPECTED OF HAVING 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 Rochester


Advocacy for the Developmentally Disabled, Inc., attorney for petitioners, Roger G. Nellist, Esq., of counsel

Adam D. Kaufman, Esq., attorney for respondent, Edward J. Orlando, Esq., 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 petitioner's son be classified as a learning disabled pupil and that he be enrolled in a self-contained special education class, with the related service of speech and language therapy, for the 1990-91 school year. The appeal must be sustained in part.

The pupil, who is now ten years old, began school in first grade in October,1986, while he resided in Los Angeles, California. He repeated first grade during the 1987-

88 school year. While in the second grade during the 1988-89 school year, the pupil was identified as learning disabled and began to receive speech and language therapy, as well as resource room services. The pupil's individualized education program (IEP) for the 1989-90 school year reveals that the pupil was to continue to receive speech and language therapy and resource room services while in the third grade.

The pupil was enrolled in second grade at respondent's Hendrick Hudson School in September, 1989, but did not begin to attend class until October 18, 1989. On January 25, 1990, the pupil was referred by his second grade teacher to the CSE, because the teacher was concerned about the pupil's inability to read and his frustration at being unable to perform as well as his peers. A meeting of the CSE scheduled for March 20, 1990, was adjourned because the pupil's evaluation materials were either missing or incomplete. On April 12, 1990, the CSE met, but deferred making a decision, and directed respondent's staff to perform an assessment of the pupil using adaptive behavior measures.

On May 8, 1990, the CSE recommended that the pupil be classified as learning disabled, and that he be placed in a self-contained class of no more than six pupils with a teacher and an aide. The CSE also recommended that the pupil receive speech and language therapy for 30 minutes each school day.

Petitioners requested that a hearing be held to review the CSE's recommendation. A hearing scheduled for June 21, 1990 was adjourned at petitioners' request until September, 1990, in order to ascertain the results of private tutoring of the pupil during July and August. On September 28, 1990, a hearing was held, at which the pupil's tutor testified. In a decision dated October 21, 1990, the hearing officer found that the pupil should be classified as learning disabled, and that he should be placed in the class recommended by the CSE.

Before considering the assertions of the parties, I must note that respondent filed an affidavit by the pupil's teacher for the 1990-91 school year, in support of its answer. The affidavit was intended to disclose the pupil's academic performance in a regular third grade class during the pendency of this appeal. I have returned the affidavit to the respondent and shall not consider its contents because it raises factual issues which were obviously not before the hearing officer and which petitioners would not have an adequate opportunity to rebut.

Petitioners raise several procedural issues which I will address before determining whether the pupil was appropriately classified and whether the recommended placement is appropriate for the pupil. Petitioners assert that respondent failed to promptly ascertain the special needs of their son when he was enrolled in respondent's schools, despite the fact that the pupil's records from Los Angeles revealed his needs and the special educational services he had previously received. Respondent asserts that petitioners failed to advise respondent that the pupil had been classified as having a handicapping condition and had received special educational services while in California. However, neither party has revealed nor does the record adequately demonstrate when respondent received the pupil's records from California.

While it is not possible to ascertain from the documentary evidence and testimony in the record when respondent first received the pupil's educational records, I must note respondent's apparent failure to conduct a diagnostic screening of the pupil, in accordance with the provisions of 8 NYCRR 117.3. In view of the significant disparity between the pupil's level of achievement and that of his chronological peers, prompt diagnostic screening would have revealed sufficient information for referring the pupil to the CSE. Respondent must, in the future, promptly screen pupils who have newly enrolled in its schools.

Petitioners also assert that respondent did not complete the referral process in a timely fashion, thereby delaying the delivery of appropriate services to the pupil. State regulation requires that a CSE shall provide a recommendation to a board of education within the lesser of 30 school days after receipt of the consent of the parents to evaluate a pupil or 40 school days after receipt of a referral of a pupil suspected of having a handicapping condition (8 NYCRR 200.5[c]). At issue in this appeal is the adjournment of the March 20, 1990 meeting of the CSE until April 12, 1990 and the deferral of action by the CSE on the latter date until May 8, 1990. Respondent asserts that neither Federal or State law prohibits a CSE from deferring action until further information can be obtained. Respondent's position is untenable. Respondent is not free to disregard the time limit imposed by the Regulations of the Commissioner of Education to obtain adequate information about a pupil and to arrive at a recommendation by the CSE as to the identification and placement of a pupil suspected of having a handicapping condition. I caution respondent to comply with the time limit imposed by 8 NYCRR 200.4 (c).

Petitioners challenge the action taken by the CSE on May 8, 1990, on the ground that the CSE did not provide for meaningful participation by the petitioners in the development of the pupil's Phase I IEP. Both Federal and State regulations provide that the parents of pupils with handicapping conditions must be afforded an opportunity to attend the meetings in which IEPs for their children are developed (34 CFR 300.345; 8 NYCRR 200.4[c][3]).

In this instance, petitioners were invited to attend the CSE meeting held on May 8, 1990. The CSE chairperson testified at the hearing that petitioners were unable to arrive at the designated time, but appeared later. The pupil's teacher, the school psychologist who evaluated the pupil and the person who performed the pupil's speech and language evaluation met with the CSE and had left the meeting by the time the petitioners arrived. The CSE chairperson further testified that although the CSE had reached a consensus as to the pupil's clarification and placement, it did listen carefully to petitioners expression of concern about their son and their preference for the same level of services as had been provided in California, before making its formal recommendation to respondent.

As I noted in the Application of a Child with a Handicapping Condition, Appeal No. 90-13, a CSE must afford the parents a meaningful opportunity to interact with the members of the committee in developing the provisions for the IEP. In this instance, petitioners did have the opportunity to interact with the members of the CSE, although they did not have the opportunity to meet with the evaluators of the pupil because of their late arrival at the CSE meeting. Upon the record before me, I am unable to conclude that petitioners were denied the opportunity to make their views known to the CSE or otherwise participate in the May 8, 1990 meeting of the CSE (Application of a Child with a Handicapping Condition, supra; Application of a Child with a Handicapping Condition, Appeal No. 90-18).

Petitioners assert that respondent failed to maintain a verbatim record of the hearing which was held on September 28, 1990. They admit that they received a tape recording of the hearing from respondent, upon request, but assert that some of the testimony was inaudible on the recording. The record before me includes a written transcript, but not the tape recording. The transcript appears to be complete. Federal and State regulations require each board of education to maintain a written or electronic verbatim record of each hearing (34 CFR 300.508[4]; 8 NYCRR 200.5[c][2]). In the absence of proof that the tape recording furnished to the petitioner was an incomplete record of the hearing, I find that petitioners have not established their assertion.

In this appeal, petitioners have not challenged those portions of the hearing officer's decision which found that the pupil should be classified as learning disabled and should receive daily speech and language therapy as recommended by the CSE. They object to the pupil's proposed placement in a self-contained special education class, and would prefer that the pupil be provided with resource room services.

Respondent is required to provide an appropriate educational program, including instruction specifically designed to meet the needs of the pupil and such support services as are necessary to permit the pupil to benefit from instruction (Board of Education 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]; 8 NYCRR 200.6 [a][17]). A pupil with a handicapping condition may be removed from the regular educational environment only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids or services cannot be achieved satisfactorily (34 300.550 [b][2]). Respondent bears the burden of establishing the appropriateness of its recommended program (Matter of a Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, 29 id. 83; Application of a Child with a Handicapping Condition, Appeal No. 90-5). Upon the record before me, I find that respondent has not met its burden of proof.

This pupil, who has already repeated first and second grades, was nevertheless performing academically at a rate substantially below that of other second grade pupils. A psychological evaluation of the pupil performed in April, 1990 revealed that he achieved grade equivalent scores of 1.5 in reading and 1.9 in mathematics. While the pupil is reported to be of low average mental ability, I note that there is a disparity between scores he attained on tests of his cognitive functioning on which verbal skills were involved and those on which only non-verbal skills and abilities were involved. A speech and language evaluation of the pupil also confirms that the pupil has significant deficits in his receptive and expressive language skills, which affect both the ways in which he acquires information and demonstrates that he has acquired and retained information. The testimony of the pupil's second grade teacher also illuminated the pupil's difficulty in succeeding in a regular classroom environment. The teacher testified that the pupil was largely non-verbal and, for most of the year, was unable to follow simple directions. The pupil's tutor during the months of July and August, 1990 testified that the pupil was capable of making academic progress with individual attention, but he also opined that the pupil would not be able to succeed academically in a regular third grade class, even with the assistance of an individual tutor.

Although I understand petitioners' concern about the removal of the pupil from the regular educational environment, I am constrained to find that the pupil requires more assistance than could be provided with resource room services. Whatever usefulness such services may have had in the pupil's first years of schooling, it is now apparent that he will continue to slip further behind his peers unless a more intensive level of special educational services is provided. It is essential that the pupil receive more individual attention than could be provided in a regular education class and that his instruction be more carefully tailored to take into account his significant language deficits.

While I find that the pupil requires the primary instruction of a special education class, respondent proposes to place the pupil in what is known as an "Option III" class. Pursuant to State regulation, an Option III class is one in which the size of the class shall not exceed six pupils, with one adult in addition to the teacher, because of the highly intensive management needs of the pupils who require a high degree of individualized attention and intervention (8 NYCRR 200.6 [f][4][ii]). However, there is no basis in the record before me for respondent's assertion that the pupil has intensive management needs. I note that a classroom observation of the pupil performed in accordance with 8 NYCRR 200.4 (b)(2)(iv) revealed that the pupil exhibited appropriate behavior and generally remained on task during the teacher's presentation of a lesson. The observer found that the pupil was distractible, but did refocus his attention either by himself or with teacher direction. A small class, such as that afforded by an Option I class, (a maximum of 12 pupils without an aide) should be adequate to address the pupil's management and academic needs.

In addition to the inappropriate size of the recommended class, I am not persuaded that this pupil would be appropriately grouped with the other pupils in such class. State regulation requires that the composition of a special education class shall be based upon the individual needs of the pupils, with regard to academic achievement and learning characteristics, social development, physical development and management needs (8 NYCRR 200.6 [f][2]). The record includes a brief profile of the pupils in the class which the CSE had recommended for the pupil. In view of this pupil's significant language deficits, it is essential that he be placed with other pupils with comparable learning characteristics. However, neither the class profile nor the testimony of the CSE's chairperson revealed the language abilities of the pupils in the proposed class.

I have concluded that the CSE should reconsider the placement of this pupil, for the reasons outlined above. In addition to an Option I class, the CSE should also consider the appropriateness of limited mainstreaming of this pupil with his chronological peers in areas such as lunch, recess, physical education, art and music. The CSE should also consider whether the pupil should receive counseling at least once a week to address his need to develop and maintain peer relationships and to deal with his low self-esteem resulting from academic frustration. The pupil's counselor should work with the pupil's teachers of mainstream subjects, if any, to alert them to the specific needs and abilities of the pupil.



IT IS ORDERED that the decision of the hearing officer, to the extent that it authorized the placement of the pupil in an Option III class be, and the same hereby is, annulled; and

IT IS FURTHER ORDERED that the CSE and Board of Education shall promptly comply with all time limits reflected in the Commissioner's Regulations and within 30 calendar days after the date of this decision respondent's CSE shall prepare a new individualized education program for petitioners' son and recommend to respondent an appropriate educational program for the student in accordance with the provisions of this decision.

Dated: Albany, New York

             February 12, 1991                                                                                                    HENRY A. FERNANDEZ