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91-13

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 Lockport

Appearances:

Legal Assistance Program, State University of New York at Buffalo, attorney for petitioners, Melinda R. Saran, Esq., of counsel

Sargent, Repka and Pino, Esqs., attorneys for respondent, Nicholas J. Sargent, Esq., of counsel

DECISION

Petitioners appeal from the decision of an impartial hearing officer finding that respondent's committee on special education (CSE) had recommended an appropriate special education program for their child for the 1990-91 school year, and denying petitioners' request for an order directing respondent to provide the services of a consultant teacher and an aide, as well as certain related services, at the private school in which petitioners have unilaterally placed the pupil. The appeal must be sustained in part.

Petitioners' seven year old child has Down Syndrome. In a psychological evaluation performed in July, 1990, the pupil received an IQ score of 43, with a mental age of three years and four months. The pupil's adaptive behavior was consistent with his IQ. The pupil's classification as a mentally retarded pupil is not in dispute.

The pupil was enrolled on a twelve month basis in a special educational class of the Board of Cooperative Educational Services for Orleans and Niagara Counties (BOCES) during the 1988-89 school year. On April 21, 1989, respondent's CSE recommended that the pupil remain in the BOCES program, again on a twelve month basis, for the 1989-90 school year. Instead, petitioners enrolled their child in St. Mary's Catholic School in Lockport (St. Mary's), where the pupil remained in a regular kindergarten for the 1989-90 school year, and is currently enrolled. A speech therapist employed by respondent provided speech therapy to the pupil. During the 1989-90 school year, the pupil's teacher at St. Mary's received technical assistance in modifying the regular kindergarten curriculum to meet the needs of the pupil from a program affiliated with the State University of New York at Buffalo, which also arranged for a University student to assist the teacher in keeping the pupil on task during the second semester.

In June, 1990, petitioners requested a hearing to challenge respondent's alleged failure to implement the pupil's individualized education program (IEP) for the 1989-90 school year. Petitioners and their attorney met with respondent's staff on June 28, 1990, in an attempt to resolve petitioners' complaint with respect to the services provided during the 1989-90 school year. A hearing was subsequently held with respect to the 1989-90 school year, and the decision of the hearing officer was the subject of my decision in Appeal 91-12.

During the summer of 1990, the pupil was enrolled by petitioners in a preschool program of respondent, where he received some special education, as well as speech/language therapy. However, the CSE did not prepare an IEP for the pupil's summer school program.

As a result of the June 28, 1990 meeting, petitioners' legal representative sent a letter dated July 2, 1990 to the CSE chairperson, in which petitioners requested that respondent provide the pupil with speech/language therapy, occupational therapy, physical therapy and adaptive physical education, during the 1990-91 school year while the pupil attended St. Mary's. Petitioners also requested that the respondent assign an aide to assist the pupil's teacher at St. Mary's for approximately two hours each day, with regard to the pupil's development of daily living skills, increasing his ability to remain on task and with his academic activities. The services of a consultant teacher to assist the pupil's regular kindergarten teacher at St. Mary's were also requested by petitioners. The letter from petitioners' representative also suggested that the CSE consider re-evaluating the pupil to ascertain his present needs for physical therapy and occupational therapy.

An occupational therapy evaluation of the pupil, which was completed on July 13, 1990, concluded with the recommendation that the pupil receive such therapy twice each week during the 1990-91 school year. A physical therapy evaluation, dated July 26, 1990, concluded that the pupil did not require such therapy. An undated speech and language report by respondent's therapist who worked with the pupil during the 1989-90 school year recommended that he continue to receive speech/language therapy in the 1990-91 school year. Respondent's school psychologist, who examined the pupil in July, 1990, concluded that an appropriate placement for the pupil would be a special education class of not more than twelve pupils, taught by a special education teacher with the assistance of an aide.

On August 2, 1990, petitioners, their attorney, and the principal of St. Mary's met with the CSE. After discussing some placement options with petitioners and their representatives, the CSE convened in executive session. The CSE then reconvened its meeting with petitioners, their attorney and the St. Mary's principal, at which time the CSE prepared an IEP for the 1990-91 school year. Although petitioners had requested that respondent provide educational and related services to the pupil at St. Mary's, the CSE recommended that the pupil be enrolled in a special education class of not more than twelve pupils, to be located at respondent's Roy B. Kelly Elementary School. The IEP provides for a ten month program. The record does not reveal the reason why a twelve month program was not recommended. The CSE further recommended that the pupil be mainstreamed for language arts and music, and that he receive speech/language therapy five times each week and occupational therapy twice each week. The CSE did not address petitioners' request for services at St. Mary's.

The pupil has remained in a regular education, full-day kindergarten class of St. Mary's for the 1990-91 school year. The record reveals that the pupil is the only pupil with a handicapping condition in a class of thirteen pupils. The pupil's teacher is assisted by an aide for a portion of the school day.

Petitioners requested an impartial hearing to review the recommendation of the CSE. A hearing was held on October 1, 2 and 11, 1990. In a decision dated January 31, 1991, the hearing officer found that the recommended placement at the Roy B. Kelly Elementary School was appropriate for the pupil, but the CSE had not discharged its obligation to determine what related services would meet the pupil's needs while he attended St. Mary's during the 1990-91 school year. The hearing officer did not order respondent to provide any related service, but directed the CSE to evaluate the pupil's needs at St. Mary's, and to revise the pupil's IEP to provide appropriate services. Although petitioners had challenged the adequacy of the notice of the August 2, 1990 annual review meeting of the CSE which they had received, the hearing officer was unable to reach a conclusion as to the validity of petitioners' complaint. However, the hearing officer did find that the CSE had failed to conduct its annual review within at least one year since its last review, in violation of 8 NYCRR 200.1 (c) and 200.4 (f).

On February 27, 1991, the pupil's mother and her attorney met with the CSE, to discuss the services to be provided to the pupil in accordance with the decision of the hearing officer. Although the CSE reached a decision as to what services it would recommend that respondent provide, neither party has revealed to me what the CSE recommended. Petitioners assert that they have sought another hearing to review the CSE's latest recommendation. In the absence of any assertion by the parties that the CSE's recommendation of February 27 has rendered moot any of the issues presented in this appeal, I will consider those issues.

Before reaching petitioners' assertions concerning the hearing officer's decision, there are two other issues to be addressed. Petitioners asserted at the hearing that they were not notified that an annual review of the pupil would be conducted at the August 2, 1990 meeting of the CSE. State regulations require that a CSE must notify a pupil's parents of its intent to perform an annual review, by providing notice of the time, date, place and purpose of the CSE meeting, as well as certain other information (8 NYCRR 200.4 [f][2] and 200.5 [a][1]). The CSE chairperson testified that she had mailed a letter to petitioners, advising petitioners of the August 2 meeting, including its purpose. The record before me does not include a copy of the letter from the CSE chairperson. However, I find no basis in the record to reject the testimony by the CSE chairperson that the requisite notice was given.

Petitioners assert that, after discussing the pupil's evaluation materials with them, the CSE convened in executive session to reach a decision about its recommendation to respondent. Petitioners and their representatives remained outside the room where the CSE met in private, and they were then informed of the CSE's recommendation. They assert that they did not participate in the development of the pupil's individualized education program (IEP).

A CSE may discuss the classification or placement of a pupil in the absence of the pupil's parents (Matter of a Handicapped Child, 21 Ed. Dept. Rep. 100, judg. granted dism'g pet. to review, Malone v. Albany City School District and Ambach, Supreme Court, Albany County, Cholakis, J., February 5, 1982, n.o.r.; Application of a Child with a Handicapping Condition, 27 id. 29). However, the former Education of the Handicapped Act, now the Individuals with Disabilities Education Act, (20 U.S.C. 1401 et seq.) emphasizes the participation of parents in the development of an IEP (School Comm. Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359). Both Federal and State regulations accord parents not only the right to attend, but to participate in, the meetings at which IEPs are prepared (34 CFR 300.345, 8 NYCRR 200.4 [c][3]). Although a CSE is not obligated to accede to the wishes of the parents in drafting IEPs, it must nevertheless afford parents a meaningful opportunity to interact with the members of the CSE. In this instance, the CSE did not provide that opportunity, by merely listening to the parents and then preparing the IEP in the parents' absence. In the future, respondent's CSE must afford each parent a meaningful opportunity to participate in the preparation of an IEP.

Petitioners appeal from that portion of the hearing officer's decision which found that the special education class at respondent's Roy B. Kelly School which the CSE had recommended for the pupil would be appropriate for the pupil, if he attended a public school. They also appeal from the hearing officer's determination that she lacked the authority to direct respondent to provide specific services to the pupil at St. Mary's, and from the hearing officer's decision to remand the matter to the CSE. In essence, petitioners assert that there is sufficient information in the record to ascertain the pupil's needs and an appropriate means of addressing those needs. I cannot agree with this assertion.

I find, as did the hearing officer, that respondent and its CSE have proceeded under the mistaken belief that respondent's only obligation to a pupil whose parents have unilaterally placed the pupil in a private school is to offer an appropriate public school placement. Federal and State law require that boards of education make special education and related services available to pupils who are placed by their parents in private schools (20 U.S.C. 1413 [a][4][A]; Education Law Section 3602-c). A board of education does not satisfy it obligation by merely offering an appropriate public placement, as an alternative to the pupil's private school placement (Application of the Bd. of Ed. City School District of the City of New York, 24 Ed. Dept. Rep. 155; Application of the Bd. of Ed. Middle Country Central School District, 27 id. 114). In accordance with the provisions of 34 CFR 300.403 and 300.452, a board of education is not required to pay for a pupil's education at a private school, but must make available special education and related services designed to meet the needs of private school pupils with handicapping conditions. A board of education may provide appropriate services either in public schools, in private schools or at neutral sites (Bd. of Ed. Monroe-Woodbury Central School District v. Weider et al, 72 NY 2d 174). In the Weider decision, the Court of Appeals noted that the public schools have broad responsibility for tailoring programs to a pupil's individual needs in the least restrictive environment.

At the hearing, respondent attempted to demonstrate the appropriateness of the special education class which the CSE had recommended, despite petitioners' objection that the appropriateness of that class was irrelevant. Although petitioners have the right to reject whatever public placement the CSE may recommend, the CSE is nevertheless obligated to recommend an appropriate public education to be offered to petitioners (34 CFR 300.403 [a]). Respondent bears the burden of establishing the appropriateness of the program recommended by the CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487, Matter of Handicapped Child, 23 id. 415; Matter of Handicapped Child, 25 id. 353). 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. Pupils must be compatibly grouped in accordance with their levels of academic achievement and learning characteristics, levels of social and physical development and their management needs. The record before me inadequately demonstrates the appropriateness of grouping this pupil with the others in the recommended class. The limited information in the record reveals that the recommended class was to consist of nine other pupils, who were classified as speech impaired, had average intelligence and had age appropriate social skills. The teacher of the recommended class, who was also a member of the CSE, testified that the other pupils in the class are distractible and tend to have difficulty learning in large groups. No additional information about the recommended class was provided by respondent. Therefore, I find that respondent has failed to meet its burden of proof on this issue.

The IEP which the CSE prepared is inappropriate, because it does not reflect the fact that the pupil is attending St. Mary's, and makes no provision for any special educational services and related services for the pupil. The hearing officer remanded the matter to the CSE for the purpose of preparing a new IEP. I find that the hearing officer was correct in directing the CSE to prepare a new IEP.

The central issue in this appeal is what services should the CSE recommend be provided in the new IEP. The hearing officer declined to order that specific services be provided or to specify the location at which the services should be provided. Petitioners request that I order respondent to provide at St. Mary's each of the services which they requested in the July 2, 1990 letter from their legal representative to the CSE. Upon a review of the entire record, I am not persuaded that it would be appropriate to do so.

With respect to speech/language therapy and occupational therapy, there is no dispute as to the pupil's need for such services. The location at which the services are to be provided is a matter to be determined in the first instance by respondent, taking into account the needs of the pupil (Bd. of Ed. Monroe-Woodbury Central School District v. Weider et al., supra). Speech/language therapy is currently being provided to the pupil at St. Mary's. The record includes the testimony of an occupational therapist called as an expert witness by petitioners. The occupational therapist testified that occupational therapy for young pupils is generally more appropriately provided in the pupils' regular classrooms, but conceded that it may also be appropriately provided elsewhere, including in another building. The principal of the pupil's school and his kindergarten teacher each testified that the pupil experiences difficulty in changing activities, but the teacher admitted that the pupil will readily leave the classroom for activities conducted on a routine basis, such as lunch. The principal also expressed concern about the loss of instructional time while the pupil is in transit between St. Mary's and the nearest public school, if services were provided at the public school. However, the principal testified that pupils can be transported from St. Mary's to respondent's Roy B. Kelly School in approximately five to eight minutes. I find that speculation as to the pupil's ability to adjust to removal from his classroom to receive related services elsewhere does not afford an adequate basis to conclude that such services must be provided at the pupil's school.

Petitioners have also requested the services of a classroom aide to assist the kindergarten teacher in keeping the pupil on task and to work with him on a curriculum adapted to his needs. I note that while the psychological evaluation of the pupil performed in July, 1990 reports that he has a relatively short attention span and required frequent attention shifts to remain on task, his present kindergarten teacher testified that the pupil has an attention span of approximately ten minutes which is comparable to that of other pupils in his class. I also note that there is presently an aide in the class for a portion of the school day. However, there is an additional reason why I find that an aide for this pupil would not be appropriate, which will be discussed in connection with petitioners' request for the services of a consultant teacher.

Consultant teacher services consist of services provided by a certified special education teacher either directly to a pupil with a handicapping condition who is enrolled in a regular education program on a full-time basis, or indirectly by assisting the pupil's teacher to assist the teacher in adjusting the learning environment (8 NYCRR 200.1 [oo]). In this instance, petitioners are requesting indirect consultant teacher services, i.e. that a special education teacher employed by respondent assist the pupil's kindergarten teacher at St. Mary's in making curricular modifications.

Implicit in petitioners' request is the belief that the pupil's special education needs can be appropriately met with the assistance of a consultant teacher and an aide. I have considered the pupil's needs as revealed in the statement of annual goals for the pupil set forth in the IEP prepared by the CSE. Some of the goals would be appropriately pursued in a regular education setting, as sought by petitioners and at least partially agreed to by the CSE. However, there are other goals for which a regular education setting is not appropriate. This pupil, who is now seven years old, has among his annual goals the need to increase pre-writing, pre-reading and basic math skills. However, the purpose of instruction in writing, reading and mathematics for this pupil should be to develop functional skills in these subjects, rather than to establish a developmental basis for readiness in these subjects, as would be expected of other kindergarten pupils. His needs for functional education would be appropriately addressed in a special education class with a small number of pupils with similar needs. Despite petitioners' preference for "integration", i.e. placement of a pupil with a handicapping condition with non-handicapped peers, with the expectation that the pupil will achieve his IEP goals in that setting, I find that all of the pupil's needs will not be met in such a program. While petitioners have the right to retain their child in the regular education program of a nonpublic school, it does not follow that respondent is obligated to provide supportive services without regard to the appropriateness of such services to meet the special education needs of the pupil. I will direct the CSE to re-examine the pupil's annual goals to focus upon those goals which should be pursued in a special class on a part-time basis and to select an appropriate program in which such goals may be pursued. The special education which the pupil would receive in a special education class would complement the regular education which he will continue to receive in his kindergarten class at St. Mary's.

In planning for an appropriate special education program, the CSE should arrange for the provision of special education and related services with a minimal amount of disruption of the pupil's regular education, such as providing special education and related services either at the beginning or end of the school day. The CSE must also insure that a representative of the pupil's private school attends or otherwise participates in the preparation and review of the pupil's IEP (34 CFR 300.348 [b]).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer be, and the same hereby is, modified, to the extent that within 30 days after the date of this decision, the CSE shall prepare a new IEP for the pupil in accordance with the tenor of this decision.

 

Dated: Albany, New York __________________________
April 18, 1991 HENRY A. FERNANDEZ