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No. 91-16

Application of a CHILD WITH A HANDICAPPING CONDITION, by his parent, for review of a determination of a hearing officer relating to the education program provided by the Board of Education of the Iroquois Central School District


Hodgson, Russ, Andrews, Woods and Goodyear, Esqs., attorneys for respondent,

Jerome D. Schad, Esq., of counsel


Petitioner appeals from the determination of an impartial hearing officer finding that the educational placement for petitioner's child which had been recommended by respondent's committee on special education (CSE) for the 1990-91 school year was appropriate to meet the needs of the pupil. The appeal must be dismissed.

The pupil, who is eighteen years old, was initially classified as a learning disabled pupil while he was in sixth grade. The pupil's current individualized education program (IEP) reveals that he was reading at a second grade level in May, 1990, when he was in tenth grade. The pupil's classification as learning disabled is not in dispute.

The pupil attended public and private elementary schools. When he returned to respondent's schools for sixth grade, the pupil was classified as learning disabled and placed in a self-contained special education class. He remained in special education classes in respondent's district for seventh and eighth grades. For the 1988-89 and 1989-90 school years, the pupil was assigned to a special educational program of the Board of Cooperative Education Services for the Second Supervisory District of Erie, Chautauqua and Cattaraugus Counties (BOCES), located in the East Aurora Union Free School District. At that time, respondent did not have an appropriate special education class at the high school level.

The pupil received five and one-half units of high school credit during the 1988-89 school year, while enrolled in a prevocational program. During the 1989-90 school year, the pupil was mainstreamed for all of his courses, except English. He earned four units of high school credit, but did not receive credit for English or physical education. The pupil needs a total of twenty and one-half units of credit, including two units of physical education, in order to obtain a high school diploma.

On May 16, 1990, the CSE conducted an annual review of the pupil. The pupil's parents were given notice of the meeting, but did not attend. Two representatives of the BOCES, the pupil's special education teacher and a consultant teacher, attended the May 16 meeting. The consultant teacher reported that the pupil had not made full use of his strong auditory learning skills to compensate for his disability in reading. The pupil's special education teacher reported that the pupil appeared to be working at a level commensurate with his ability, but that he lacked motivation. Both BOCES representatives recommended that the pupil's mainstreamed instruction be reduced for the 1990-91 school year.

The CSE voted to recommend that the pupil be returned to the Iroquois Central School District to attend a new special education class to be formed for the 1990-91 school year. The new class would consist of not more than 12 pupils who would receive primary instruction from a special education teacher, with the assistance of an aide. The teacher and aide would provide supplemental instruction in the courses for which the pupils are mainstreamed. The pupil's Phase I IEP provides that he would receive primary instruction in tenth and eleventh grade English in the recommended special education class, and would be mainstreamed for social studies, technology, science and physical education. The pupil is also mainstreamed for a half year course in health, which is required for a high school diploma. The IEP further provides for modifications in testing, including extended time to complete tests, having tests read to the pupil at an alternative site and having his answers recorded by the person administering the tests. The CSE also recommended that the pupil receive individual counseling for 30 minutes each week, and that a vocational assessment be performed. Respondent accepted the recommendation of the CSE.

In either late August or early September, 1990, petitioner informally discussed his dissatisfaction with the change in the pupil's placement with the CSE chairperson. However, petitioner did not request that an impartial hearing be held at that time. The pupil has attended classes in the new program at the Iroquois High School since September, 1990. The pupil's parents were invited to attend a meeting of the CSE on December 6, 1990, at which the pupil's academic difficulties during the Fall were discussed. Neither parent attended the meeting, and it is not clear from the record whether the CSE modified the pupil's IEP at that meeting.

The CSE met again on January 11, 1991 and recommended that the pupil receive home tutoring in social studies to compensate for the district's failure to provide him with instruction in that subject for a 10 week period. The record is not clear on the reason why the pupil did not receive such instruction but he was apparently removed from his social studies course upon the recommendation of his special education teacher.

On January 2, 1991, petitioner requested that an impartial hearing be held to review his dissatisfaction with the pupil's program and placement. A hearing was held on January 30, 1991. In a decision dated February 9, 1991, the hearing officer found that the pupil's present program was appropriate and that the placement was consistent with the requirement that each pupil be placed in the least restrictive environment.

Petitioner objects to the procedure employed by respondent in changing the pupil's placement, as well as to the placement in a special education class in respondent's high school. I will first consider petitioner's procedural objections.

Petitioner asserts that he was not given appropriate notice of the CSE's intention to recommend that the pupil's placement be changed. At the hearing, petitioner admitted receiving a notice of the May 16 CSE meeting. Although the record before me does not include a copy of the notice which was sent to petitioner prior to the May 16 meeting of the CSE, the CSE chairperson testified that the notice did not specifically refer to a proposed change in placement.

State regulation provides that, prior to an annual review of a pupil, a CSE must notify the pupil's parents of its intent to review the pupil's program and placement (8 NYCRR 200.4 [4][2]). Although the notice must describe the purpose of the review (8 NYCRR 200.5 [a][1]), State regulation does not require that the parent be informed of an intended change of program or placement, until the CSE makes it recommendation. The CSE must notify the parents of its recommendation to the board of education (8 NYCRR 200.5 [a][4][i][b]). Petitioner does not assert that he did not receive notice of the CSE's recommendation.

Petitioner asserts that respondent failed to provide him with an accurate list of individuals or organizations which might provide free or low cost legal services. Federal and State regulations require each school district to inform the parents of children with handicapping conditions of the availability in the area of free or low cost legal and other relevant services, upon request or at the initiation of a hearing (34 CFR 300.506 [c]; 8 NYCRR 200.5 [a][2][iv]).

The record reveals that the CSE included in its notice of the May 16 meeting and the notice of its recommendation a list of the names and telephone numbers of 47 public and private agencies as possible sources of assistance. Petitioner asserts that most of the agencies on the list do not provide legal services, and that two of those that offer such services were of no assistance to him. A board of education must make a good faith effort to verify the availability of services through the organizations which the board lists in its notices to parents (Application of a Child with a Handicapping Condition, Appeal No. 91-1). I am unable to ascertain from the record how many of the organizations listed by respondent do provide free or low cost legal services. However, I caution respondent to carefully review and update its list of possible providers of free or low cost legal and other relevant services.

Petitioner also asserts that he was not informed of his right to have the pupil remain in his then current placement during the pendency of proceedings to review the appropriateness of the change of placement recommended by the CSE. Federal and State regulations require that a pupil remain in his or her present educational placement during the pendency of any administrative or judicial proceeding to review a parental complaint about the pupil's identification, program or placement, unless the pupil's parents and the board of education agree otherwise (34 CFR 300.513; 8 NYCRR 200.5 [a][4][ii][c]). State regulation requires that a parent be notified of that right at the time when the CSE must send the parent notice of its recommendation to the board of education.

The record before me includes copies of two versions of a description of parental rights, which the CSE chairperson testified were sent to parents with each notice of CSE meetings and recommendations. Both versions mention the maintenance of the then current placement requirement. Petitioner does not deny that he received this written material. Therefore, I find that respondent met its obligation to provide petitioner with notice of his rights.

Petitioner asserts that he expressed his dissatisfaction with the change in the pupil's placement to the CSE chairperson in either August or September. However, he did not request a hearing until January 2, 1991, at which time the special class at respondent's high school was the pupil's then current placement. Consequently, respondent was not obliged to return the pupil to the class which he attended in East Aurora during the 1989-90 school year during the pendency of the hearing and this appeal.

Petitioner's primary objection is to the location of the pupil's program in the Iroquois school system. He asserts that the pupil's placement was changed for financial reasons, and is not in the best interests of the pupil. There is nothing in the record to support petitioner's assertion as to financial considerations by the CSE. The CSE chairperson did testify that respondent decided to create its own special education class at the high school, and that the CSE ultimately recommended that each of respondent's pupils who were candidates for a regular high school diploma and who were attending BOCES classes in East Aurora be returned to the new class in respondent's high school. Petitioner in his petition claims that the CSE chairperson gave false testimony, in that some of respondent's students who are diploma candidates were in fact allowed to remain in the BOCES program. This factual issue need not be resolved since it is not relevant to whether respondent acted appropriately in placing this pupil in the new class.

Each board of education is required to place each pupil with a handicapping condition in the least restrictive environment (34 CFR 300.550; 8 NYCRR 200.6 [a][1]). Federal regulation requires that unless the pupil's IEP requires some other arrangement, the pupil should be educated in the school which he or she would attend if not handicapped (34 CFR 300.552 [c]), and that consideration be given to any potential harmful effect upon the pupil or the quality of services which the pupil requires (34 CFR 300.552 [d]).

I have carefully considered petitioner's objection to the class at Iroquois, which is based largely upon the pupil's prior lack of success in respondent's schools and his relatively good progress while in the BOCES program. Petitioner also referred at the hearing to an alleged assault upon his son by a fellow pupil while in eighth grade, and a confrontation with another pupil at the beginning of this school year. There is, however, no basis upon which I could conclude that the pupil is in danger by continuing to attend classes in respondent's schools. The record reveals that the other pupil in the earlier incident was disciplined by the school district, and that both of the pupils involved in the September, 1990 incident were counseled by a teacher about the matter.

I must also note that the record reveals that petitioner's child admitted at the hearing that he had not attempted to perform at his potential in respondent's school this year, by being absent excessively and failing to turn in assignments, in the hope that the CSE would reconsider its recommendation and would recommend that he return to the BOCES program. Although the cooperation and involvement of a pupil and his parents is highly desirable in achieving benefit from any educational program, parental preference is not dispositive in determining the appropriateness of a program or placement recommended by a CSE (Application of a Handicapped Child, 25 Ed. Dept. Rep. 63; Application of a Child with a Handicapping Condition, 23 id. 335; Matter of a Handicapped Child, 20 id. 321).

I have also considered petitioner's assertion that the pupil's program is inappropriate because he does not receive instruction in reading from a reading specialist. The record does not reveal whether the pupil has passed either the Regents Preliminary Competency Test in Reading or the Regents Competency Test in Reading, or whether he has received the required remedial instruction if he did not pass either of those tests (8 NYCRR 100.4 [b][5]; 8 NYCRR 100.5 [a][4][v]). However, a goal in his Phase II IEP suggests that he has not as yet passed the Regents Competency Test in Reading. Although remedial instruction in reading might be helpful, I note that the pupil is receiving primary instruction in English from a certified special education teacher who is qualified to assist him with his disability in reading. The pupil's Phase II IEP includes several goals which would assist him in reading. His Phase I IEP includes an annual goal of acquiring coping skills to succeed in his academic courses, despite his reading disability.

From the record before me, I find that the CSE has recommended an appropriate program for the pupil in the least restrictive environment. The pupil has demonstrated that he can make suitable progress towards a high school diploma in the kind of mainstreamed program recommended by the CSE, if he applies himself. The record also supports the conclusion that the pupil has had a difficult time accepting his disability, and has not taken advantage of the opportunity to receive the counseling which respondent has offered. The CSE should consider whether additional counseling by a psychologist, rather than the school social worker, would be appropriate. The record does not reveal whether the vocational assessment recommended by the CSE has been performed. If not, an assessment should be performed immediately, so that the CSE can plan a suitable program of vocational education at its next annual review of the pupil.


Dated: Albany, New York __________________________