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No. 91-21


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 offered by the Board of Education of the North Bellmore Union Free School District



Seth P. Stein, Esq., attorney for petitioners

William H. Englander, P.C., attorney for respondent, Peter G. Albert, Esq., of counsel


        Petitioners appeal from the decision of an impartial hearing officer upholding the recommendation of respondent's committee on special education (CSE) that petitioners' child be placed in a special education class in respondent's Jacob Gunther Elementary School, with speech therapy provided in a small group of students, rather than individually as sought by petitioners. The appeal must be dismissed.

        Petitioners' six year old child has been classified as speech impaired. He has both speech and language difficulties, including deficits in articulation, auditory memory, receptive and expressive syntax and expressive vocabulary. The pupil's classification is not in dispute.

        Petitioners placed their child in the preschool program of the School for Language and Communications Development (SLCD), a New York State Education Department approved private school, in September, 1988. The child has continued to attend the school on a 12 month basis. In March, 1990, the SLCD referred the child to respondent's CSE, to recommend an appropriate placement for him as a school-age child as of September, 1990. The SLCD provided the CSE with a report by its Child Study Team, which included test results and a description of the child's performance in class, as well as in various therapies provided by the SLCD. Psychological testing of the child at the SLCD in February, 1990 revealed a verbal IQ of 65 and a performance IQ of 80. The SLCD also reported that the pupil exhibited a severe language disorder affecting all areas of language. The Child Study Team recommended that the child receive instruction in a class of no more than six children with a teacher and an aide, and opined that the child continued to demonstrate severe language handicaps which required a program consisting primarily of habilitation and treatment.

        The CSE chairperson, a speech therapist and a school psychologist employed by respondent observed the child at the SLCD during the Spring of 1990, but the CSE did not conduct any evaluation of the child. On May 31, 1990, the respondent's committee on preschool education met with petitioners to discuss the child's placement for July and August, 1990. Later that day, the parents met with the CSE to discuss a placement for the remainder of the 1990-91 school year. Petitioners advised the CSE that the child had a management problem which was unrelated to his handicapping condition. Although the CSE chairperson advised them to consider a BOCES program, the CSE made no recommendation.

        In early June, 1990, the child was screened at respondent's annual screening for children who would attend kindergarten in September. The child's mother was interviewed by respondent's school psychologist on June 12, 1990. The psychologist also tested the child on June 15, 1990. However, the record does not include any report of such testing.

        On June 19, 1990, the CSE met again with petitioners. The CSE prepared a Phase I individualized education program (IEP) for the child, in which the CSE recommended that he be enrolled in a special education class at the Ames School of the Nassau County Board of Cooperative Educational Services (BOCES). The CSE recommended that the child be enrolled in a class not to exceed 12 pupils, with a teacher and an aide, and that he receive group speech therapy twice each week and individual speech therapy with auditory training three times each week, as well as counseling and adaptive physical education. The CSE chairperson testified at the hearing that the CSE's placement recommendation was based primarily upon the child's unrelated management problem.

        On July 10, 1990, petitioners requested that an impartial hearing be held to review the CSE's recommendation. The child's mother met with the CSE chairperson on July 18, 1990, at which time she advised the chairperson that the child's management problem had been largely resolved. The chairperson advised the mother to look at the recommended BOCES program, and asked to observe the child again at the SLCD. On July 20, 1990, the child was observed at the SLCD by the CSE chairperson and respondent's school psychologist. A non-verbal IQ test which was administered by the SLCD's psychologist in July, 1990 revealed that the child had an IQ of 102, which is significantly above the IQ scores reported for the child in March, 1990. A speech pathologist employed by respondent evaluated the child on August 23, 1990. The speech pathologist recommended to the CSE that the child should receive speech therapy in a group setting, rather than individually.

        The CSE met with petitioners on August 30, 1990. The CSE prepared a new Phase I IEP, in which it recommended that the pupil be placed in a non-categorical 12:1:1 special education class at respondent's Gunther Elementary School. The CSE also recommended that the child receive speech therapy in a group of no more than 5 children for 30 minutes twice each week and in a group of no more than 3 children for 30 minutes three times each week. The CSE did not recommend that the child receive counseling, or that he receive auditory training as part of his speech therapy. However, respondent's speech therapist testified that auditory training is provided as a part of speech therapy and is not a separate related service. With regard to adaptive physical education, the IEP reveals that the provision of this service was to be determined at a later date. The IEP also provides that the child would be mainstreamed for free play and snacks in a regular education kindergarten. The CSE chairperson testified that the child's mother received a copy of the IEP on August 31, 1990. The IEP was amended in early September to indicate the duration of each therapy session. A copy of the revised IEP was mailed to petitioners on or about September 18, 1990.

        Petitioners unilaterally enrolled their child in the SLCD for the 1990-1991 school year. The hearing which petitioners had requested in July did not commence until December 5, 1990. The record does not reveal the reason for the delay (cf. 8 NYCRR 200.5 [c][10]). The hearing continued on two more days in December, 1990, two days in January, 1991, and concluded on March 14, 1991. At the hearing, the principal points of disagreement between the parties were whether the pupil required individual speech therapy and the appropriateness of the recommended class in the Gunther School.

        In a decision dated April 4, 1991, the hearing officer found that the child would be appropriately served in the class which had been recommended by the CSE. With regard to petitioners' request that their child receive individual speech therapy, the hearing officer erred in finding that respondent's speech therapist had recommended in October, 1990 that the child receive individual therapy. The record reveals that the speech therapist had in fact recommended that another child, not petitioner's child, receive individual speech therapy. By letter dated April 19, 1991, the hearing officer advised petitioners' attorney that he declined to reconsider his decision on the basis of the erroneous finding.

        Petitioners contend that in its August 30, 1990 recommendation the CSE arbitrarily changed its June recommendation for individual speech therapy to group speech therapy without any evidence in the record that the child's needs had changed. They also maintain that the recommended class in the Gunther Elementary School is inappropriate for their child, because he would be grouped with children who have behavioral problems. They object to the teaching methodology applicable in the recommended class. Instead, they prefer a form of instruction which they suggest is more child oriented than that which was recommended. Petitioners assert that the hearing officer failed to address these issues in his decision, and made several erroneous findings in his decision which warrant reversal.

        Respondent argues that the errors to which petitioners refer are inconsequential, and that the recommended placement and program are appropriate to meet the child's needs. Respondent also argues that the recommended placement is the least restrictive environment for the child.

        The hearing officer made three errors in his decision. As noted previously, he erroneously found that respondent's speech therapist had recommended that the child should receive individual speech therapy. The record includes another child's IEP as well as a letter by the speech therapist, both of which have been redacted to delete the other child's name. They were introduced by respondent to refute petitioners' assertion that the CSE never recommends individual speech therapy for children educated in district programs. Although it is clear from the transcript why these documents were introduced, the hearing officer erred in linking the therapist's letter to petitioners' child. The hearing officer also erred in characterizing the legal argument by respondent's attorney as "testimony". Testimony is evidence given by a competent witness under oath or affirmation (Black's Law Dictionary, Fourth Edition). The hearing officer also stated that observations or evaluations were conducted for the first time in August, 1990 by the CSE chairperson, two speech therapists and the school psychologist, when in fact only one of the speech therapists conducted an evaluation in August, and the other three individuals observed the child in July and/or March, 1990.

        Although the hearing officer's decision is obviously flawed by these errors, they do not serve as a basis upon which I must annul the hearing officer's decision or the child's IEP, as requested by petitioners. There are two issues in this appeal that I must address. The first is whether the class recommended by the CSE is appropriate for the child. The second is whether the child needs speech therapy on an individual, rather than a group, basis. However, before I address these two issues, I must first determine whether the record affords an adequate basis for ascertaining the child's needs and the appropriateness of the program recommended by the CSE.

        The Regulations of the Commissioner of Education require that, upon the referral of a child, a CSE shall initiate an evaluation consisting of at least a physical examination, an individual psychological examination, a social history, and other suitable examinations and evaluations, and must also conduct an observation of the child in the current educational setting (8 NYCRR 200.4 [b][1] and [2]). Although at least three members of the CSE had observed the child at the SLCD, the CSE did not conduct any evaluation of the child prior to its June 19, 1990 placement recommendation. There is no written record of the observation by the CSE members. The record does not reveal whether the results of the observation were shared with the other members of the CSE. A CSE may accept suitable evaluations prepared by others, in lieu of conducting certain portions of its own evaluation. Nevertheless, it must perform such examinations as will enable it to have a basis for recommending an appropriate program (Application of a Child with a Handicapping Condition, Appeal No. 91-11). The evaluative data provided by the SLCD and relied upon by the CSE in June included the results of an individual psychological examination and a speech/language evaluation. The results of the non-verbal IQ test were subsequently provided to the CSE in July. There is no evidence in the record that the CSE had obtained a physical examination or a social history for the child, prior to either of the meetings at which it recommended a placement for the child. Although the CSE chairperson's testimony referred to medical records provided by petitioners prior to the August 30 meeting, I note that there are no such medical records contained in the record that is before me.

        At the hearing, petitioners introduced evaluative material consisting of a report from the Schneider Children's Hospital of the Long Island Jewish Hospital. The report included a pediatric neurodevelopmental evaluation, and a speech and language evaluation. The pediatrician's neurodevelopmental evaluation provides extensive social history information, and the results of a medical examination of the child. I do not condone the CSE's failure to provide an adequate evaluation of the child. Nonetheless, I find that it would serve no useful purpose to remand the matter to the CSE to reconsider its recommendation in light of the subsequent evaluative data, insofar as it provides me with an adequate basis upon which to reach a decision as to the appropriateness of the recommended program.

        The change in location of the recommended class from the BOCES to respondent's Gunther School is not objected to by the petitioners. However, petitioners assert that the proposed class is inappropriate for their child because it includes children who have severe behavioral problems.

        The record reveals that the Gunther School is a K-6 elementary school serving approximately 200 children. There are three self-contained special education classes within the School. The recommended class is for the youngest children in the School. The record includes a class profile, which reveals that there are six children between the ages of five and seven in the recommended class. The class is non-categorical, i.e., it includes children with different handicapping conditions, as is authorized by 8 NYCRR 200.6 (a)(3). Three of the children are classified as speech-impaired. Two children are classified as mentally retarded, and one child is classified as emotionally disturbed.

        Although children with different handicapping conditions may be grouped together for instructional purposes, State regulation requires that children be grouped by similarity of individual needs, including consideration of their individual learning characteristics, their levels of social development, their levels of physical development and their management needs (8 NYCRR 200.6 [a][3]). The class profile which is part of the record before me reveals that four of the six children were reading at a first grade level, while the remaining two were described as ready for reading. The functional levels of the children in mathematics were approximately similar. I note that the child's IEP indicates that the SLCD reported him as at the readiness level in both reading and mathematics. All but one child is receiving group speech/language therapy at least three times each week. Each child is described as receiving assistance with fine motor control. The pediatrician at Schneider Children's Hospital found that petitioner's son had mild to moderate difficulty with fine motor coordination. With regard to management needs, the class profile reveals no special needs, except for one speech-impaired child whose needs are described as "impulse control".

        The record also includes the testimony of the child's mother, who observed the class at the Gunther School in February, 1991, and that of a licensed psychologist serving as a consultant to petitioners, who also visited the recommended class. The psychologist testified that while she was in the recommended class for about one hour in November, 1990, she noted that one pupil exhibited a severe behavioral problem, requiring the close attention of the teacher and the aide. She opined that it would be problematic for petitioners' child to be in a classroom with an acting-out child, because the latter's disruptions would interfere with the ability of the teacher to engage the attention of petitioners' son. The psychologist also expressed a preference for a child-centered teaching methodology consisting of activities encouraging children to use language, rather than the more traditional academic and teacher centered methodology which she observed at the Gunther School. However, she did not opine that petitioners' son could not learn with the methodology or environment which she observed at the Gunther School. The child's mother testified that she observed one child in the recommended classroom display severe emotional and disruptive behavior, and that the children in that class did not appear to interact as well as did the children in the child's class at the SLCD.

        I  have considered petitioners' concern about the possible impact of the behavior of one child upon their son's ability to learn in the recommended class. However, I am unable to reach a finding that the recommended class is inappropriate upon speculation as to the possibility of disruption by another child. The petitioners' preference and that of their witness for a less teacher and more speech oriented educational environment, does not per se afford a basis for concluding that respondent's instructional program is inappropriate (Application of Child with a Handicapping Condition, Appeal No. 90-24). In essence, petitioners seek a habilitative, rather than an instructional, program. Petitioners' child is now of school age and he is now ready for academic instruction. The testimony of a second speech therapist employed by respondent established that the program offered at the Gunther School is language oriented and involves the coordinated effort by the special class teacher, special subject teachers and the speech therapist to assist children with speech and language difficulties. Upon the record before me, I find that respondent has met its burden of proving that the recommended instructional program is appropriate to meet the needs of the child.

        The one remaining issue is the level of speech therapy which is appropriate for the child. Petitioners assert that the CSE could not logically alter its recommendation of June 19 that the child receive individual speech therapy, in the absence of evidence of a change in his condition. It is evident that their assertion is premised upon the belief that the CSE had adequate information to make a recommendation in June. However, the CSE merely relied upon the information and recommendation provided by the SLCD. The report from the SLCD described the child as far more in need of the individualized services provided by the SLCD than respondent's staff believed to be necessary. Upon obtaining its own evaluation of the child's speech therapy needs, the CSE had a basis for reaching a different conclusion as to the appropriate manner in which to address those needs.

        Having reviewed the evaluations made by respondent's speech therapist, the SLCD's speech therapist and the speech therapist of the Schneider Children's Hospital, I find that the test results reported in each evaluation are quite similar. While there is one discrepancy in the test results for word articulation, it does not appear to be significant. Nonetheless, the evaluators reach different conclusions about the severity of the child's needs. Taken together the evaluations are professionally subjective, and do not, standing alone, afford a basis for finding that a particular level of service must be provided. Accordingly, I have examined the record to ascertain whether there is evidence of unusual management needs or a learning style which would require that the child receive at least some therapy on an individual basis and thereby justify providing such related service in such a restrictive setting.

        The report prepared by the SLCD refers to the child's distractibility. Nevertheless, it is not clear whether this is the basis for its recommendation for individual therapy. No employee of the SLCD testified at the hearing. However, a speech therapist employed by the Schneider Children's Hospital referred to the child's distractibility in her report and in her testimony at the hearing. Although the speech therapist testified that the child had individual needs which were not likely to be addressed, even in small group therapy, the therapist did not identify any unique needs of the child, other than the conclusory statement of distractibility.

        Respondent's speech therapist testified that the pupil does not have a learning style which is unusual for a kindergarten pupil. She also opined that the child did not have unique physical or management needs which would require individual speech therapy. The speech therapist further testified that group therapy would address the pupil's need to improve his pragmatics, i.e. his ability to engage in a conversation, by maintaining eye contact and taking his turn in a conversation. Group therapy would also provide the child with an opportunity to reinforce what was taught by providing the child emotional support and a milieu wherein the child may practice with peers.

        Upon the record before me, I find that respondent has demonstrated the appropriateness of the group speech therapy which its CSE recommended for the child.


Dated: Albany, New York __________________________
June 21 , 1991 HENRY A. FERNANDEZ