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No. 91-24

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 Florida Union Free School District


Robert J. Dickover, Esq., attorney for respondent


Petitioners appeal from the decision of an impartial hearing officer upholding the recommendation of respondent's committee on special education (CSE) that petitioner's child be placed in a special education class of the Board of Cooperative Educational Services for Orange and Ulster Counties (BOCES) and denying petitioners' request that the child be placed in an out-of-state residential school for the 1990-91 school year. The appeal must be sustained in part.

Petitioners' 14 year old child has a receptive and expressive language disability which impairs his ability to acquire and process verbal information, and to understand and express complex thoughts. Intelligence testing performed in March, 1989 revealed a significant difference between a verbal I.Q. score of 94 and a performance I.Q. score of 118. In testing performed in the Fall of 1990 while he was in the eighth grade, the child's reading and mathematical skills were found to be at the second and sixth grade levels, respectively. Psychological evaluations, as well as the child's extensive anecdotal school

records, reveal that the child has experienced a great deal of frustration and anger related to his learning disability, that he has low self-esteem and that he has difficulty maintaining interpersonal relationships with his peers.

The child was initially classified as speech impaired in October, 1983. His classification was changed to emotionally disturbed in April, 1986, and to learning disabled in April, 1989. At an April, 1990 meeting of the CSE, the child's classification was changed to multiply handicapped (learning disabled and emotionally disturbed). The child's classification was subsequently changed to learning disabled at a CSE meeting held on November 26, 1990. There is no dispute as to the child's classification.

The child entered kindergarten at respondent's Golden Hill Elementary School in September, 1981. He exhibited some delay in social development, but was advanced to first grade for the 1982-83 school year. In May, 1983, the child was referred to respondent's committee on the handicapped, now known as the CSE. Respondent's school psychologist recognized that the child had a serious lag in language development and recommended that he be evaluated by a speech/language teacher. The record includes a brief note by a speech/language teacher stating that the child's expressive language was satisfactory. Nevertheless, in October 1983, the child was classified as speech impaired and provided with speech therapy 3 times per week. The child repeated first grade during the 1983-84 school year. In November, 1985, while he was in third grade, the child was referred to the committee on the handicapped, because he was below grade level in reading and mathematics and had poor relationships with his peers.

On April 30, 1986, the committee on the handicapped recommended that the child's classification be changed to emotionally disturbed. The CSE also recommended that he be educated in a special class, with mainstreaming for special subjects at the Golden Hill Elementary School during the 1986-87 school year. The record reveals that the child received privately provided counseling from May, 1986 until December, 1986, to address his low self-esteem and to develop mechanisms to cope with his frustration. The child remained in a special education class, with mainstreaming for special subjects, i.e. art, music and physical education, for fourth, fifth and sixth grades. For the 1988-89 school year, when he was in sixth grade, the child received counseling in a group, once a week, in addition to speech/language therapy three times each week.

At an annual review held in April, 1989, to plan for the 1989-90 school year, the CSE recommended that the child's classification be changed to learning disabled and that he be educated in a special class of not more than 12 children with a teacher and an aide located at respondent's S.S. Seward Institute. The child's individualized education program (IEP) provided that the child would be mainstreamed for special subjects, and would receive speech/language therapy 3 times each week and group counseling once each week. The IEP was subsequently amended in November, 1989 to reduce speech therapy to 2 sessions each week. During the 1989-90 school year, the child had some academic success in mathematics, but received unsatisfactory grades in the remainder of his subjects, except health. The comments of the child's teachers on his report card express the belief that the child should have worked harder in his courses. A summary of his anecdotal record for the 1989-90 school year reveals that he was disciplined for fighting on at least five occasions, and was accused of destroying a teacher's photographic slide.

On April 26, 1990, the CSE prepared the child's IEP for the 1990-91 school year, in which the CSE recommended that the child's classification be changed to multiply handicapped (emotionally disturbed and learning disabled), and that he be educated in a special class of not more than 12 children with a teacher and an aide at the BOCES. The CSE further recommended that the child receive speech/language therapy in a group 3 times a week and counseling in a group once a week.

Petitioners did not attend the April 26, 1990 meeting of the CSE. By letter dated July 20, 1990, the child's mother objected to the CSE's recommendation and asked the CSE to meet with her. A CSE meeting scheduled for August 1, 1990 was postponed because the child's school records were temporarily misplaced in the district's files. The CSE agreed to pay for an independent evaluation of the child, which was completed in early October, 1990. The CSE met with the child's mother on August 23, 1990, at which time the CSE recommended that the child's 1989-90 IEP continue to be followed during the 1990-91 school year, pending completion of an independent evaluation of the child.

Following an incident on October 19, 1990 in which the child tampered with food prepared by another pupil, he was removed from a home and careers course by the high school principal, who asked the CSE to meet to revise the child's IEP. The meeting, which was initially adjourned at petitioners' request was held on November 26, 1990. The results of the child's independent evaluation were considered by the CSE, which recommended that the child's IEP be amended to decrease the amount of speech/language therapy to twice each week, to increase the amount of counseling by adding one session of individual counseling each week, and by adding remedial reading twice each week. The CSE continued to recommend that the child be placed in a BOCES special class.

On November 26, 1990, petitioners requested that an impartial hearing be held to review the recommended placement. By letter dated November 29, 1990, the CSE chairperson advised petitioners that the CSE had voted prematurely on the child's placement, and that various program options would be considered. Petitioners were invited to meet with the CSE on December 6, 1990. However, petitioners declined to do so, and respondent appointed an impartial hearing officer.

A hearing was convened on January 16, 1991, but the parties agreed to attempt to resolve their differences at a meeting of the CSE to be held on that day. Agreement was reached that the child should be re-classified as learning disabled, and that he should be educated in a class of no more than 12 children with a teacher and an aide, with one session of group and one session of individual counseling each week and speech/language therapy 5 times each week. It was further agreed that petitioners would visit a proposed BOCES placement and the CSE chairperson would visit a private school in New Jersey, before the CSE recommended the child's placement.

On February 7, 1991, petitioners requested that an impartial hearing be held. The CSE met on March 6, 1991, to revise the child's IEP to provide that he attend BOCES. Respondent approved the CSE's recommendation on March 11, 1991.

The hearing commenced on March 20, 1991, and was held on a total of 4 days, ending May 8, 1991. By decision dated May 28, 1991, the hearing officer found that the recommended class at BOCES was appropriate for the child, and denied petitioner's request that respondent be compelled to place the child in the Pathway School, an approved private, residential school. The hearing officer found that a residential placement would not be the least restrictive environment for the child.

Petitioners assert that respondent failed to meet its burden of proof with respect to the appropriateness of the recommended BOCES class, because respondent did not present any expert witness and relied upon the testimony of its CSE chairperson and a principal employed by the BOCES, neither of whom is certified in special education. Petitioner further assert that, in any event, the record demonstrates that the proposed BOCES class would not provide a language infused curriculum which is required by the child's IEP.

The qualifications of the witnesses presented by a party may be considered in determining the weight to be given to the testimony of the witnesses. In this instance, both of the witnesses presented by respondent are qualified to supervise instruction in regular and special education. However, the critical issue is the extent of their knowledge of this child's needs and of the proposed placement for him. Neither the CSE chairperson nor the BOCES administrator was able to demonstrate that the proposed placement would meet the child's needs. It is well established that a board of education bears the burden of establishing the appropriateness of its program or placement (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). I find that respondent has failed to meet its burden of proof.

The child's language disability was initially identified by respondent's school psychologist in 1983. However, the extent and nature of the disability was not assessed until an independent evaluation was performed in the Fall of 1990. The child has great difficulty in understanding questions which are asked of him and in expressing his own thoughts in response to questions or directions, despite being of normal intelligence. The child is aware of his strengths and weaknesses, and tends to become angry and defensive about his inability to promptly respond to complex questions or directions. However, if such directions or questions are broken down into simpler thoughts the child is able and willing to provide appropriate responses.

Although the child clearly has emotional difficulties, the psychologist who performed the independent evaluation testified at the hearing that his primary educational disability was not an emotional disturbance. His primary educational disability is in expressive and receptive language processing. The psychologist recommended that the child be placed in a class of language impaired adolescents to address his deficient vocabulary, his word retrieval problems and difficulties in expressing himself. The psychologist stressed that the child should receive daily individual remediation in spelling and reading, and that the child's strengths in visual memory and the ability to use visual clues should be employed in improving his ability to read.

The psychologist who performed the independent evaluation also spoke to the CSE about the child's needs. The child's most recent IEP emphasizes the child's need to improve his language skills, with secondary consideration for improvement of his social skills. The IEP calls for language to be infused throughout the child's curriculum, and describes him as having a severe language handicap.

Information about the proposed class at BOCES is extremely limited in the record. Respondent's CSE chairperson testified that she is generally familiar with BOCES programs, but could not identify a specific class or provide information about the way in which instruction would be provided or the strengths and needs of the other children in such class. In essence, the CSE chairperson testified that she had discussed the child's needs with an administrator at the BOCES, who had informed the chairperson that BOCES could provide an appropriate program.

The BOCES administrator testified that the child had never been formally referred by the CSE to the BOCES for placement, and that his knowledge of the child's needs was limited to a copy of the child's IEP which he had received and discussed with the CSE chairperson. Although the administrator appeared to understand that the child's primary need was for a language infused curriculum, he did not explain, in his testimony, how the BOCES would provide such curriculum. The administrator suggested that a BOCES speech therapist would work closely with the child's teacher, and that the details of the curriculum would be left up to the child's teacher. The administrator described the proposed class as his highest functioning group, consisting of 4 children who are classified as learning disabled and 7 children who are classified as emotionally disturbed. He further testified that the BOCES program was not built around language, and that the primary focus of the program was behavior management.

Although the fact that the proposed class would include children who are classified as emotionally disturbed as well as children who are classified as learning disabled was discussed at the hearing, I must point out that the State regulation provides that children with different handicapping conditions may be grouped together for instructional purposes (8 NYCRR 200.6 [a][3]). However, the regulation provides that such children must 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. The record is insufficient to demonstrate that the needs of this child are similar to those of the children in the proposed class. I note that the psychologist who performed the independent evaluation of the child testified that the BOCES administrator had told her that most of the children in the proposed class were reading at a sixth or seventh grade level, while petitioners' child reads at a second grade level.

I find that respondent has failed to demonstrate that the proposed class at BOCES would address the needs of petitioners' child or that the child would be appropriately grouped with the children in such class. However, it does not follow that the child should be placed in a residential school, as sought by petitioners, or that the child should be placed on a 12-month basis, which petitioners also request. Petitioners first raised the issue of a 12-month placement at the hearing. Although their advocate stated that she would address the issue of the child's need for services during an extended school year, I find that the record does not afford a basis for concluding that the child should receive services beyond the normal 10-month school year. The Regulations of the Commissioner of Education were amended, as of July 1, 1991, to provide that 12-month special services are available to children whose handicapping conditions require a structured learning environment of up to 12 months duration to prevent substantial regression (8 NYCRR 200.1 [00]). There is no evidence of any substantial regression by this child during the months of July and August.

Petitioners' request for a residential placement must be considered in accordance with the requirement of Federal and State regulation that each child with a handicapping condition be educated in the least restrictive environment (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]). Special services must be available to children along a continuum, ranging from supportive services in regular education classes through special classes and special schools to home and hospital instruction. Section 4402 (2)(b)(2) of the Education Law provides that no child shall be placed in a residential school, unless there is no appropriate non-residential school available which is consistent with the needs of the child.

Although petitioners assert that the hearing officer failed to understand the requirements of least restrictive environment by not considering the potentially harmful effect of a BOCES placement and in finding that a local placement must be tried before resorting to an out-of-state placement, I note that there is virtually no evidence in the record as to other possible placements, such as in special education classes in neighboring school districts or in day placements in approved private schools. Therefore, I find that the record is insufficient to allow me to determine that there is no suitable public or private day placement available for this child.

Respondent's CSE must explore alternative placements for the child. The CSE must look for a placement which offers an age appropriate language oriented curriculum, which will provide instruction at the child's present level of verbal processing and comprehension. The program should be provided in a structured environment, and must include adequate remedial instruction, as well as supportive services such as counseling to address his emotional needs. As a first step, the CSE should prepare a vocational assessment of the child (8 NYCRR 200.4 [b][2][iv]). As noted in the independent evaluation, the child solves problems comfortably and efficiently using his hands. A suitable vocational program should enable him to enjoy success in school and reinforce the efforts to improve his academic skills. I urge the CSE to seek the assistance of the State Education Department's Office for Special Education Services in locating an appropriate placement for the child.


IT IS ORDERED that the decision of the hearing officer be, and the same hereby is, annulled, to the extent of finding that respondent had established that the proposed BOCES class was appropriate, and

IT IS FURTHER ORDERED that within 45 calendar days after the date of this decision, the CSE shall recommend to respondent an appropriate placement for the 1991-92 school year for the child.

Dated: Albany, New York __________________________
August 22 , 1991 HENRY A. FERNANDEZ