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No. 91-26

Application of a CHILD WITH A HANDICAPPING CONDITION, by her parent, 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 New York


Neal H. Rosenberg, Esq., attorney for petitioner

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent,Denyce Holgate-Wilkins, Esq., of counsel


Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) that petitioner's child be educated in a Modified Instructional Services I (MIS-I) class at P.S. 83 for the 1990-91 school year, rather than at the Churchill School which the child attended during the 1989-90 school year. The appeal must be dismissed.

In 1985, the child entered kindergarten at the Villa Marie Academy, a private school. By the end of first grade in June, 1987, the child's parents noticed that she was encountering some difficulty in school. The parents hired a tutor for the 1987-88 school year. The child was evaluated at the Manhattan Eye, Ear and Throat Hospital in March and April, 1988. That evaluation revealed a disparity between the child's verbal and performance IQ scores, as well as evidence of an impairment in visual discrimination. In October, 1988, an additional private evaluation was conducted at the Child Study Center of Teachers College, Columbia University. That evaluation revealed evidence that the child had considerable difficulty in decoding, and had poor phonetic and mathematics skills. In March, 1989, the parents also had the child evaluated at the Stephen Gaynor School, a private school for children with handicapping conditions. That evaluation revealed that the child had perceptual difficulties and that her performance in mathematics was erratic. The child remained at the Villa Marie Academy through the 1988-89 school year.

In March, 1989, petitioner referred the child to the CSE of Community School District 11, where the parents reside. The CSE arranged to have a social history, a psychological evaluation and an education evaluation performed. On May 2, 1989, the CSE of Community School District 11 recommended that the child not be classified as a child with a handicapping condition.

The parents requested that the CSE's recommendation be reviewed at an impartial hearing, which was held on July 26, 1989. On or about that date, the hearing officer rendered a decision finding that the CSE had failed to meet its burden of proof with respect to its recommendation. The hearing officer noted that the CSE had failed to conduct a classroom observation of the child as required by 8 NYCRR 200.4 (b)(2)(vii), and questioned the interpretations by respondent's staff of the test data regarding the child. The hearing further found that the child was learning disabled, and that the parents were prospectively entitled to have the child placed at respondent's expense at the Churchill School, a State approved private school for children with handicapping conditions, for the 1989-90 school year. The hearing officer noted that the Churchill School was a more restrictive placement than a public school, but further noted that it was uncertain whether an appropriate public school program would be available in September, 1989. Analogizing to the holding of the United States Supreme Court in School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359, the hearing officer concluded that respondent should pay for the child's instruction at the Churchill School.

Respondent did not seek review of the hearing officer's decision. On August 19, 1989, the CSE of Community School District 11 prepared a Phase I individualized education program (IEP) for the child which recommended that the child receive resource room services, but recognized that the child would, in fact, be instructed at the Churchill School for the 1990-91 school year. The child's IEP did not recommend that the child receive any related service, although the record reveals that the child received counseling in a small group once each week at the Churchill School.

Responsibility for the child's educational program was transferred from the CSE of Community School District 11, in which petitioner lives, to the CSE of Community School District 2, where the Churchill School is located. The CSE of the latter Community School District obtained an educational evaluation and social history update of the child in April, 1990, and a psychological evaluation of the child in May, 1990. In April, 1990, a representative of the CSE also observed the child in class at the Churchill School.

On June 8, 1990, the CSE of Community School District 11 recommended that the child be placed in an MIS-I class, with mainstreaming for physical education, lunch and assemblies, for the 1990-91 school year. The CSE further recommended that the child receive individual counseling once each week and counseling in a group not to exceed five children once each week. That recommendation was discussed by the placement officers of both Community School Districts. On June 19, 1990, the parents were advised by the placement officer of Community School District 11 that the recommended class was located at P.S. 83.

Although the record does not reveal when petitioner requested a hearing to review the CSE's recommendation, an educational evaluator testified at the subsequent hearing that he had conducted a classroom observation of the child at the Churchill School in September, 1990, because petitioner had requested an impartial hearing. On September 25, 1990, the evaluator visited the proposed class for the child at P.S. 83. On April 10, 1991, the evaluator made a second classroom observation of the child at the Churchill School. The next day, the CSE of Community School District 2 reviewed its June 8, 1990 recommendation, and again recommended that the child should attend an MIS-I class for the 1990-91 school year.

A hearing to review the CSE's recommendation was held on April 16 and May 9, 1991. In a decision dated June 6, 1991, the hearing officer found that the recommended MIS-I class at P.S. 83 was appropriate for the child. The hearing officer recognized petitioner's concern about the child's ability to adjust to a new school, but found that there was no firm basis for believing that the child could not make a satisfactory adjustment. Recognizing that the 1990-91 school year was all but over at the time of her decision, the hearing officer directed the CSE to look for an MIS-I class in a school where the child could remain for more than one year before transferring to a junior high school.

Petitioner asserts that the hearing officer failed to consider the child's emotional problems, in finding that the recommended placement was appropriate. Specifically, petitioner asserts that the child needs a small, supportive environment in which to consolidate her recent educational and emotional gains. While recognizing the preference under Federal and State law for education in the least restrictive environment, petitioner contends that the less restrictive environment of the MIS-I class in P.S. 83 with its potential for mainstreaming would not be an appropriate educational setting for the child. Finally, petitioner asserts that the hearing officer exceeded her authority by favoring a new placement not offered by the CSE, i.e. an MIS-I class in a school other than P.S. 83.

Respondent asserts that the hearing officer's decision is supported by substantial evidence. Respondent claims that the MIS-I program would appropriately address the child's educational and social needs, in the least restrictive environment. With regard to the hearing officer's directive to find an MIS-I class in a school where the child could remain for more than one year, respondent asserts that on June 21, 1991, the CSE recommended that the child attend an MIS-I class at I.S. 180 for the 1991-92 school year. I.S. 180 has classes through the eighth grade.

Although the child's classification as learning disabled is not in dispute in this appeal, it is necessary to consider the nature of the child's handicapping condition in order to determine whether respondent offered an appropriate placement. The most recent psychological evaluation by the CSE of the child, performed in May, 1990, reveals that the child attained a verbal IQ score of 103 and a performance IQ score of 84. These scores are generally consistent with those achieved in prior testing. Respondent's psychologist noted that the child exhibited significantly lower ability to analyze and synthesize block designs than she had done on similar testing in 1988. The psychologist opined that the child's excessive anxiety may have lowered her ability to conceptualize abstractly. Projective testing of the child revealed that the child had very marked feelings of inadequacy and that she was fearful of her ability to cope in the world around her. The psychologist noted that the child tends to repress her feelings, and is unable to communicate her worries to others. The record also includes a report by a private psychiatrist who interviewed the child and her parents in November, 1990, and had the child read aloud and prepare a short writing sample. The psychiatrist diagnosed the child as having a separation anxiety disorder, with developmental disorders in arithmetic, reading and expressive writing. The psychiatrist noted that, although the child met the diagnostic criteria for a medical diagnosis of separation anxiety, there was no evidence that the child's symptoms of this disorder had interfered with her learning. The psychiatrist recommended that the child not be removed from her class at the Churchill School during the middle of the 1990-91 school year.

An educational evaluation of the child in April, 1990 by the CSE, when the child was in fifth grade at the Churchill School, revealed that the child's reading recognition skill was at a high second grade level, although her reading comprehension was at a 4.8 grade level. The child's spelling skills were reported to be at a 3.1 grade equivalent, reflecting her poor word recognition and decoding skills. The child's mathematics skills ranged from 3.1 in applications to 4.0 in computations. At the hearing in May 1989, the child's teacher at the Churchill School testified that the child was in a reading group for children at between a high third grade and low fourth grade level and that the child's math group was at a fourth grade level. The teacher stated that the child was making slow, steady progress in learning the phonetic structuring of words, as well as basic mathematics skills.

It is well settled that a board of education bears the burden of establishing the appropriateness of its recommended 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; Application of a Child with a Handicapping Condition, 29 id. 83). In order to satisfy its burden, the board of education must show that the program or placement is reasonably calculated to enable the child to receive educational benefits (Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176; Karl v. Board of Education Geneseo Central School District and Ambach, 736 F 2d 873). Federal and State regulations require that, to the maximum extent appropriate, each child must be educated in the least restrictive environment (34 CFR 300.550[b][1]; 8 NYCRR 200.6[a][1]). State Regulation defines least restrictive environment as:

". . . that placement of an individual pupil with a handicapping condition which

(1) provides the special education needed by the pupil,

(2) provides for education of the pupil to the maximum extent appropriate with other pupils who do not have handicapping conditions; and

(3) is determined following consideration of the proximity of the placement to the pupil's place of residence."

Although there is a presumption in favor of mainstreaming, the presumption may be overcome if a mainstream setting will not meet the unique needs of the child (Lackman v. Illinois State Board of Education, 852 F 2d 290; Daniel R.R. v. State Board of Education, 874 F 2d 1036). Respondent's CSE has proposed a placement in a public school in which children with handicapping conditions are educated with their non-handicapped peers. The child's IEP provides for limited mainstreaming in physical education, lunch activities and assemblies. Petitioner asserts that the child requires a more restrictive placement in a private school which serves only children with handicapping conditions. The issue in this appeal is whether the MIS-I class at P.S. 83 recommended by the CSE is reasonably calculated to enable the child to receive educational benefits, in light of her unique educational needs.

The recommended MIS-I class is one of three MIS-I classes, plus three MIS-II classes, and three resource room programs which are located in a building serving approximately 870 children in regular and special education. The special education site supervisor at P.S. 83 testified at the hearing that the school is located in a residential area and is well disciplined. The staff includes a crisis intervention teacher, guidance counselor and a social worker trained to provide counseling. The site supervisor further testified that the special education classes at P.S. 83 have instituted a new behavior and academic management program, which emphasizes the academic performance of children in the MIS-I classes. As part of that program, children are encouraged to ask for help. The site supervisor also testified that the school could provide the counseling which is set forth in the child's IEP.

The site supervisor prepared class profiles of the recommended class to demonstrate that the child would be appropriately grouped according to the learning characteristics, social development, physical development and management needs of the ten children in the group (8 NYCRR 200.6[a][3]). Instruction in reading and mathematics

is departmentalized. The supervisor testified that children are grouped in accordance with their skills and their specific deficits, such as weakness in decoding skills. Although the class profile reveals that the overall reading and mathematics levels of the class are slightly below that of petitioner's child, I note that the record includes additional profiles for the reading and mathematics groups in the departmentalized program which includes children from another MIS-I class. These profiles demonstrate that the child could be appropriately grouped for instruction in those subjects.

The record also includes the testimony of an educational evaluator for the CSE, who visited the proposed class in September, 1990. The evaluator's testimony confirmed that of the site supervisor that the proposed class would be appropriate to meet the needs of the child. I also note that the child's private psychiatrist, who also visited the class at P.S. 83, described the class as quieter than the child's class at the private school, but that it was subject to a number of interruptions. There is, however, no basis in the record to conclude that the child is significantly distractible, or could not function in such a class. Petitioner testified at the hearing that the child required constant supervision and refocusing, in order to do her homework. However, the child's teacher testified that the child is able to work independently, provided that she is given an appropriate assignment, and that she has not found the child to be either distractible or in need of refocusing.

Petitioner testified that she is concerned that the child might regress if her placement were changed. The child's psychiatrist also testified that the child displayed considerable anxiety about a possible separation from her teacher and classmates. The psychiatrist speculated that the child might not continue to progress in the MIS-I class because of the higher child-teacher ratio (12:1) in that class than at the Churchill School, where the child's teacher has one full-time assistant and one part-time assistant for 12 children. The psychiatrist suggested that the ideal time for a change of placement would be after the child completes the sixth grade.

With regard to petitioner's concern as to the child's ability to adjust to change, I am unable to conclude from the record that the child will regress if her placement is changed. The record reveals that she has functioned satisfactorily in the private school, after an initial period of unhappiness about being in a school for children with handicapping conditions. Although the child continues to have deep anxiety about performing well in school, there is no reason to believe that she could not find academic success in the supportive environment of the MIS-I class. The child may have received a greater amount of individual attention in her present placement, but the record does not afford a basis for concluding that a 12:1 child-teacher ratio would be inadequate. Accordingly, I find that the respondent has demonstrated that the recommended placement would have been appropriate to meet the needs of the child, and that she does not require the more restrictive environment in which she is presently placed.

Although the parties are entitled to a decision on the appropriateness of the placement offered by the CSE for the 1990-91 school year, I note that respondent is nevertheless obliged to pay for the child's tuition at the Churchill School for such school year because of the pendency provisions of Section 4404 (4) of the Education Law (Zvi D. v. Ambach, 694 F 2d 290). In its answer, respondent asserts that on June 21, 1991, the CSE recommended that the child be placed for the 1991-92 school year in an MIS-I class at I.S. 180, where she could remain through eighth grade. The appropriateness of that class is not an issue which I can decide on the record before me. That determination must first be made by a hearing officer, in the event the petitioner wishes to challenge the recommendation.


Dated: Albany, New York __________________________
September 27 , 1991 HENRY A. FERNANDEZ