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No. 91-28

Application of a CHILD WITH A HANDICAPPING CONDITION, by his parent, for review of a determination of a hearing officer relating to the educational program offered by the Board of Education of the City School District of the City of New York


Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, Payal Mehta, Esq., of counsel


Petitioner appeals from the decision of an impartial hearing officer which held that respondent's committee on special education (CSE) had correctly recommended that petitioner's child continue to be classified as autistic and that he remain on a 12-month basis in a special class of P. 141, which is located within P.S. 236 in Brooklyn, New York. The appeal must be dismissed.

The child attended preschool at the Milestone School for Child Development, which referred him to the CSE in March, 1986, for placement as a school age child during the 1986-87 school year. On May 17, 1986, the CSE classified the child as emotionally disturbed and mentally retarded, and recommended that he be placed in a Specialized Instructional Environment VI class for the 1986-87 school year. Within one month after he began to attend the recommended class at P.S. 236, the child was referred by the school to the CSE, because the school believed that the child's needs could not be met in the recommended class.

On October 9, 1986, following a re-evaluation, the CSE recommended that the child be classified as autistic and that he be placed in a Specialized Instructional Environment III (SIE III) class at P. 141. The child was also evaluated by the CSE, at petitioner's request, in January, 1988 and March, 1990. However, the CSE continued to recommend that the child remain in the SIE-III class.

Petitioner requested that an impartial hearing be held to review the CSE's recommendation following its 1990 re-evaluation of the child. In a decision dated July 17, 1990, an impartial hearing officer rejected petitioner's request for a residential placement and directed respondents to continue the child's placement in the SIE-III class. The hearing officer further directed respondent to provide petitioner with a list of public and/or private agencies which offer home care and/or respite services for families with autistic children. The hearing officer also directed respondent to provide petitioner with one hour of counseling in her home, five days each week. The counseling was to assist petitioner in developing behavioral techniques and procedures for dealing with the child at home. Finally, the hearing officer ordered the CSE to meet within 3 months to review the child's progress in the SIE-III class with petitioner.

The in-home counseling commenced in late July and continued through the middle of August, 1990. When the counselor attempted to resume counseling petitioner in September, 1990, petitioner requested that she discontinue the counseling, because she doubted its effectiveness.

In October, 1990, petitioner wrote to the hearing officer that the CSE had failed to provide her with the name of any new agency which could furnish respite care, and that the individual sent by the CSE to provide counseling had not provided any counseling. The record does not reveal any response by the hearing officer to the petitioner's letter.

The CSE's vice chairperson testified at the hearing that petitioner requested an impartial hearing in October, 1990. Thereafter, petitioner was invited to attend a meeting of the CSE in October, 1990, in accordance with the hearing officer's decision. Petitioner declined to attend the meeting and requested a postponement of her request for a hearing, because she wished to await receipt of the results of a private evaluation of her child at the Stanley S. Lamm Institute of Child Neurology and Developmental Medicine of the Long Island College Hospital (Lamm Institute). On November 7, 1990, the CSE met without the petitioner. The CSE decided that the child should remain in the SIE-III class at P. 141, with speech therapy 3 times each week in a group of 3 children and occupational therapy twice each week on an individual basis.

In March, 1991, the CSE received the results of the child's evaluation by the Lamm Institute. The medical director of the evaluation team provisionally diagnosed the child as having a pervasive developmental disorder with autistic and psychotic features, with borderline intellectual potential and a communication impairment. The Lamm Institute recommended that the child be placed in a small structured special education setting for communication impaired children with autistic features, in order to provide intensive communication skills training with an emphasis on functional academics. Although the Lamm Institute recommended that the child receive speech therapy 3 times each week, its recommendation lists therapy in a group once a week and individual therapy once a week. The Lamm Institute recommended that the child receive one individual and one group session of occupational therapy each week, as well as an unspecified amount of counseling for the child and petitioner.

On March 22, 1991, the child's speech therapist at P. 141 asked the CSE to recommend that the child's speech therapy be increased from 3 sessions in groups of 3 children each week to 2 individual sessions and 3 sessions in groups of 2 children, in order to maintain the child's progress. At an educational planning conference held on April 18, 1991, the speech therapist's request was approved.

Petitioner requested that an impartial hearing be held. The CSE responded by asking petitioner to meet with it, to resolve their differences. Petitioner declined to meet with the CSE, which reviewed the child's classification and placement on May 16, 1991. The CSE recommended that the child's classification and program remain unchanged for the 1991-92 school year, with the exception of the change in speech therapy which had been recommended by the child's speech therapist.

In May, 1991, petitioner renewed her request for an impartial hearing, which was held on May 23, 1991. At the hearing, petitioner was assisted by a lay advocate who urged that the child's classification should be changed to emotionally disturbed based upon the evaluation by the Lamm Institute. The advocate also requested that a residential placement be provided for the child, because of the inability of the SIE-III program to meet the needs of the child and the child's increasingly difficult behavior at home.

In a decision dated June 19, 1991, the hearing officer found that the CSE had demonstrated that the child met the criteria set forth in State regulation for designation as an autistic child. While sympathizing with the plight of petitioner in her inability to cope with the child at home, the hearing officer found that the SIE-III class would appropriately serve the child's academic and social needs.

Although petitioner does not specifically challenge the child's classification, in this appeal, I note that she did raise the issue at the hearing and that she does assert in this appeal that the Lamm Institute found that the child has a pervasive developmental disorder "with only Autistic-like features" (petitioner's emphasis). She asserts that the child is only mildly retarded and communication impaired and relies upon a finding by the Lamm Institute that on one measure of non-verbal cognitive ability the child achieved a score of 76.

An autistic child is defined as:

"A pupil who manifests a behaviorally defined syndrome which occurs in children of all levels of intelligence. The essential features are typically manifested prior to 30 months of age and include severe disturbances of developmental rates and/or sequences of responses to sensory stimuli, of speech, of language, of cognitive capacities, and of the ability to relate to people, events and objects." (8 NYCRR 200.1[ff][1])

The record reveals that the CSE and the Lamm Institute obtained comparable scores in the low to mid 50's when the child's IQ was tested on the Stanford-Binet. The child's performance on a Leiter International Performance Scale, which is a visual, non-verbal measure of cognitive ability, led a psychologist at the Lamm Institute to conclude that the child demonstrated non-verbal reasoning skills within the borderline range, when language and social interaction demands are minimized. At the hearing, the respondent's psychologist disputed the conclusion that the child's score of 76 on the Leiter is in fact the equivalent of an IQ of 76 on the Stanford-Binet. However, I find that it is not necessary for me to reconcile this difference of opinion among psychologists as to the meaning of the test results. The definition of an autistic child in the Regulations of the Commissioner of Education specifically provides that this condition may occur in children of all levels of intelligence.

There is no dispute that the child has a serious developmental disorder, which is manifested by a severe receptive and expressive language disorder. In an October, 1990 speech/language evaluation by the Lamm Institute, when he was 9 years and 11 months old, the child was described as functioning at a two and one-half to three and one-half year old level. The child displayed behavior which was stereotypical of autism, such as finger flicking, bruxism, poor eye contact, echolalia, and hand flapping. The psychologist at the Lamm Institute also noted that the child's eye contact was fleeting, his behavior was rigid with stereotypical self-stimulating gestures. The Lamm Institute psychologist believed that this child appeared to be "somewhat more related than most children who are diagnosed as autistic". The CSE's psychologist opined at the hearing that the child met the criteria for classification as autistic, because of his developmental delay in communication, his behavior in class as observed by the psychologist, and the fact that in a prior social history, petitioner had stated that the child became withdrawn around the age of 2 years.

I find, upon the record before me, that the child is appropriately classified as autistic, in view of the documentation of several essential features of the syndrome, including early onset, severely diminished development of language, cognitive ability and social relatedness. I have considered the conclusions of the evaluation done at the Lamm Institute. I note that the diagnosis given by the Institute is a clinical diagnosis, and that the characteristics of the child which the Lamm Institute described in its evaluation are in fact consistent with the educational definition of an autistic child in the Regulations of the Commissioner of Education.

Respondent is required to provide an appropriate program specifically designed to meet the unique needs of each child with a handicapping condition, supported by such services as are necessary to permit the child to benefit from instruction (20 USC

1401 et seq; Article 89 of the Education Law; and Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176). It is well established that a board of education bears the burden of establishing the appropriateness of its program (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).

The record reveals that the child has progressed in the SIE-III class, from being a non-verbal, non-interactive child in 1986 to a child who can now use words to talk about the past, the present and the way he feels. The child's speech pathologist at P. 141 testified at the hearing that the child's communication skills have improved significantly, as has his behavior. She further testified that the child is more aware of people and places and of things which happen to him, and has now begun to initiate verbal interaction with other persons.

The child's current individualized education program (IEP) emphasizes goals of improving his communication skills, and improving his academic readiness skills. I note that the IEP's description of the child's present levels of development is consistent with the levels identified in the evaluation performed by the Lamm Institute. The IEP states that the child requires a small, structured full-time setting with close supervision, to address his cognitive and language needs, as well as occupational therapy and adaptive physical education.

A written description of respondent's SIE-III program which is part of the record before me reveals that the program provides intensive services in oral and/or alternative communication skills, intensive instruction in emotional responsiveness to enhance functioning in school and other environments, intensive instruction in functional life skills and functional academics, as well as intensive instruction in behavior control and interaction with others. The program is designed for children who have severe difficulties in the acquisition and generalization of oral language and/or alternate communication skills and appropriate attending skills, and who demonstrate an inconsistent pattern of intellectual functioning which is in the mild range of retardation or below. Children in the SIE-III program demonstrate severe difficulty in developing social skills and may lack spontaneous verbalization in social situations and exhibit perseverative and self-stimulating behavior. Instruction is provided by a teacher, with the assistance of an aide, in a class which is limited to 6 children.

The CSE's speech/language and educational evaluator, who had observed the child in his SIE-III class, testified at the hearing that the child received instruction in pre-academic and functional skills, with an emphasis on communications skills in all subjects and activities. The evaluator described the child as being more adept at communication than other children in his class, but that he required more intervention to remain on task. The child's teacher for the 1989-90 and 1990-91 school years described her class as consisting of 5 children between 9 and 11 years of age, with reading and mathematical skills ranging from pre-primer through early first grade. The teacher testified that petitioner's child was at the kindergarten to early first grade level in both reading and mathematics. Each of the children in the class have below average expressive and receptive language and writing abilities, and each child receives speech/language therapy as a related service. All but one of the children receives occupational therapy, and all receive adaptive physical education.

The child's teacher testified that all of the children in the SIE-III class have similar levels of social development and exhibit intermittent eye contact and relationships with others, as well as perseverative behavior. The teacher described this child as self-stimulatory, a characteristic which was also noted by the Lamm Institute psychologist. The teacher further testified that, since she began teaching the child in September, 1989, she has observed that the child has begun to develop a sense of humor and an awareness of what is inappropriate behavior, and that he has learned to share with others and wait for his turn. Academically, he has begun to sight read and can tell time to within five minute intervals. The teacher testified that the child had met some of the goals listed in his IEP which was prepared in December, 1990, and that he has continued to make progress towards completion of his unachieved goals.

At the hearing, petitioner conceded that the child's speech had improved since entering the SIE-III class and that he is now able to recognize more words and to do simple mathematics. However, she asserts in this appeal that his academic progress has been minimal, in terms of his intellectual potential. She also asserts that the child's social behavior at home and in the community has worsened, and that he is now a danger to himself and others. Petitioner seeks a residential placement for the child, upon the grounds that he requires a more extensive level of services and supervision than can be provided in a day placement such as the SIE-III class.

I find that respondent has demonstrated that the SIE-III class in which the CSE recommended that the child remain is appropriate to meet his individual needs. It is a language intensive, structured, small group setting which should continue to address the child's academic and social needs. It is consistent with the recommendation by the Lamm Institute. The class profile, as well as the testimony of the child's teacher, establish that the child is appropriately grouped with children having similar needs, as is required by 8 NYCRR 200.6(a)(3). The child continues to progress academically at a rate which is commensurate with his verbal and non-verbal cognitive abilities. There is no support in

the record for petitioner's assertion that the SIE-III class is intended for children who function at a lower level than her child.

With regard to petitioner's assertion that the child's behavior has worsened since entering the SIE-III, I note that petitioner's testimony as to the child's behavior at home and in the community is at a sharp variance with the testimony of his teachers at P. 141 and the written evaluation by the Lamm Institute. Petitioner referred to instances where the child attempted to exit from a moving car, pulled items off the shelves of stores and had hit petitioner and her mother. The child's teacher and his speech/language teacher both testified that he is amenable to verbal correction, and that his behavior in school is generally acceptable. The psychologist at the Lamm Institute found the child to be cooperative but distractible, and the Institute's speech therapist reported that the child could be easily refocused by verbal means. An occupational therapist at the Lamm Institute reported that the child was noticeably more active and disorganized in his mother's presence.

Although petitioner disputes the effectiveness of the behavior management techniques which she has been given, I note that in an interview with the Lamm Institute's psychologist petitioner revealed that she has not consistently applied such techniques. In any event, the child's behavior at home does not, per se, afford a basis for concluding that the recommended day placement is inappropriate for the child, absent evidence that a residential placement is necessary for the child to benefit from instruction (Application of a Handicapped Child, 21 Ed. Dept. Rep. 293; Application of a Child with a Handicapping Condition, 27 id. 131; Application of a Child with a Handicapping Condition, 29 id. 20). In this instance, there is no evidence that the behavior reported by petitioner has had any impact upon the child's performance in school. Section 4402(2)(b)(2) of the Education Law precludes the placement of a child in a residential school, unless there is no appropriate non-residential school available. Federal and State regulations require that each child with a handicapping condition be placed in the least restrictive environment (34 CFR 300.550[b]; 8 NYCRR 200.6[a][1]). Since I have found that the recommended day placement is appropriate, a residential placement would not be the least restrictive environment.

While I must dismiss the appeal for all of the foregoing reasons, I urge petitioner to seek assistance from the CSE and other agencies in learning and applying on a consistent basis appropriate behavior management techniques with her son.


Dated: Albany, New York __________________________
September 5 , 1991 HENRY A. FERNANDEZ