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 provided 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, P. G. Filippatos, Esq., of counsel
Petitioner appeals from a decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that petitioner's child be classified as multiply handicapped and that he be placed in a specialized instructional environment-II (SIE-II) class at Public School 10, which is located within Public School 186 in the Bronx. The appeal must be dismissed.
Petitioner's child was born in January, 1985 in Pennsylvania. At the age of two and one-half months, the child first experienced seizures, for which he has been hospitalized on a number of occasions, most recently in June, 1991. In November, 1988, the child was diagnosed by the Institute for the Achievement of Human Potential in Philadelphia, as having a profound mid-brain injury. In February, 1984, petitioner began a home based habilitation program for her child, using respiratory and physical exercises and sensory stimulation under the auspices of the Institutes for the Achievement of Human Potential.
In January, 1990, petitioner moved to New York City, and referred the child to the CSE of Community School District 10 for placement during the 1990-91 school year. Petitioner was interviewed for a social history of the child in August, 1990. In September, 1990, an educational evaluation and a psychological evaluation of the child were performed. The child's condition precluded the use of formal tests, and the evaluators relied upon information provided by petitioner to ascertain the child's developmental level. The educational evaluator noted that the child displayed very little movement of his body, hands and fingers, and that his eye and head movements appeared to be at random. Respondent's psychologist, using information provided by petitioner for the Vineland Adaptive Behavior Scale, concluded that the child was functioning at the level of an infant between four months and one year old, when the child was five years and nine months of age. The psychologist also noted a marked impairment of the child's fine and gross motor skills. The psychologist concluded that the child was functioning within the profoundly retarded range.
In September, 1990, a physician at the Columbia-Presbyterian Hospital's Broadway Clinic diagnosed the child as having infantile spasm/chronic seizure disorder and recommended that the child receive physical therapy and occupational therapy for range of motion exercises and to increase the child's awareness of his environment. The physician reported that he was unable to evaluate the child's vision or hearing. In a psychiatric evaluation completed in October, 1990, the evaluator noted that the child displayed profound neuro-developmental delays, and that the child had a history of exhibiting diffuse and spastic quadriparesis (paralysis), seizure disorder and a neuro-degenerative disorder. The psychiatrist also recommended that the child receive occupational therapy and physical therapy.
On October 10, 1990, petitioner met with the CSE, which recommended that the child be classified as multiply handicapped in view of his mental retardation and orthopedic impairment, and that he be placed on a twelve-month basis in the SIE-II program with the related services of physical therapy and occupational therapy. However, respondent had no space available in its SIE-II program. On October 15, 1990, petitioner was authorized by respondent to select an approved private school to provide an appropriate program for the child at respondent's expense, in view of respondent's inability to provide such a program on a timely basis, pursuant to the 1982 order of the United States District court for the Eastern District of New York in Jose P. et al. v. Ambach et al., 3 EHLR 553:298. In November, 1990, the child was placed by petitioner in the Institute of Applied Human Dynamics (IAHD), an approved private school located in the Bronx. The CSE revised the child's individualized education program (IEP) in December, 1990, because the child-teacher-aide ratio at the IAHD was 12-1-4 although the CSE had initially recommended placement in a program with a 6:1:2 ratio, and because the CSE added adaptive physical education to the child's IEP. After it received an occupational therapy evaluation of the child, the CSE further amended the child's IEP to provide occupational therapy.
Responsibility for the child was transferred to the CSE of Community School District 11, where the IAHD is located. In April, 1991, that CSE received a progress report from the IAHD, which stated that the child was appropriately placed in its class for severely and profoundly retarded children. A meeting between petitioner and the CSE was scheduled for May 17, 1991, for the purpose of preparing the child's IEP for the 1991-92 school year. At the hearing, petitioner testified that she initially received notice that the meeting would be held on May 8, and that at her request the meeting was rescheduled for May 17. Petitioner further testified that she subsequently received a new notice stating that the meeting had been rescheduled for May 22, 1991, and that she did not appear before the CSE on May 17, 1991. The CSE prepared an IEP for the child on May 17, 1991, despite the fact that petitioner did not appear. However, the CSD did meet with petitioner on May 22, 1991, at which time it affirmed its recommendation of May 17 that the child be placed on a twelve month basis in the SIE-II program as of July, 1991. The CSE recommended that the child receive physical therapy twice per week and occupational therapy twice per week, as well as daily health services from an aide for toileting assistance, activities of daily living and feeding. The CSE further recommended that a standing board and an adaptive chair be used with the child. The child was to be transported to Public School 186 in a lift-equipped bus.
On June 25, 1991, petitioner requested that an impartial hearing be held, because she believed that the IAHD satisfied the child's needs and that a change in placement would be disruptive. The hearing was held on July 17, 1991. In a decision dated August 6, 1991, the hearing officer noted that petitioner had not challenged the child's classification, but the hearing officer found that the child was appropriately classified as multiply handicapped and that the SIE-II class offered by respondent was appropriate.
Petitioner asserts that the CSE should not have conducted an annual review of the child in her absence on May 17, 1991, because she had received a notice rescheduling the annual review for May 22, 1991. State regulation provides that, prior to an annual review, a CSE shall notify the child's parent of its intent to review the child's program and placement (8 NYCRR 200.4 [f]). Such notice must be provided at least five days prior to the meeting of the CSE (8 NYCRR 200.5 [a]). Petitioner admits that she requested an adjournment of the initial annual review meeting which she testified was scheduled for May 8, 1991, not May 17, 1991. If a parent is unable to attend a CSE meeting, the CSE must attempt to arrange for alternative means of allowing the parent to participate, such as individual or conference telephone calls, and must document such attempts (8 NYCRR 200.4 [c]). Although the record is confused on the issue of the original date of the meeting, i.e., May 8 or May 17, the petitioner admitted that she received a notice of the meeting rescheduled for May 22, 1991. The record and the IEP demonstrate that the parent was provided an opportunity to review the child's program and placement and to provide the CSE with her concerns and recommendation. In view of the fact that the CSE did meet with petitioner on May 22, 1991, I find that there is no basis upon which I may set aside the May 22, 1991 recommendation of the CSE.
Although petitioner did not challenge the classification of her child as multiply handicapped (mentally retarded and orthopedically impaired) at the hearing, she asserts in her petition that she "translates mental retardation as non-existent". She further asserts that brain injury and intellect are related only insofar as a brain injury affects one's ability to express one's intellect, and that her child's injury to his mid-brain has affected his language, but not his intellect. However, I find that there is substantial evidence in the record to support the classification of multiply handicapped (mentally retarded and orthopedically impaired) for the purpose of determining what educational program should be provided to the child.
The record includes a letter from the child's neurologist at the Lincoln Medical and Mental Health Center, dated June 24, 1991, in which the neurologist stated that the child has severe mental retardation, and is functioning at the age of 3-4 months. Respondent's psychologist found that the child's condition precluded the use of a standardized IQ test. Using the Vineland Adaptive Behavior Scale, with information provided by petitioner, the psychologist found that the child's social adaptive functioning ranged from the equivalent of four months to one year. The psychologist reported that the child did not attend to visual or auditory stimuli, and that his interactive responses were minimal. The child's expressive and receptive language skills were equivalent to those of a ten month old child. His daily living skills were found to be at the level of a one year old child. The psychologist concluded that the child was functioning within the profoundly retarded range. At the hearing, the education director of the IAHD testified that the child was functioning cognitively at a very low level, but with a certain awareness and sensitivity to things which would perhaps make him higher functioning. Although it is not possible to formally assess the child's intellect, the record demonstrates that the child is functioning at a significantly low level, with concurrent deficits in adaptive behavior. Accordingly, I find that he meets the definition of a mentally retarded child set forth in 8 NYCRR 200.1 (ff)(4).
Petitioner also challenges a statement by the hearing officer that the child has a neuro-muscular degenerative disease. Petitioner asserts that there is no evidence that the disease is degenerative. The hearing officer cited the child's psychological evaluation as the basis for the remark. I note that respondent's psychiatrist reported that the child had a history of a neuro-degenerative disorder. However, neither the psychological evaluation nor the psychiatric evaluation documents the basis for finding that the disease is degenerative. Petitioner asserts that metabolic testing of the child at John Hopkins University in 1986 revealed no concrete evidence of degenerative disease, but has no copy of such testing results. In any event, I find that whether or not the child's neuro-muscular disorder is degenerative is not significant for purposes of determining an appropriate placement for the 1991-92 school year.
The central issue in this appeal is whether the placement recommended by the CSE is appropriate for the child. It is well settled that the 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 US 176; Karl v. Board of Education Geneseo Central School District and Ambach, 736 F. 2d 873), and whether the program offers appropriate opportunities to meet the annual goals of the child's IEP (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 83; Application of a Child with a Handicapping Condition, 29 id. 339).
An appropriate program begins with an IEP which accurately reflects the findings of a child's evaluation (Matter of Handicapped Child, 23 Ed. Dept. Rep. 386), and which considers the child's present levels of development and individual needs (8 NYCRR 200.4 [c]). An IEP must also set forth specific goals for the child which address the various components of the child's handicapping condition (Matter of Handicapped Child, 25 Ed. Dept. Rep. 17; Matter of Handicapped Child, 25 id. 112). I find that the child's IEP drafted at the May 17 and May 22 meetings of the CSE accurately reflects the findings of the child's evaluations and sets forth his present levels of development and individual needs. The IEP goals relate to improving the child's ability to crawl, to grasp, to visually focus, to auditorily focus and to develop an awareness of his environment and to respond to his environment. These goals are appropriate to the child's needs, and are consistent with the IEP goals for the child during the 1990-91 school year at the IAHD. In a February, 1991 report, the IAHD revealed that it was attempting to teach the child to hold and manipulate objects, with hand over hand assistance and verbal prompts, and to improve his auditory tracking skills through musical activities and adaptive toys. The child's visual tracking skills were being strengthened through the use of adaptive toys and the presentation of food to the child. The IAHD further reported that the child demonstrated some awareness of his environment by smiling and laughing when school staff initiated interaction with the child.
The record reveals that the child's IEP can be successfully implemented in the recommended class of P.S. 10. At the hearing, an assistant principal for P.S. 10 testified that the recommended class is one of ten classrooms located on the first floor of P.S. 186, which is a barrier-free building. The assistant principal further testified that all of the children in the program are profoundly retarded, and that some are ambulatory while others are not. All children receive speech therapy, physical therapy and occupational therapy, which are provided in the classrooms with interaction between teachers and therapists to ensure consistency and carryover. All children receive adaptive physical education. The assistant principal described the instructional program as being focused upon life skills, with an emphasis on self-help and daily living skills, developing an awareness of the community through trips into the community, developing leisure skills like singing, and developing very basic vocational skills to prepare children for vocational education at the secondary school level.
The assistant principal testified that the proposed class for the child would be taught by an experienced special education teacher assisted by at least three aides. A health services aide is also assigned for each five children, thereby increasing the number of adults in the classroom to five. There were five children in addition to petitioner's child for this class. None of the children has academic skills. All five children are in wheel chairs, as is petitioner's child. The assistant principal further testified that the teachers and aides eat breakfast and lunch with the children, as part of the instructional program. The IAHD, in its progress report, stated that its staff was instructing the child in eating and drinking, as activities for daily living and as an activity to develop the child's visual recognition of food. The assistant principal further testifies that instruction in the recommended class is primarily verbal, although some signing is also used. In its April 26, 1991 report, the IAHD stated that the child seems to understand simple oral instructions. I find that the child would be appropriately grouped academically, physically, and for purposes of management with the children in the proposed class.
At the hearing, petitioner expressed concern about the possibility that the child could have seizures while attending school and the ability of the school personnel to deal appropriately with his seizures. The assistant principal testified that almost all of the children in P.S. 10 have a history of seizures, and that the school is organized to respond quickly and efficiently in the event a child has a seizure. There are two nurses on duty who can be summoned quickly to a classroom. The teachers have been trained to time the duration of seizures, and to call for a nearby ambulance to transport children to the Lincoln Hospital which is also close to P.S. 10, in the event a child has a seizure in excess of three minutes.
Petitioner asserts that the IAHD is the appropriate placement for her child, based upon the services being provided by the IAHD to accelerate the child's reflex reaction, to address his orthopedic and feeding deficits. However, the record reveals that the program offered at P.S. 10 is comparable to that of IAHD, and would meet the child's needs. In any event, respondent's obligation is to provide an appropriate program, rather than match the program of a private school preferred by a parent (Matter of a Handicapped Child, 26 Ed. Dept. Rep. 188). Petitioner's primary objection to the placement recommended by the CSE is that she is concerned about the effect a change in placement might have upon her child, particularly in view of his history of having seizures. In support of her position, petitioner relies upon a brief letter, dated June 27, 1991, from the child's neurologist at the Lincoln Medical and Mental Health Center, who stated that he did not think a change of schools would be beneficial because the child was still adjusting to IAHD. The neurologist did not explain the basis for his statement that the child was still adjusting to the IAHD, or what, if any, effect a change of placement might have upon the child. In her petition, petitioner asserts that the child was hospitalized in November, 1990, after starting at the IAHD and being bused to school for the first time in his life. However, petitioner further asserts that the child was hospitalized because of pneumonia. Although the child was hospitalized in June, 1991 as the result of seizures, petitioner asserts that the cause of the seizures is unknown.
Upon the record before me, I am unable to find that the child would be more likely to have seizures if placed in P.S. 10 than if he remained at the IAHD. I have considered the testimony the IAHD's educational director and the reports of the school as to the child's awareness of the staff who have interacted with him. Although I have concluded that there is no basis to find that the recommended placement is inappropriate merely because it is a change from the child's present placement, it is apparent that the CSE should devise and carefully implement a transition program. Such program should be developed in cooperation with the staff of the IAHD so that the child becomes familiar with the staff and the setting of the class at P.S. 10 before being enrolled on a full-time basis in such class (Application of a Handicapped Child, 22 Ed. Dept. Rep. 339).
THE APPEAL IS DISMISSED.
|Dated:||Albany, New York||__________________________|
|November 26 , 1991||HENRY A. FERNANDEZ|