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The State Education Department
State Review Officer

No. 92-1

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 provided by the Peru Central School District

Appearances:

North Country Legal Services, Inc., attorney for petitioners, Stephen Baker, Esq., of counsel

Mary Anne Bukolt, Esq., attorney for respondent

DECISION

Petitioners appeal from the determination of an impartial hearing officer upholding the recommendation of respondent's committee on special education (CSE) that the placement of petitioners' child be changed for the 1991-92 school year from a special education class at respondent's Northside Elementary School to an out-of-district special education class operated by the Board of Cooperative Educational Services of Clinton, Essex, Warren and Washington Counties (BOCES). Respondent cross-appeals from the hearing officer's determination annulling the CSE's recommendation that the child's classification be changed from speech impaired to emotionally disturbed, and ordering respondent to pay for the cost of an independent speech evaluation of the child which petitioners obtained. The appeal must be sustained in part, and the cross-appeal must be dismissed.

Petitioners' child, who is seven years old, was initially evaluated at two and one-half years of age for entry into an early childhood program. He was admitted to that program because his speech was delayed. He was subsequently evaluated by the BOCES in May, 1987, in order to participate in a BOCES preschool program. The BOCES speech evaluator found that the child had severe delays in overall language comprehension skills and expressive language skills, with severely impaired articulation skills. The child participated in the BOCES preschool program for the 1987-88 and 1988-89 school years.

On July 13, 1989, the CSE recommended that the child be classified as speech impaired and that he be enrolled in a language-based special education class of no more than 12 children, a teacher and an aide, located at the Northside Elementary School. With the exception of the period from October, 1990 through December, 1990 when he was enrolled on a trial basis in a regular education kindergarten at this parents' request, and an erroneous placement in another special education class for four days at the beginning of the 1991-92 school year, the child has remained in the class which the CSE recommended upon the child's entrance into respondent's schools. Petitioners did not challenge the CSE's recommendation to end the child's placement in regular kindergarten. The child has received the related service of speech therapy each year, and for most of the time he has also received counseling.

In March, 1991, the child's special education teacher asked the CSE to consider a change in the child's placement to a class with a child-adult ratio of 6:1+1, because of the child's increasing management needs. An individualized education program (IEP) dated April 3, 1991 was prepared by the CSE and provided that the child would be enrolled on a twelve-month basis in a BOCES 6:1+1 class for the 1991-92 school year. However, the CSE did not meet on April 3, 1991. In May, 1991, the CSE met, but deferred making any recommendation as to the child's program or placement until it could obtain a psychiatric evaluation of the child, which was performed on May 23, 1991. The psychiatrist diagnosed the child as displaying moderate to severe oppositional behavior, a mild attention deficit and an anxiety disorder. The psychiatrist recommended that the child be enrolled in a 6:1+1 class, to address his emotional and academic needs, and that the child and his family receive psychotherapy. On August 14, 1991, the CSE recommended that the child's classification be changed from speech impaired to emotionally disturbed, and that his placement be changed from a 12:1+1 class in the district to a 6:1+1 BOCES class on a twelve-month basis. The CSE also recommended that the child be mainstreamed for art, library, music and physical education. The CSE further recommended that the child receive speech therapy daily, and counseling twice each week, and that parent counseling be provided twice each month.

On September 5, 1991, petitioners asked for an impartial hearing on the issues of the child's classification, program and placement, as well as respondent's obligation to pay for an independent evaluation of the child which petitioners had requested on July 18, 1991. The hearing was held on November 5 and 6, 1991. By decision dated November 22, 1991, the hearing officer held that respondent had failed to meet its burden of proof concerning the appropriateness of the recommended change in the child's classification. The hearing officer found that the child's IEP for the 1991-92 school year was defective in certain details, and in failing to explain the nature of a behavior modification plan for the child and in failing to link the child's annual goals with his intensive management needs. However, the hearing officer further found that the severity of the child's management needs afforded an ample basis for the CSE's recommendation of a 6:1+1 class, and rejected petitioners' assertion that such class would not be the least restrictive environment for the child. The hearing officer directed respondent to pay for the cost of an independent speech evaluation of the child, on the ground that respondent failed to either agree to pay for such evaluation or to initiate a hearing on a timely basis for the purpose of demonstrating the appropriateness of its own evaluations.

As a procedural matter, respondent objects to Exhibit C annexed to the petition, which is a letter dated December 19, 1991 from respondent's director of special education to petitioners' attorney. The letter explains the district's disciplinary policy for its special education children, and is accompanied by a behavior management plan for petitioners' child which was to be implemented on December 30, 1991 and to remain in effect during his pendency placement. The general disciplinary policy of the district was not raised as an issue before the hearing officer. Neither document is necessary in order for me to decide the issues presented in this appeal, and have not been considered in rendering my decision.

The first substantive issue to be addressed is the child's classification. Respondent asserts that the hearing officer erred in finding that the child should be classified as speech impaired, rather than as emotionally disturbed, because the hearing officer erroneously concluded that the criteria set forth in the regulatory definition of emotionally disturbed had not been met. State regulation defines an emotionally disturbed child as:

"A pupil with an inability to learn which cannot be explained by intellectual, sensory or health factors and who exhibits one or more of the following characteristics over a long period of time and to a marked degree:

(i) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers;

(ii) inappropriate types of behavior or feelings under normal circumstances;

(iii) a generally pervasive mood of unhappiness or depression; or

(iv) a tendency to develop physical symptoms or fears associated with personal or school problems.

The term does not include socially maladjusted pupils unless it is determined that they are emotionally disturbed." (8 NYCRR 200.1 [ff][2])

The hearing officer found that respondent had not demonstrated that the child had exhibited the characteristics of emotional disturbance over a long period of time, noting that the primary basis for finding that the child had exhibited those characteristics was the testimony of the child's teacher, who maintained a daily log of the child's behavior in school from March, 1991 through the date of the hearing. The teacher recorded instances of the child's alleged physical and verbal aggression and other inappropriate behavior. However, the teacher's testimony and the child's report card for the second quarter of the 1991-92 school year reveal that the child's behavior has improved. Respondent also relies upon the testimony of its school psychologist who testified that the child had exhibited oppositional behavior in the BOCES preschool program. However, the school psychologist had no personal knowledge of the child's behavior in the BOCES preschool program.

Respondent asserts that the evaluation by, and testimony of, its consultant psychiatrist afford a basis for concluding that the child is emotionally disturbed. I disagree. In her evaluation, the psychiatrist expressed a medical opinion based in large part upon a reasonably brief interview of the child during which she and the child had great difficulty communicating with each other. Although the psychiatrist diagnosed the child as having an oppositional defiant disorder, an attention deficit hyperactivity disorder and an anxiety disorder, the psychiatrist also stated: "I am impressed with [the child's] speech and language delays and I feel, primarily, these are responsible for his acting out behavior." At the hearing, the psychiatrist urged that the child's speech impairment and emotional difficulties be addressed, but did not disavow her earlier conclusion that the child's behavioral problems were caused primarily by his speech impairment.

The record clearly established that the child has a severe speech impairment. Respondent's speech therapist testified that the child's language deficits interfered with his ability to acquire academic skills. In an evaluation report dated June 10, 1991, respondent's speech therapist stated that the child continued to demonstrate severe deficits in most components of language. The speech therapist testified at the hearing that the child met the criteria for classification as a speech impaired child under the definition set forth in state regulation. The individual who performed an independent evaluation of the child's speech also testified that the child had pervasive difficulty with knowing how sounds are made and how they are combined into meaningful units. The independent evaluator opined that the child has a "significant speech and language disorder best characterized by extremely deficient phonology-morphology-syntax." At the hearing, the independent evaluator testified that the child should be classified as speech impaired, in accordance with the state regulatory definition:

"A pupil with a communication disorder, such as stuttering, impaired articulation, a language impairment or a voice impairment, which adversely affects a child's educational performance." (8 NYCRR 200.1 [ff][7])

I find that the record amply supports the hearing officer's conclusion that the child's primary handicapping condition is a speech impairment. There is no reason to designate a secondary handicapping condition, because the child should be provided with all necessary special education programs and services as the result of being classified as speech impaired (Application of Child with a Handicapping Condition, 30 Ed. Dept. Rep. 41).

With regard to an appropriate placement for the child, petitioners assert that the child should enter a regular education program, with adequate supportive services to address his speech and emotional needs. They further assert that such a program is the least restrictive environment for the child. Respondent asserts that the hearing officer correctly found that the child's extensive management needs cannot be met, unless the child is enrolled in a special education program which can provide primary instruction in a class with a 6:1+1 child-adult ratio.

Respondent bears the burden of establishing the appropriateness of the program and placement which its CSE has recommended (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Matter of Handicapped Child, 23 id. 415; Matter of Handicapped Child, 25 id. 353). In satisfying its burden, respondent must show that the program or placement is reasonably calculated to ensure the child to receive educational benefits (Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176), and that program or placement is the least restrictive environment for the child (34 CFR 300.550 [b] and 8 NYCRR 200.6 [a][1]).

An appropriate program begins with an IEP which accurately reflects the findings of a child's evaluations in identifying the child's needs, provides for the use of appropriate special education services to address the child's needs and established annual goals which are related to the remediation of the child's educational deficits. The child's IEP adequately described the child's social and physical development and discussed some of his management needs. The IEP does not address the child's academic skill levels in any area, except mathematical concepts. The IEP also does not accurately reflect this child's language limitations and his related needs in the classroom. As the hearing officer noted, the IEP is deficient in that it does not adequately describe a behavior modification program for the child. It is apparent that a school psychologist must be more actively involved with the CSE in preparing a behavior management program, and implementing the program through counseling of the child and consultation with his teacher. The hearing officer was also correct in finding an insufficient nexus between the general goals set forth in the IEP and the child's management needs. However, I further find that the general goals, which would be appropriate for any elementary school child, do not reflect the child's need to learn to use language appropriately for several purposes. Some 30 day instructional objectives in the IEP would be more appropriately set forth as annual goals. Although the goals and objectives for the child's speech therapy were generally appropriate for the child, they should be reconsidered in light of the recommendation of the independent evaluator that the child's language needs should be addressed throughout the content areas of the entire curriculum. Although the IEP reveals that the child's parents will receive counseling, respondent's director of special education, in her notice of the CSE's recommendation and her testimony at the hearing, stated that the parents would receive education as well as counseling. The IEP should reflect the provision of parent education and counseling.

Once the CSE has prepared an appropriate IEP, it may then consider where the child should be placed (34 CFR 300.552 [a][2]). The child's management needs will obviously be an important consideration in determining what would be an appropriate program. The child's classroom teacher and his speech therapist testified that the child worked well on a 1:1 basis with adults, and was generally manageable in small groups of children unless he became frustrated with a task. The classroom teacher developed a behavior management program for the child during the latter portion of the 1990-91 school year. The teacher testified that, as of the time the hearing was held, she could control his behavior in her 12:1+1 class, but had not been as successful in controlling the child's behavior in more unstructured situations, such as lunch, recess and in hallways. However, the teacher further testified that she and her classroom aide had to devote a significant amount of time to the management of the child. When asked why she had recommended that the child be placed in a 6:1+1 class, which does not exist within the district but is available at the BOCES, the teacher testified that the child could have the benefit of a time-out room and a psychologist on call for counseling and intervention at the BOCES. The teacher testified that the child could not obtain counseling by a psychologist and have the use of an appropriate time-out facility, if he remained in respondent's schools. The teacher also testified that more direct involvement of a psychologist in the education of the child through counseling of the child and consultation on a regular basis with the child's teachers would be appropriate.

In the absence of evidence that the child could not succeed in a special education environment less restrictive than that of the recommended 6:1+1 class, if an appropriate behavior management plan were implemented with adequate counseling by a psychologist, I find that respondent has failed to demonstrate the appropriateness of a 6:1+1 class for the child. Although petitioners urge that I find that the child should receive his primary instruction in a regular education class, with appropriate special education services, I cannot do so based upon the facts in the record before me. The child has a severe speech impairment which must be addressed by his speech therapist and a special education teacher working closely together in a smaller than normal class. It is also apparent that the child's management needs at the present time preclude his enrollment in a regular education program on a full-time basis. He should have the opportunity to be exposed to non-handicapped peers, both as a matter of least restrictive environment and to afford the child an opportunity to model his speech after that of his non-handicapped peers. However, the child can have interaction with non-handicapped peers if he is mainstreamed for instruction in special subjects, as recommended by the CSE.

With regard to respondent's obligation to pay for the cost of an independent evaluation, I find that the hearing officer correctly held that respondent should pay. The parent of a disabled child is entitled to obtain an independent educational evaluation at public expense, ... "if the parent disagrees with the evaluation obtained by the school district" (8 NYCRR 200.5 [a][1][vi][a]). The parent's right to obtain an evaluation at public expense is subject to the right of a board of education to initiate an impartial hearing to demonstrate the appropriateness of its own evaluation. If a hearing officer determines that the board's evaluation is appropriate, the parent may obtain an independent evaluation, but not at public expense (34 CFR 300.503; 8 NYCRR 200.5 [a][1][vi][a]).

The record reveals that petitioners' attorney advised respondent on July 18, 1991 of petitioners' intention to obtain an independent speech evaluation of the child at public expense. Although the U.S. Department of Education has opined that there is no specific time limit within which a board of education must initiate a hearing (16 EHLR 1080), the board must not unduly delay its decision to initiate a hearing (Application of Child with a Handicapping Condition, Appeal No. 90-1). In this instance, the parents initiated a hearing from respondent's failure to either agree to pay for the independent evaluation or to initiate a hearing, which was an appropriate remedy (16 EHLR 1080). The hearing officer did not reach the issue of whether the school district's evaluation was appropriate. Instead, he inferred that respondent had not intended to initiate a hearing on the issue of petitioners' request for an independent evaluation. While I agree with the result which the hearing officer reached, I do so for reasons other than those of the hearing officer.

Respondent asserts that the results of its evaluations are comparable to those of the independent evaluation, which was performed on October 22, 1991. However, respondent relies primarily upon the results of tests which its speech therapist administered in September and October, 1991 after the CSE had recommended a change of classification and placement, and after petitioner had requested a hearing on the issue of an independent evaluation. The test results reported in both the independent evaluation and the evaluation performed by respondent's speech therapist are similar. Nonetheless, I find that the independent evaluation was superior in that it provided necessary information not contained in respondent's evaluation, such as an explanation of the skills tested and functional program recommendations. The independent evaluation included a discussion of the grammatical limitations and errors in the child's spontaneous language, which would assist the child's classroom teacher in understanding the child's language needs with regard to verb tenses, prepositions and conjunctions. It included a recommendation that the child should be instructed in language usage as an integrated and ongoing part of his education, using spontaneous language in the classroom. The independent evaluation identified particular structured deficits in the child's language which should be addressed, and the recommendation that he receive daily assistance with syntax. The independent evaluation further provided suggestions for improving the child's limited ability to put ideas in sequence in order to tell stories, and for improving the child's understanding of the structure of language which would assist him in reading decoding. Accordingly, I find that petitioners are entitled to be reimbursed for the cost of the independent speech evaluation which they obtained.

Finally, petitioners assert that the hearing officer erred in denying their attorney's request at the conclusion of the hearing for an opportunity to submit proposed findings of fact and rulings of law. Neither the Federal nor State regulations pertaining to impartial hearings expressly accords the parties the right to submit proposed findings of fact and rulings of law. However each party does have the right to present evidence and argument (34 CFR 300.508 [2]; 8 NYCRR 200.5 [c][8]). In this instance, petitioners' attorney clarified his request to the hearing officer, by stating that he wished to submit a post-hearing memorandum of law. The hearing officer denied the request, relying on his interpretation of my decision in Appeal No. 90-16. In that decision, I held that it was error for a hearing officer to obtain additional evidence outside the record of the hearing. However, documents, submitted on notice to the other party and included in the record and the decision of the hearing officer, are indeed permissible. Moreover, a post-hearing memorandum of law is not evidence. Consequently, a hearing officer may permit parties to submit, on notice to each other with appropriate proof of service, post-hearing memoranda of law or proposed findings by the hearing officer, so long as the decision of the hearing officer is not unnecessarily delayed.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the decision of the hearing officer, to the extent that it found that the child would be appropriately placed in a 6:1+1 class be, and the same hereby is, annulled; and

IT IS FURTHER ORDERED that within 30 days after the date of this decision, respondent's CSE shall prepare a new IEP for the child and recommend to respondent a program for the child consistent with the tenor of this decision.

Dated:

Albany, New York

 

__________________________

 

March 26, 1992

 

HENRY A. FERNANDEZ