The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the educational program provided by the Board of Education of the Duanesburg Central School District
Whiteman, Osterman and Hanna, Esqs., attorneys for respondent,
Kenneth S. Ritzenberg, Esq., of Counsel
Petitioners appeal from the decision of an impartial hearing officer which upheld the validity of the process by which their child's individualized education programs (IEPs) for the 1992-93 and 1993-94 school years had been prepared, as well as the contents of such IEPs, and which directed that the child be psychiatrically evaluated. In its answer respondent cross-appeals from the hearing officer's finding that respondent failed to meet its burden of proving the appropriateness of the child's placement for the 1992-93 school year and proposed placement for the 1993-94 school year, and from the hearing officer's denial of respondent's motion to preclude the introduction of evidence concerning the etiology of the child's disabilities on the ground of collateral estoppel. The appeal must be dismissed, and the cross-appeal must be sustained in part.
Petitioners' child, who is eight years old, has been classified as multiply disabled. His classification, to which the parties agreed in a stipulation in a prior proceeding, has not been explicitly challenged by petitioners in either the hearing in this proceeding or in this appeal. Accordingly, I do not reach the issue of the child's classification (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D.N.Y., 1987]). In September, 1990, the child briefly attended respondent's kindergarten, but thereafter received tutoring at home. In April, 1991, the child, with the agreement of the petitioners was placed in the Wildwood School, which is a State-approved private school for the instruction of children with disabilities. In the Fall of 1991, a dispute arose between the parties concerning a refusal by respondent's committee on special education (CSE) to recommend that the child be declassified for the 1991-92 school year and that he be placed in a regular education first grade class for the 1992-93 school year.
A lengthy hearing was conducted in 1992 to consider a number of issues raised by petitioners. However, much of the hearing involved petitioners' assertion that the child should not be classified as a child with a disability, because there was medical evidence demonstrating that the child had "environment sensitivities", i.e., allergies and an over growth of yeast, which had caused the child's extensive behavioral and developmental deficits. In August, 1992, the hearing officer in that proceeding held that the child was appropriately classified as multiply disabled, and that there was insufficient evidence in the record to support petitioners' claim of a connection between the child's allergies and his behavior. However, the hearing officer directed the parties to have the child undergo medical and psychological evaluations to ascertain the possible impact of the child's allergies upon his educational performance. The hearing officer in that proceeding further held that the child should remain in the Wildwood School.
Petitioners appealed from the hearing officer's determination. In Application of a Child with a Handicapping Condition, Appeal No. 92-37, dated November 13, 1992, petitioners' assertions of procedural violations by the CSE before the hearing and their other assertions regarding the manner in which the hearing had been conducted were found to be without merit. The record in that appeal established that the child had been adequately evaluated in the Fall of 1990, and that there was an adequate basis for the child's classification as multiply disabled, notwithstanding petitioners' assertion that there was medical evidence to the contrary. Indeed, the record failed to demonstrate any nexus between the child's allergies and his educational deficits. In view of petitioners' request that the child's placement be changed, I held that it was appropriate for the CSE to obtain further evaluations of the child, as directed by the hearing officer. The issue of the child's placement during the 1992-93 school year was not reached, because the child had not been evaluated and because there was no recommendation by the CSE for that school year in the record.
The child continued to attend the Wildwood School during the 1992-93 school year. At petitioners' request, the CSE met on October 2, 1992, to prepare an IEP for the 1992-93 school year. The CSE recommended that the child remain classified as multiply disabled and continue to attend the Wildwood School. The CSE further recommended that the child receive small group and "milieu" counseling, individual and small group speech/language therapy, music therapy and occupational therapy. A note on the child's IEP revealed that petitioners declined the CSE's offer to provide occupational therapy. The child's IEP also provided for family counseling, as recommended by the hearing officer.
By letter dated October 30, 1992, petitioners advised the CSE chairperson of their disagreement with various provisions of the child's IEP for the 1992-93 school year. However, they did not request that an impartial hearing be held to review the appropriateness of the IEP. In a subsequent letter to respondent dated November 17, 1992, petitioners requested an "Informal Hearing" to review the appropriateness of the child's IEP and his placement in the Wildwood School. Respondent's attorney replied to petitioners by suggesting that they contact the CSE if they wished to have a meeting with the CSE, and asserted that a request for an impartial hearing was premature, because the child had not been medically and psychologically evaluated as directed by the hearing officer.
A medical evaluation of the child by an allergist was scheduled to be conducted on January 4, 1993. On that date, the child's father met with the allergist selected by respondent to perform the evaluation, and provided the allergist with documents prepared by various physicians who had treated the child. However, the child was not seen by the allergist, because petitioners were reportedly concerned about the possibility of the child's exposure to substances to which he was allergic.
In a report dated January 8, 1993, the allergist stated that the documents which he had reviewed revealed that the child had demonstrated reactivity to dust, dust mites, household insects, cat, dog, mold and pollens. The allergist described the symptoms of such allergies as being very similar to having a chronic head cold. He opined that such symptoms could indirectly contribute to the child's lack of attention and irritability, and that the medications used to treat the allergies could also provoke irritability. While noting that the child had been reported to have reacted to milk, the allergist asserted that a relationship between reactions to foods and behavioral problems had not been clearly established by scientific tests. The allergist opined that the child had allergic rhinitis, for which he should receive the standard medical treatment, but recommended that the child be psychologically evaluated to ascertain the basis for his behavioral problems.
Petitioners initially expressed opposition to having the child psychologically evaluated, but eventually agreed to have the child evaluated at the Wildwood School by a BOCES school psychologist. The allergist's report and the proposed psychological evaluation were discussed with petitioners at a meeting of the CSE held on January 21, 1993. By letter to respondent dated February 4, 1993, petitioners requested that an impartial hearing be held because of their disagreement with portions of the minutes of the CSE's meeting of January 21, 1993.
On February 10, 1993, a BOCES school psychologist, who had observed the child in his classroom on December 10, 1992, began a psycho-educational evaluation of the child. The child was reportedly restless and unresponsive to the psychologist's attempts to redirect him. He also reportedly engaged in self-stimulatory behavior. The school psychologist was unable to complete all of the tests, despite assistance from the director of the Wildwood School and the CSE chairperson in managing the child's behavior. The evaluation was completed on February 25, 1993, with the assistance of the child's teacher, who successfully redirected the child to the tasks required during the evaluation. On that day, the school psychologist re-administered portions of the tests which had been administered to the child on February 10, 1993, and administered other tests. In a report dated March 1, 1993, the school psychologist reported that the child exhibited age appropriate classification and abstract visual spatial reasoning skills, but that his other cognitive skills were approximately one year below his age level. The school psychologist further reported that the child demonstrated that he had significant language processing deficits. Notwithstanding the significant difference between the child's behavior on the first day of tests and his behavior on the second day of tests, his performance on the tests reportedly did not appreciably differ on either day. Although the child's sight word vocabulary and decoding skills were at the third grade level, his reading comprehension was reported to be at the beginning first grade level. His mathematic skills were reported to be at an early first grade level. The school psychologist opined that the child exhibited a deficit in sequencing and a limited ability to define words abstractly. The psychologist reported that the child had a serious deficit in handling tasks which involved social reasoning. The school psychologist further reported that the child exhibited behavior and emotional reactions which were inappropriate for a child of his age, including a very high level of activity, a very short attention span, labile moods, extreme rage reactions, ritualistic behavior, and the use of inappropriate language. The school psychologist opined that the child was emotionally disturbed, and exhibited symptoms which were comparable to those of persons with a Childhood Onset Pervasive Developmental Disorder. The school psychologist recommended that the child be psychiatrically evaluated and that he receive a speech/language evaluation, and that family counseling be provided. With regard to the child's placement, the school psychologist recommended that the child remain in the Wildwood School. At a meeting of the CSE held on March 10, 1993, the child's IEP for the 1992-93 school year was revised to reflect the results of the psycho-educational evaluation.
In late February, respondent appointed a hearing officer to conduct a hearing. However, petitioners objected to having the hearing officer conduct the hearing because the individual selected by respondent was allegedly not impartial. Respondent subsequently appointed another hearing officer. By letter dated March 15, 1993, petitioners requested an independent evaluation for the child. Respondent's superintendent advised petitioners that respondent would pay for the requested evaluation, provided that petitioners agreed to the postponement of the hearing which they had requested (cf. 8 NYCRR 200.5 [a]  [vi]). However, petitioners did not agree to a postponement of the hearing.
On April 28, 1993, the CSE conducted its annual review, at which the child's IEP for the 1993-94 school year was prepared. The CSE recommended that the child continue to be classified as multiply disabled, and that he remain in the Wildwood School in a class with a child to adult ratio of 12:1+4. The CSE further recommended that the child receive individual speech/language therapy three times per week, group speech/language therapy twice per week, individual and group counseling each once per week and group music therapy twice per week, individual music therapy once per week, and family counseling three or four times per month. In addition, the CSE recommended that an air purifier be provided in the child's classroom. At the request of the Wildwood School, the child's IEP for the 1993-94 school year was amended by the CSE on June 3, 1993, to provide that the child should be removed from class during cooking activities, on an as needed basis. As originally drafted, the IEP had provided that the child would be removed from class during such activities, without exception.
The hearing commenced on May 4, 1993, and was held on 18 more days, ending on July 22, 1993. At the hearing, petitioners raised the issues of the appropriateness of the evaluations conducted by respondent, the appropriateness of the child's IEP for the 1992-93 school year, and the appropriateness of the child's placement and program for that school year. During the course of the hearing, the CSE prepared the child's IEP for the 1993-94 school year. The parties agreed that the hearing officer should also address the appropriateness of the child's IEP and placement for the 1993-94 school year. In a decision dated September 3, 1993, the hearing officer noted that although the child's classification was not contested, petitioners had nevertheless attempted to establish a connection between deficits in the child's academic performance and behavior and a possible reaction to irritants in the environment. The hearing officer found that the evidence proffered by petitioners established that the child was allergic to certain things in his environment, but had not demonstrated that the child's academic and behavioral deficits were attributable solely to his environmental sensitivities. The hearing officer also found that petitioners had been afforded ample opportunity to participate in the preparation of the child's IEPs and that the content of the child's IEPs was consistent with the requirements of Federal and State laws. However, the hearing officer further found that respondent had failed to demonstrate that the child's placement for the 1992-93 school year and proposed placement for the 1993-94 school year in the Wildwood School were in the least restrictive environment, or afforded the child an opportunity to be educated with other children having similar abilities and needs. The hearing officer directed the CSE to consider whether the child should be placed in a BOCES Primary Management Intervention Program, and directed the CSE to arrange for a psychiatric evaluation of the child.
As an affirmative defense, respondent asserts that the appeal should be dismissed because petitioners allegedly failed to properly serve their notice of intention to seek review upon respondent. State regulations require that a notice of intention must be personally served upon the board of education, the district clerk or chief school officer (8 NYCRR 278.8; 8 NYCRR 279.2). In an affidavit, the chairperson asserts that she was informed that petitioners' notice of intention was mailed to respondent's attorney. In their reply, petitioners admit serving their notice of intention by mail upon respondent's attorney. Although petitioners' service was clearly defective because it was not personal service and because the school attorney is not one of the persons enumerated in the regulation, I find that there is no evidence in the record that any representative of respondent advised petitioners of their error, nor is there any evidence that respondent has been prejudiced by the error. Therefore, I will not dismiss the appeal (Application of a Child with a Disability, Appeal No. 93-7).
Petitioners, who were not represented by an attorney at the hearing, assert that the hearing officer's decision should be annulled because the hearing was procedurally flawed for three reasons. First, they assert that they were "subjected to geographical discrimination" because respondent was represented by an attorney at the hearing, while in at least one other school district both parties allegedly appear without counsel. I find that petitioners' assertion is without merit. Federal and State Regulations accord each party in a hearing the right to be represented by counsel (34 CFR 300.508[a]; 8 NYCRR 200.5[c]). Therefore, respondent had the right to be represented at the hearing by an attorney.
Petitioners further assert that the hearing officer erred in conducting the hearing as a "judicial proceeding" rather than an administrative hearing. In support of their assertion, petitioners refer to a single ruling made by the hearing officer on an objection raised by petitioners during the cross-examination of a witness by respondent's attorney. I find that there is no basis for overturning the hearing officer's ruling. Indeed, a review of the record reveals that the hearing officer accorded petitioners considerable latitude during the hearing in his evidentiary rulings. The record in this proceeding includes more than 3200 pages of transcript and more than 100 exhibits, approximately 1/2 of which were introduced by petitioners.
Petitioners further assert that the hearing officer erred by improperly allowing issues related to school years prior to the 1992-93 school year to be raised in the hearing. Petitioners specifically refer to the cross-examination of the child's father about three requests for impartial hearings which he had made in 1990, 1991, and 1992, which the hearing officer permitted over petitioners' objection. The hearing officer ruled that the questions asked in the cross-examination were proper to establish the intended purpose of petitioners' request on November 17, 1992 for an "informal hearing." I find that the hearing officer did not abuse his discretion in permitting the questions to be asked. Ultimately, the hearing officer determined that the issue of the intended purpose of petitioners' November 17, 1992 request had become moot because of their subsequent requests for impartial hearings which raised the same questions about the child's IEP and program as had the November 17, 1992 request. Although petitioners have not explicitly challenged the hearing officer's determination of this issue, I do not agree that the issue of whether respondent complied with the Federal and State requirements for timely hearing decisions (34 CFR-300.512 [a]; 8 NYCRR 200.5 [c] ) became moot because petitioners made subsequent requests for a hearing. However, I find that petitioners' inexplicable failure to respond either orally or in writing to respondent's request for a clarification of petitioners' request for an informal hearing contributed to the delay in scheduling an impartial hearing.
Petitioners assert that they were denied the right to actively participate in the development of the child's IEP's for the 1992-93 and 1993-94 school years. Federal and State regulations require that a child's IEP be prepared by a CSE, with the participation of the child's parents (34 CFR 300.415[a]; 8 NYCRR 200.4[c]). The official interpretation of the Federal regulations provides, in material part, that:
"The IEP meeting serves as a communication vehicle between parents and school personnel, and enables them, as equal participants, to jointly decide what the child's needs are, what services will be provided to meet those needs, and what the anticipated outcomes may be." (34 CFR 300, Appendix C, 1.a Purpose of the IEP).
A CSE must afford the parents a meaningful opportunity to interact with the CSE, but it is not obligated to accede to the parents' wishes with respect to each provision of an IEP (Application of a Child with a Handicapping Condition, Appeal No. 91-13; Application of a Child with a Handicapping Condition, Appeal No. 92-47). The record reveals that at least one of the petitioners met with the staff of the Wildwood School on October 1, 1992 to discuss the recommendations which the staff intended to make to the CSE for the child's 1992-93 IEP. On October 2, 1992, one of the petitioners met with the CSE to review the recommendations by the Wildwood staff, including the child's teacher who was present at the CSE meeting. Those recommendations were provided in the form of a draft IEP. A draft IEP may be used by a CSE to discuss a child's needs and the proposed services to meet those needs, provided that the CSE makes it clear to the parent that the draft IEP is for discussion purposes (Application of a Child with a Handicapping Condition, Appeal No. 90-13). The CSE chair testified that certain changes in the child's draft IEP were made at the request of petitioners and that petitioners also participated in subsequent CSE meetings held on January 21, 1993 and March 10, 1993, with regard to the 1992-93 IEP. The CSE chairperson further testified that a draft IEP for the 1993-94 school year which the Wildwood staff had prepared was discussed with petitioners at a meeting of the CSE held on April 28, 1993. At the hearing in this proceeding, the child's father testified that the IEP was reviewed in his presence at the CSE meeting of April 28, 1993. On the record before me, I find that petitioners were accorded the right to fully participate in the development of the child's IEPs for the 1992-93 and 1993-94 school years.
Petitioners assert that the psycho-educational evaluation of the child which the CSE obtained from the BOCES school psychologist was inappropriate, in that the school psychologist did not observe the child, did not use alternative test techniques, did not validate the test techniques, did not describe the test techniques in the child's IEP, and did not conform to the test procedures set forth in the child's IEP. Although neither Federal nor State regulation prescribes the content of a psychological or an educational evaluation to include an observation of the child, State regulation does require that an individual evaluation of each child referred to a CSE include an observation of the child in the child's current educational setting (8 NYCRR 200.4 [b]  [viii]). Petitioners' child had previously been referred to the CSE. The evaluation conducted by the BOCES school psychologist was pursuant to the hearing officer's decision in the prior hearing. I find that the regulatory provision did not apply to the child's evaluation. However, even if the regulatory provision applied to the evaluation in question, I find that the school psychologist's observation of the child in his class for approximately 90 minutes on December 10, 1992 was adequate. Petitioners do not specify what they intend by the use of the terms "alternative test techniques", but they are apparently referring to the testing modifications used in the child's educational program which are to be listed in the child's IEP (8 NYCRR 200.4 [c]  [viii]). The child's IEP provides for various test techniques, including extended time to complete tests, separate locations for tests, use of manipulatives and modified directions and reading questions to the child. However, the test techniques which are used in the child's educational program are not necessarily appropriate for each of the tests used in a psychological evaluation, e.g., a test of the child's IQ. Nevertheless, the school psychologist testified that she had not converted the child's raw scores on the IQ subtests into verbal, performance and full scale IQ scores because she recognized that such scores would not accurately reflect the child's cognitive skills.
There is no requirement that the techniques to be used in an evaluation must be set forth in a child's IEP. Federal and State regulations specify the standards to be employed in evaluating children, so that each evaluation accurately assesses the child's aptitude, achievement or other factors which the test purports to measure (34 CFR 300.532; 8 NYCRR 200.4 [b] ). One of the standards of both Federal and State regulations is that the tests used in evaluations must have been validated for the specific purposes for which they are used. At the hearing in this proceeding, petitioners asserted that respondent must validate each test. However the BOCES school psychologist testified that the tests which she used had been validated by their publishers for the purpose for which she used them. I find that the tests were validated within the meaning of Federal and State regulations (34 CFR 300.532 [a]; 8 NYCRR 200.4 [b][i][b]).
In essence, petitioners dispute the appropriateness of the psycho-educational evaluation obtained by respondent on the ground that the school psychologist failed to take into account the child's environmental sensitivities in assessing his achievement and behavior. At the hearing, petitioners asserted that the child's reaction to the hydrocarbon in the after shave lotion worn by the principal of the Wildwood School and in a hair spray worn by the CSE chairperson caused the child's behavioral difficulties during the first day of the psycho-educational evaluation by the BOCES school psychologist. Although there is evidence in the record that the child may be allergic to some hydrocarbons, there is no proof in the record that there were hydrocarbons in either the after shave or the hair spray. Even if there were such evidence, it would not establish that the results of the evaluation were inaccurate. The BOCES school psychologist, who ascribed the child's improved behavior on the second day of the evaluation to the skill of his teacher in managing his behavior, testified that the child's performance on the tests administered to him on both days had been remarkably consistent. Therefore, there is no basis for concluding that the child's performance on the evaluation was affected by his alleged reaction to hydrocarbons or any other substance. I find that the school psychologist's opinion that the evaluation which she conducted accurately reflected the child's skills and needs is unrebutted by any of the evidence offered by petitioners.
Although petitioners do not challenge the child's classification as multiply disabled, they assert in this appeal that the hearing officer's decision should be annulled for failing to recognize the validity of the child's environmental sensitivities. Specifically, they assert that the record demonstrates that when subjected to certain allergens, the child undergoes certain physical changes, such as having his face and eyes redden and his eyes become glazed, and undergoes behavioral changes, such as becoming verbally abusive and unresponsive. Petitioners made a similar argument in their previous appeal, which was dismissed. In its cross-appeal, respondent asserts that the hearing officer erred in failing to grant respondent's motion for collateral estoppel regarding the etiology of the child's disabilities, and that petitioners should be precluded from relitigating the issue of the child's environmental sensitivities.
A party to an administrative proceeding in which an issue has been determined may be precluded from relitigating that issue (Bernstein v. Birch Wathen School, 51 NY 2d 932). In order for a party to be precluded from relitigating an issue, it must be demonstrated that the issue is identical with the issue decided in the prior proceeding, that the issue has been necessarily decided in the prior proceeding, and that the party who will be precluded from relitigating the issue had a full and fair opportunity to litigate the issue in the prior proceeding (Schwartz v. Public Administrator of County of Bronx, 24 NY 2d 65).
In the prior hearing and appeal, petitioners asserted that the child's extensive developmental and behavioral deficits were attributable solely to his environmental sensitivities or allergies, and presented evidence purporting to support their assertion. In Application of a Child with a Handicapping Condition, Appeal No. 92-37, I found, as did the hearing officer, that the record did not provide any credible basis for a finding that the child's developmental and behavioral deficits were caused solely by his allergies, but did afford a basis for the CSE to seek a further evaluation of the child. Thereafter, the CSE did obtain an evaluation by an allergist and a school psychologist. Those evaluations were presented by respondent as evidence in the hearing in this proceeding. I find that petitioners had the right to challenge the accuracy of those evaluations in the hearing in this proceeding. However, they did not have the right to do so by merely reintroducing the evidence adduced at the prior hearing for the purpose of relitigating the issue of the etiology of the child's disabilities.
Petitioners also had the right to challenge the continuing validity of the child's classification for the 1992-93 and 1993-94 school years, by introducing new, material evidence about the nature of the child's disability, or by showing that the child's disability had ameliorated or changed. However, they chose not to challenge the child's classification. Instead, they attempted to collaterally attack the outcome of the prior proceeding. I find that petitioners were afforded a full and fair opportunity to litigate the issue of the etiology of the child's disabilities over the course of 11 days of hearings in the prior proceeding, and should be precluded from relitigating the issue in the absence of a challenge to the child's classification (Application of a Child with a Handicapping Condition, Appeal No. 92-36; Application of a Child with a Handicapping Condition, Appeal No. 91-1).
Although petitioners were afforded the opportunity to introduce additional documentary evidence and testimony relating to the child's allergies in the hearing in this proceeding, I find that such additional evidence does not establish a nexus between either the child's developmental or behavioral deficits. A letter dated April 23, 1993, from the child's pediatric allergist to the hearing officer did not represent that the child's significant deficits in comprehension, sequencing and language processing were in any way caused by the child's allergies, but the allergist did assert that the child's allergic reactions included a red face, red ears, and a glazed stare. The allergist also reported that at times the child was unable to write, became sarcastic and developed a Dr. Jekyll/Mr. Hyde personality. The child's allergist did not testify, and could not be cross-examined about the basis for her belief that the child's allergies could, at times, produce the behavior which she reported. The allergist who reviewed the child's records in January, 1993, but was precluded by petitioners from examining the child, testified that allergies could contribute to, but do not cause or provoke behavior including attention deficit disorder, distractibility, aggression, or the inability to interact with peers and adults which this child has exhibited. The allergist also disputed the scientific validity of the type of allergy tests which the child's allergist had administered. However, the resolution of the parties' dispute about the etiology of the child's behavioral deficits would not materially contribute to a determination about the appropriateness of the child's educational program. Absent any proof in the record that the child's educational deficits and significant management needs have appreciably changed as a result of the medical treatment which he has received, respondent must provide the child with an educational program which addresses his present educational and management needs.
An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term objectives which are related to the child's educational needs (Application of a Child with a Handicapping Condition, Appeal No. 92-42; Application of a Child with a Disability, Appeal No. 93-1).
With regard to the 1992-93 school year, petitioners assert that respondent failed to have an IEP in effect at the beginning of such school year. The CSE did not initially prepare a 1992-93 IEP for the child, reportedly because it believed that it was precluded from doing so during the pendency of petitioners' appeal from the hearing officer's decision (cf. Town of Burlington v. Department of Education, Massachusetts, 736 F. 2d 733 [1st Cir., 1984], aff'd 471 U.S. 359 ; Norma P. v. Pelham Sch. Dist., 19 IDELR 938 [U.S. D.C. N.H., 1993]). Although I find that the CSE was not precluded from preparing a new IEP because of the pendency of the prior proceeding, its failure to do so did not result in the child having no IEP as of the beginning of the 1992-93 school year. The child's last agreed upon IEP, which was prepared in June, 1991, for the 1991-92 school year remained in effect at the beginning of the 1992-93 school year.
Petitioners assert that the IEP for the 1992-93 school year which was prepared at the October 2, 1992 CSE meeting was defective because its annual goals were too general and were not related to the child's present levels of performance. The annual goals in a child's IEP should be statements which describe what a child can reasonably be expected to accomplish within a 12-month period in the child's special education program (34 CFR 300, Appendix C, Question 38). The child's progress towards achieving his or her annual goals is to be ascertained by the IEP's short-term objectives which are measurable, intermediate steps between the child's present levels of performance and the annual goals (Ibid, Question 39). While not as specific as a short-term objective, an annual goal must nevertheless be sufficiently specific to provide direction to the child's teacher concerning the CSE's expectation, and must address the child's individual needs (Application of a Child with a Disability, Appeal No. 93-24). The child's IEP for the 1992-93 school year consisted of 2 pages of material prepared by the CSE and 11 pages of material prepared by the staff of the Wildwood School and adopted by the CSE. The child's annual goals, which were set forth in both parts of the IEP, included statements that the child would:
"continue to develop functional reading skills - 1st grade +; continue to develop math readiness level skills - 1st grade +, continue to improve relations with peers and adults; accept and feel good about himself."
I find that such annual goals are not specific enough to be of use in providing the child with an appropriate special education program (Application of a Child with a Disability, Appeal No. 93-7; Application of a Child with a Disability, Appeal No. 93-24, Application of a Child with a Disability, Appeal No. 93-35). Nevertheless, I do not find the child's IEP to be inappropriate as a result of the annual goals, because the child's short-term objectives set forth in the IEP provide more than adequate specificity about the child's present and expected levels of performance and ways in which special education services will be provided to enable the child to progress towards his expected levels of performance.
Petitioners also challenge the child's 1992-93 IEP on the ground that the criteria by which the child's mastery of his short-term objectives is to be ascertained is allegedly discriminatory. The child's IEP provides that the child will have achieved various short-term objectives when he can perform certain tasks with 80 percent accuracy. Petitioners assert that the 80 percent standard is discriminatory because 60 percent is the criteria by which children are found to have passed examinations and/or subjects in respondent's schools. I find that petitioners' argument is patently without merit. Petitioners further assert that the child's IEP is defective because it does not provide enough specificity about the alternative test techniques to be used with the child. State regulation requires that each child's IEP list the testing modifications to be used consistently by the child in the recommended educational program (8 NYCRR 200.4 [c][vii]). A child's IEP should be sufficiently specific as to testing techniques and the conditions for their use to assure that such techniques are appropriately used (Application of a Child with a Handicapping Condition, 27 Ed. Dept. Rep. 220; Application of a Child with a Disability, Appeal No. 93-24). In this instance, the child's IEP identifies seven specific alternative test techniques. I find that the child's IEP meets the requirement of State regulation.
Petitioners raise the same objections to the child's 1993-94 IEP as they did with the 1992-93 IEP. Although there are differences in the details of the IEPs, the goals, mastery requirements and alternative test techniques are comparable in each IEP, and I make the same findings for the 1993-94 IEP as I did with the 1992-93 IEP. Petitioners make the additional assertion that the 1993-94 IEP is defective because the CSE failed to update the 1992-93 IEP before preparing the newer IEP. They do not identify any provision of statute or regulation which requires that an IEP be updated. Nevertheless, an IEP must be reviewed and revised if appropriate, on an annual basis and an IEP must reflect a child's present levels of performance (8 NYCRR 200.4 [e]). I find that the child's IEP for the 1993-94 school year was based upon his then present levels of performance. Annexed to the IEP which the CSE drafted at its April 28, 1993 meeting is a four-page description by the child's teacher of his performance which is related to his goals and objectives. The Wildwood recommendations for the child's 1993-94 IEP which were discussed and adopted by the CSE set forth short-term objectives which are consistent with the teacher's description of his levels of performance.
Petitioners, who are not aggrieved by the hearing officer's finding that respondent had failed to prove the appropriateness of the child's program for the 1992-93 school year and recommended program for the 1993-94 school year, nevertheless assert that the hearing officer erred by failing to find that the child was inappropriately grouped with the children in his Wildwood class and that he required a more academic program. However, since respondent has cross-appealed from the hearing officer's finding, I will consider petitioners' assertions in respondent's cross-appeal.
Respondent bears the burden of establishing the appropriateness of the program recommended by the CSE (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12). To meet its burden, respondent must demonstrate that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a]).
The record reveals that for the 1992-93 school year the child continued to have extensive academic, social/emotional and management needs. The child's psycho-educational evaluation performed in February, 1993, as well as the testimony of the child's primary teacher and his speech/language teacher established that the child was distractible, processed information better visually than auditorily, had difficulty sequencing and writing, and exhibited a very limited ability to reason in social areas. During the school year, the child achieved growth in all areas of reading and mathematics, except for basic mathematical concepts. His total mathematical skills were reported to be at an age equivalent of 5.6 years. The child's teacher testified that the child had progressed through the first grade reading curriculum by the end of the 1992-93 school year. The teacher further testified that the child exhibited perseverative behavior and self-stimulatory behavior, on occasion. The child's teacher, speech/language teacher and counselor each testified that the child had difficulty transitioning from one activity to another. The child's teacher further testified that the child had kicked her and thrown objects at her, and that she had seen him exhibit similar behavior with other teachers. The teacher also testified that the child interacted with his peers very little in class, and had only recently begun to interact with his peers during recess.
State regulation requires that children with disabilities who are placed together for special education must be grouped by similarity of individual needs (8 NYCRR 200.6 [a]). The hearing officer in this proceeding found that respondent had failed to prove that petitioners' child had been grouped with children having similar needs. In this instance, the record does not include a profile of the children in the Wildwood class. However, the absence of a profile is not dispositive of the matter. The child's teacher testified that all of the children in the class were within a three year chronological age range. The Wildwood program coordinator testified that all of the children were classified as multiply disabled, and that other children in the class were working with academic materials at the first and second grade levels. The child's teacher testified that one child was working at a higher level in mathematics than petitioners' child, and that five of the children, including petitioners' child were capable of writing self-generated stories. Three of the children in the class were non-verbal, while five of the children required assistance in the bathroom. However, I find no basis in the record for concluding that the academic, social, or management needs of petitioners' child were significantly different from those of the other children in his class in the Wildwood School during the 1992-93 school year.
The hearing officer further found that respondent had not demonstrated that the child's placement in the Wildwood School for the 1992-93 school year was the least restrictive environment, and suggested that the CSE should consider the child's placement in a class with a child to adult ratio of 6:1+1. Respondent bears the burden of showing that the child could not be educated in a less restrictive environment (Application of a Child with a Handicapping Condition, Appeal No. 92-41). A determination of what constitutes the least restrictive educational placement for a child must be based upon the individual needs of the child, as described in his or her IEP. The child's IEP for the 1992-93 school year reveals that he required a low-stimulation environment, with close supervision to maintain his focus upon tasks, and individual prompts in order to follow unfamiliar directions. It further reveals that the child required immediate behavioral intervention because of his impulsive behavior, including occasional verbal and physical abusiveness. The testimony of the Wildwood staff about the child's performance was entirely consistent with the IEP's description of his needs. Although the IEP provided that the child should be instructed in a group of two, the child's teacher testified that the child required 1:1 instruction in reading for a significant portion of the school year.
The record demonstrates that the child requires an intensive and interrelated program of education and habilitation, and that the Wildwood School in fact provided such a program. The BOCES school psychologist testified at the hearing in this proceeding that she was not aware of any BOCES program which was comparable to that of the Wildwood School. The requirement that each child be placed in the least restrictive environment is subject to the proviso that the child's placement be appropriate (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 49). I find that respondent did meet its burden of demonstrating the appropriateness of the child's placement in the Wildwood School for the 1992-93 school.
Respondent also cross-appeals from the hearing officer's finding that it had failed to prove the appropriateness of the CSE's recommendation that the child remain in the Wildwood School for the 1993-94 school year. The hearing officer found that there was no evidence in the record about the children who would be in the class recommended by the CSE, and that respondent had not established that the recommended class would be the least restrictive environment for the child. I concur with the hearing officer's finding that respondent failed to provide any evidence either through testimony or through a class profile to demonstrate that the child would be appropriately grouped with children having similar needs for the 1993-94 school year. With its cross-appeal, respondent has submitted an affidavit by the principal of the Wildwood School and a profile of the recommended class. Documentary evidence not presented at a hearing may be considered in an appeal from the hearing officer's decision if such evidence was unavailable at the time of the hearing or the record would be incomplete without such evidence (Application of a Child with a Disability, Appeal No. 93-14). Although the principal asserts that the information in the profile was not available at the time of the hearing, he testified at the hearing that planning for the next year's placement begins in February. Wildwood had made its recommendation for the child by April, 1993. I find that petitioners would be deprived of an opportunity to challenge the appropriateness of the grouping for the 1993-94 school year, if the affidavit and profile were added to the record before me. Therefore, I will not accept the affidavit and profile.
I do not reach the issue of least restrictive environment because it is not necessary to do so in the absence of evidence about the similarity of grouping. Consequently, I must dismiss this portion of respondent's cross-appeal.
Finally, petitioners challenge the hearing officer's directive that the child be psychiatrically evaluated within 30 days after the date of his decision. The hearing officer premised his directive upon the recommendation by the BOCES school psychologist that the child receive a psychiatric evaluation to determine the nature of the child's emotional disturbance. Petitioners assert that the school psychologist failed to conduct an appropriate evaluation, and that the hearing officer's reliance upon the school psychologist's recommendation is misplaced. However, I have found that the psycho-educational evaluation to which petitioners refer was appropriate. I need not, and do not, find that the child is emotionally disturbed, as a basis for the proposed psychiatric evaluation. The CSE has the responsibility to conduct " ... assessments or evaluations as necessary to ascertain the physical, mental and emotional factors which contribute to the [child's] suspected disabilities" (8 NYCRR 200.4 [b][iv]). In view of the extensive evidence in the record of the child's behavioral difficulties, I find that the hearing officer did not abuse his discretion in directing the CSE to obtain a psychiatric evaluation.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS SUSTAINED to the extent indicated.
IT IS ORDERED, so much of the decision of the hearing officer has found that respondent had failed to establish the appropriateness of the child's program for the 1992-93 school year is annulled.
New York _________________________
October 29, 1993 HENRY A. FERNANDEZ