University of the State of New York Emblem

The State Education Department
State Review Officer

No. 93-8

Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York

Appearances:

Neal H. Rosenberg, Esq., attorney for petitioner, Michele Kule-Korgood, Esq., of counsel

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, Todd Bromberg, Esq., of counsel

DECISION

Petitioner appeals from the decision from an impartial hearing officer which held that the proposed transfer of petitioner's child from a specialized instructional environment-I (SIE-I) class in P. 811 to a SIE-I class in P. 168 would provide the child with an appropriate program in a less restrictive environment. The appeal must be sustained.

Petitioner's child, who is 12 years old, has Down Syndrome. In a triennial psychological evaluation performed in July, 1991, a school psychologist opined that the child was moderately mentally retarded, while noting that the child could not be tested with standard IQ tests because her ability to communicate was limited to some guttural sounds and related hand movements. The child's mental age was estimated to be that of a three year old, while her adaptive behavior was assessed to be below that of a five year old child in all areas, with relative strengths in the area of peer relationships and self-maintenance. The child's classification as mentally retarded is not disputed.

The child has a congenital heart defect. She previously underwent surgery to close an opening in her heart. In November, 1992, the child's physician at the College of Physicians and Surgeons of Columbia University opined that the child is restricted in her physical activities, and should not climb stairs. At the time of the hearing in this proceeding, the child was about to undergo a cardiac catheterization. The child has a medical history of asthma and seizures, as well as chronic inflammation of her eye lids. The child also has esotropia, or crossed eyes. In March, 1991, the child's teacher requested that the child be given vision services. However respondent subsequently determined that such services would not be appropriate for the child.

Since 1986, the child has been enrolled in a SIE-I class with a child to adult ratio of 9:1+3 in respondent's P. 811 which is located within respondent's Intermediate School 84 in the Bronx. Only children from the ages 5 through 21 with disabilities are enrolled in P. 811. However, Federal and State regulations require that children with disabilities be educated in the least restrictive environment (34 CFR 300.550 [a]; 8 NYCRR 200.6 [a]][1]). State regulation defines least restrictive environment as follows:

"Least restrictive environment means that placement of students with disabilities in special classes, separate schools or other removal from the regular educational environment occurs only when the nature or severity of the disability is such that even with the use of supplementary aids and services, education cannot be satisfactorily achieved. The placement of an individual student with a disability in the least restrictive environment shall:

(1) provide the special education needed by the student;

(2) provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and

(3) be as close as possible to the student's home."

Respondent has adopted a policy of phasing out the SIE-I classes for older children enrolled in P. 811, and transferring the children in those classes to SIE-I classes in schools which do not serve disabled children exclusively and which are nearer to the children's homes.

In the Summer of 1992, space for special education classes became available within Intermediate School 162, which is also in the Bronx. Petitioner's child was selected to be transferred to a new P. 168 which was created within Intermediate School 162 to serve children with disabilities who live in Community School Districts 7, 8 and 9. Petitioner visited the new P. 168 before it opened on November 16, 1992. However, petitioner thereafter requested an impartial hearing to review the appropriateness of the program in P. 168 for her child. A hearing was held on December 9, 1992. In a decision dated January 8, 1993, the hearing officer held that respondent had satisfied its burden of proving the appropriateness of the child's program in P. 168.

Respondent asserts that the decision of the hearing officer must be upheld because the proposed transfer of the child from a SIE-I in P. 811 to a SIE-I class in P. 168 would not change the child's educational placement and petitioner does not challenge the child's present placement. Although a change in the location of a program is not per se a change in program (8 NYCRR 200.1 [e]), or a change in placement (8 NYCRR 200.1 [f]), a change of location which involves moving a child's program from a more restrictive setting to a less restrictive setting is a change of placement for purposes of the pendency provisions of Federal and State law (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 92; Application of a Child with a Disability, Appeal No. 93-5). In this instance, the stated purpose of the proposed transfer is to place the child in a less restrictive environment. Petitioner has the right to challenge the proposed transfer, and respondent has the burden of demonstrating the appropriateness of the child's proposed placement.

Petitioner asserts that the child's present placement is appropriate, and that respondent cannot transfer the child, absent a finding that such placement is inappropriate. Petitioner's assertion is untenable (Concerned Parents and Citizens for the Continuing Education at Malcolm X (P.S. 79) et al. v. New York City Board of Education et al., No. 80-7300 [2d Cir., 1980] EHLR 552:147). Petitioner further asserts that the child is not ready for placement in a less restrictive environment. To support her assertion, petitioner offers copies of parts of the child's individualized education programs (IEPs) from 1988, 1991, and 1992. There are statements on the IEPs that no other program or service category had been considered because the child's functioning was within respondent's guidelines for its SIE-I classes and that the child was "... not ready to move to a less restrictive environment". Petitioner's reliance upon the IEP statements is misplaced. The context in which the statements were made involves the consideration of whether some class other than a SIE-I class would be appropriate. Such other classes may have less restrictive child to adult ratios, as parts of the continuum of programs and services which respondent must provide pursuant to Federal and State regulations pertaining to least restrictive environment (34 CFR 300.551; 8 NYCRR 200.6 [a]). In this instance, respondent has not proposed that the child be placed in a class with a different child to adult ratio.

Petitioner asserts that despite the rationale offered by respondent for the proposed transfer, the child would in fact not be educated in a less restrictive environment in P. 168 because the children with disabilities are segregated from the non-disabled children in that school. At the hearing in this proceeding, respondent's special education site supervisor for P. 168 testified that the children in the SIE-I classes were being prepared by the staff for interaction with non-disabled children in non-academic activities such as lunch, and that children in the SIE-I classes were interacting with less severely disabled children in modified instructional services classes. Although the site supervisor's testimony demonstrates that there may be opportunities for a less restrictive program for the child in P. 168, respondent has inexplicably failed to offer the child's IEP for the 1992-93 school year. Federal regulation requires that a child's IEP describe the extent to which the child will participate in regular educational programs (34 CFR 300.346 [a][3]). In the absence of the child's 1992-93 IEP, it is not possible to ascertain the extent of the child's opportunities for interaction with non-disabled peers. Given the child's relative strength in peer relationships and self-maintenance, there would appear to be no basis for the child's complete isolation from the children enrolled in regular education classes in the proposed school setting.

Petitioner also asserts that P. 811 is a less restrictive environment than P. 168 because P. 811 is nearer to her home than is P. 168. In its answer, respondent asserts that P. 168 is nearer to petitioner's home, as found by the hearing officer who questioned petitioner about this matter at the hearing. The proximity of a child's placement to the child's home is an element of least restrictive environment (8 NYCRR 200.1 [x][3]). However, I find that the record does not provide an adequate basis to determine which of the two schools is closer to petitioner's home. In either case the child will be transported by respondent to school. I do note that the placement in P. 168 is at least a potentially less restrictive environment because P. 168 offers the opportunity for interaction with children in regular education while P. 811 does not.

Petitioner has raised questions about the manner in which the child's management needs would be met in the new location. She asserts that the child is medically frail, and requires railings in halls in order to walk. She further asserts that P. 168 would be an inappropriate site for the child because the building lacks railings in its halls and because its restroom is located much further from the child's classroom than is the case in P. 811. At the hearing, petitioner conceded under questioning by the hearing officer that the child could ambulate independently. The documentary evidence in the record, including the child's 1991-92 IEP which reported that the child had no problem walking or running, supports the conclusion that the child's mobility, i.e., ability to ambulate, is not a relevant factor in assessing the appropriateness of the proposed class in P. 168.

Petitioner's concern about the child's frailty does raise the issue of the child's capacity for physical activity and endurance. The record includes a November, 1992 letter by the child's physician at the College of Physicians and Surgeons at Columbia University saying that the child is restricted in her physical activities and may not climb stairs. The record also includes a November, 1992 letter from the child's physician at the Terrence Cardinal Cooke Health Care Center stating that the child has severe congenital heart disease and would be undergoing cardiac catheterization. The results of the catheterization are not in the record. At the hearing, respondent's site supervisor testified that SIE-I classes are located on the first and second floors of P. 168. The record does not reveal on what floor the specific class which has been proposed for the child is located. Although the building has an elevator, it is not possible to ascertain from the record whether respondent's committee on special education (CSE) has provided for the child's use of an elevator in her IEP. Nor is there any other basis in the record for determining what her physical needs are and how they would be met in the proposed placement.

The child's physician at the Terrence Cardinal Cooke Health Center has opined that a change in the child's school environment would be a drastic event which might cause her emotional trauma. In view of the concerns raised about the child's health, I find that the CSE must obtain further information from the child's physicians about her present health status and must prepare an IEP which addresses those concerns in its recommendation of an appropriate program and placement for the child during the 1993-94 school year. The child's IEP should include a description of the transitional services to be provided to the child (8 NYCRR 200.1[aq]), and the parental counseling to be provided to petitioner so that she may perform appropriate follow-up intervention activities at home (8 NYCRR 200.6 [f] [8]).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is annulled.

Dated:             Albany, New York                                     _________________________
                        June 8, 1993                                               HENRY A. FERNANDEZ