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The State Education Department
State Review Officer

No. 95-33

Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Pine Plains Central School District

Appearances:
RosaLee Charpentier, Esq., attorney for petitioners

Shaw and Perelson, LLP, attorneys for respondent, David S. Shaw, Esq. and Lisa A. Schreiner, Esq., of Counsel

DECISION

        Petitioners appeal from the decision of an impartial hearing officer which found that respondent's committee on special education (CSE) had not prepared an appropriate individualized education program (IEP) for their son, but which denied their request that respondent be compelled to pay for the child's placement in a private residential school for the 1994-95 school year.1  Petitioners seek an order affirming the hearing officer's finding with regard to the child's IEP, but annulling the hearing officer's finding that the placement of the child in a residential school for children with disabilities was inconsistent with the Federal and State requirement that children with disabilities be placed in the least restrictive environment. The appeal must be dismissed.

        The child, who is sixteen years old, was adopted at birth by petitioners. When he was two years old, the child was enrolled by petitioners in a preschool special education program of the Putnam Association for Retarded Children. The child was diagnosed as having an attention deficit hyperactivity disorder (ADHD) when he was five years old. He has received medication to control his ADHD for a number of years. In 1988, the child was hospitalized at the New York Hospital-Cornell Medical Center because of hyperkinesis with attentional difficulties. A hospital psychiatric report described the child as hypersensitive to criticism and manifesting physically aggressive behavior. A hospital psychologist reported that the child exhibited multiple deficits, particularly in his receptive and expressive language skills and his attention skills.

        Until September, 1993, the boy lived with his mother, who was a resident of the Brewster Central School District. He then lived with his father, who is a resident of respondent's school district. While living in the Brewster school district, the child was classified by the Brewster CSE as speech impaired, and he was enrolled in various self-contained special education classes. In a letter to the Brewster CSE, after the child's hospitalization in 1988, a physician of the New York Hospital-Cornell Medical Center recommended that the child be placed in a day treatment setting, so that he could obtain individual, group, and family therapy, and that he be instructed in a small group of children.

        The child achieved a verbal IQ score of 82, a performance IQ score of 72 and a full scale IQ score of 76, when he was evaluated by a Brewster school psychologist in May, 1991. He exhibited weaknesses in short-term auditory memory and social reasoning. His graphomotor skills were reported to be in the very deficient range. The school psychologist reported that the child's performance on the various parts of the IQ test was consistent with that of a child having an attention deficit disorder. The child also exhibited a deficit in his visual motor integration skills. Projective testing of the child revealed that he was insecure, with an over reliance upon others for support and provision of his needs. The school psychologist reported that the child had a poorly developed sense of self-awareness, and opined that his poor ability to control his impulses contributed to conflicts at home and in school.

        In January, 1993, when the boy was in the eighth grade, the child achieved a grade equivalent score of 5.3 in an individually administered reading test and a grade equivalent score of 3.1 in a group administered mathematics test. The evaluator who had administered both tests reported that the child had been distracted during the mathematics test. While in the eighth grade at Brewster, the child was in a special education and creative crafts (art) classes. His report card indicated that he received passing grades in all subjects, except creative crafts and science. He received speech/language therapy, and individual and group counseling while in the eighth grade.

        In August, 1993, the child was admitted to the Four Winds Hospital by his mother because he had reportedly exhibited oppositional and aggressive behavior towards her. The boy, who was treated with the medications Haldol and Desprimine at the hospital, was described as having a flat affect and appearing to be depressed during a psychological evaluation administered by a hospital psychologist in August, 1993. The child achieved a verbal IQ score of 73, a performance IQ score of 63, and a full scale IQ score of 66, which was within the mildly retarded range of intellectual functioning. On one portion of the IQ test measuring his ability to perform visual perceptual tasks, the boy was reported to have scored significantly below the norm. The psychologist opined that the child's poor performance on various neuropsychological screening tests appeared to be caused by his generally limited intellectual endowment, rather than a specific neuropsychological dysfunction. On an academic screening test, the child achieved beginning third grade level scores in reading and mathematics. The psychologist opined that the child manifested signs of anxiety and depression, as well as low self-esteem. She noted that the child's relationships with other people appeared to be rather tenuous and troubled, but that he did not appear to be psychotic.

        In September, 1993, the child was enrolled by his father in respondent's school. He was placed in a self-contained class in respondent's Stissing Mountain Junior-Senior High School. The class, which was comparable to his previous class in the Brewster Central School District, was regarded as a pendency placement (Section 4404 [4] of the Education Law). The CSE met with the child's father on September 28, 1993, to recommend the child's educational program for the 1993-94 school year. The CSE recommended that the child be classified as multiply disabled, rather than speech impaired. It also recommended that he be educated in a self-contained class of no more than twelve children with two adults (teacher and aide), on a 10-month basis. The CSE further recommended that the child be mainstreamed for physical education, home and careers, art, and technology classes. The CSE recommended that the child receive the related services of small group speech/language therapy twice per week, individual school social work services once per week, and individual counseling twice per week. The child's IEP indicated that he would be provided with the use of a computer and calculator. Testing modifications included the waiver of time limits, and having his test questions read to him. The child's IEP had annual goals to improve his reading, mathematics, listening comprehension, writing, social studies, and attention skills. At the hearing in this proceeding, respondent's CSE chairperson testified that the CSE based its recommendation upon the child's prior IEP from Brewster and the report of the child's special education teacher in respondent's school. She also testified that there was no basis for placing the child in a residential school, as his father had requested, because the child appeared to exhibit appropriate behavior in respondent's junior-senior high school. Petitioners did not challenge the CSE's recommendation.

        The CSE conducted its annual review of the child on March 11, 1994. The child's special education teacher reported that the child had received grade equivalent scores of 2.6 in reading and 3.5 in mathematics on group administered achievement tests, but opined that the test results did not accurately reflect his academic skills. She suggested that the child's scores reflected his inability to work independently. On an individually administered achievement test in February, 1994, the child had achieved grade equivalent scores of 5.4 in reading and 4.2 in mathematics. The CSE recommended that the child remain classified as multiply disabled during the 1994-95 school year, and continue to be enrolled in a 12:1+1 self-contained class, on a 10-month basis. It also recommended that the child be mainstreamed for physical education and art, and that he receive group speech/language therapy twice per week and individual counseling once per week. The child's IEP included a provision for the use of a calculator, and testing modifications. The IEP also included a transition plan.

        At the hearing, the CSE chairperson testified that the CSE had also recommended that the child receive a vocational assessment, although that recommendation was not included in the child's IEP. The CSE chairperson also testified that the CSE had not specifically reviewed the child's progress towards achieving his 1993-94 annual goals, and that the child's teacher had prepared his annual goals and short-term instructional objectives for the 1994-95 school year after the CSE meeting (cf. Application of a Child with a Disability, Appeal No. 94-4). The IEP for the 1994-95 school year set forth very general goals in the areas of reading, mathematics, social development, language arts, writing, social studies, speech/language, social and emotional development, and pre-vocational training. The CSE chairperson testified that petitioners had again requested a residential placement for their son, but that the CSE could not justify such a restrictive placement on the basis of his academic, social, and emotional needs. A copy of the complete IEP was not sent to petitioners until April 20, 1994.

        At petitioners' request, the CSE reconvened on April 13, 1994, following three incidents in school which had occurred after the CSE had made its recommendation in March. The first incident involved the child's reportedly being found in the same restroom stall with another boy. The other two incidents which occurred on March 23, 1994, involved the child being insubordinate to a substitute teacher and engaging in a fight with another student. He received a two-day in-school suspension for the fighting incident. At the CSE meeting, petitioners again requested residential placement for the child. The child's teacher opined to the CSE that a residential placement was not educationally warranted. The CSE reaffirmed its prior recommendation for the 1994-95 school year.

        The child was evaluated by respondent's school psychologist on June 1, 1994. The child achieved a general mental ability quotient of 67, which the school psychologist testified was comparable to the IQ score which the child had achieved when he was tested at the Four Winds Hospital in August, 1993. The child exhibited deficits in his short-term memory, fine motor, and perceptual motor integration skills. The school psychologist also administered achievement tests to ascertain the child's academic skills. He reported that the child had achieved grade equivalent scores of 5.4 in reading, 4.2 in mathematics and 7.4 in spelling, which the school psychologist opined were more accurate estimates of the child's academic ability than the achievement scores which had been reported when the child was tested at the Four Winds Hospital in 1993. The school psychologist, who had provided counseling to the child during the 1993-94 school year, reported that the boy usually displayed appropriate behavior in school, but was developmentally much younger than his age and required much supervision. He noted that the child had difficulty with peer relationships and educational responsibilities. The school psychologist recommended that the child remain in respondent's self-contained pre-vocational program during the 1994-95 school year, and that he receive a vocational evaluation to assess his specific vocational skills and interests.

        On June 9, 1994, the child was re-admitted to the Four Winds Hospital, after an incident in which he had reportedly set a neighbor's motor vehicle on fire. In a letter to the CSE chairperson, dated June 24, 1994, a social worker employed by the Four Winds Hospital asserted that the child had been diagnosed as having a pervasive developmental disorder not otherwise specified and an attention deficit hyperactivity disorder, and that the child had an impaired ability to control his impulses. The social worker also asserted that it was not possible for the child to receive appropriate psychiatric, educational, or social supports, unless he was placed in a therapeutic full-time residential treatment center.

        The CSE met at petitioners' request on July 11, 1994. The CSE considered petitioners' request for a residential placement, but declined to change its prior recommendation that the child remain in respondent's self-contained special education class for the 1994-95 school year. It did agree to have the child independently evaluated, as had been requested by petitioners, and offered to provide the child with an instructional program during the Summer of 1994. At the hearing in this proceeding, the CSE chairperson and the school psychologist acknowledged that the CSE had not relied upon the State regulatory criteria for determining eligibility for a 12-month program, i.e., whether a child requires a structured learning environment of up to 12 months duration to prevent substantial regression (8 NYCRR 200.1 [qq]), when it offered a summer program to the child. They testified that it had been offered because there was space available in respondent's summer program and that the program would provide the child with useful pre-vocational and socialization experiences.

        A Four Winds psychologist who evaluated the child on August 12, 1994 reported that the child displayed a flat affect, and tended to mumble and slur words. However, he did not exhibit any sign of a thinking disturbance or psychosis. The child achieved a verbal IQ score of 71, a performance IQ score of 57, and a full scale IQ score of 61, which the psychologist described as being in the mildly retarded range. He noted that the child's verbal reasoning skills did not appear to be better developed than in non-verbal reasoning skills, and suggested that the child's somewhat better developed fund of information reflected the positive impact of having been enrolled in special education classes. On achievement tests the child's reading skills were found to be at the sixth grade level, while his mathematics skills were reported to be at the third grade level. The psychologist noted that the child did not display the impulsive inattention typical of children with ADHD, but was nevertheless quite distractible. The psychologist reported that the child was immature, and had acquired a deeply ingrained sense of his own limitations. The psychologist described the child as being at considerable risk for the development of delusional beliefs which would in turn lead to inappropriate and maladaptive actions. However, he noted that the child's coping resources were about as well developed as those of most persons of the child's age. The psychologist opined that the child was likely to function best in settings in which expectations are simple, straight forward, and clearly spelled out, and where he would not be subjected to intense emotional challenges. The child's teacher at the Four Winds Hospital during the Summer of 1994 reported that the child had been cooperative, and had made progress in dealing with his learning disabilities and short-attention span.

        Petitioners obtained the services of a psychologist who had been affiliated with the Four Winds Hospital until 1992, and had been employed as the Devereux School's Director of Clinical Services since 1993 to perform the child's independent evaluation, which was completed on August 24, 1994. The psychologist did not administer any standardized tests to the child because she believed that the child had been exhaustively tested. Instead, she reviewed the results of his prior evaluations, interviewed the child, petitioners, and the staff at the Four Winds Hospital, and observed the child in an educational setting at the Hospital. She opined that the child was functioning in the mildly retarded range, and that he was psychologically/psychiatrically fragile, with a tendency to decompensate quickly and dramatically after being frustrated or experiencing "emotional overload". The psychologist described the child as being at risk for acting out because he often acted without thinking, as might happen with a much younger child. While acknowledging that the child had derived some benefit from his prior special education placements, the psychologist opined that the child would best be served by placement in a residential school because such a setting would offer him maximal educational assistance and the level of supervision necessary to promote his more adaptive functioning.

        At petitioners' request, the CSE met with petitioners on August 30, 1994 to review the independent evaluator's report. The independent evaluator was unable to attend the CSE meeting, but participated in it by telephone. The CSE reaffirmed its prior recommendation that the child remain in a self-contained class in respondent's Stissing Mountain Junior-Senior High School for the 1994-95 school year.

        In a letter to respondent's superintendent, dated September 5, 1994, the child's father requested that an impartial hearing be held to review the CSE's recommendation. The hearing began on October 20, 1994, and ended on February 15, 1995. The hearing officer rendered his decision on April 21, 1995. While noting that petitioners sought a determination with respect to the appropriateness of the child's IEP for the 1993-94 school year, the hearing officer held that he could not do so because petitioners had not requested a hearing with respect to that IEP. Therefore, he limited his decision to the child's IEP for the 1994-95 school year. Although the child had been placed in the Devereux School by the Dutchess County Department of Social Services as part of the disposition of the juvenile delinquency proceeding which had been brought against him, and there was no evidence that petitioners had been required to pay for the child's placement, the hearing officer applied the three-part standard for tuition reimbursement claims set forth in the decision in School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985). In accordance with the Burlington decision, a board of education may be required to pay for educational services obtained for a child by the child's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim.

        The hearing officer found that respondent had failed to meet its burden of proof with respect to the appropriateness of the educational program which the CSE had recommended for the 1994-95 school year because the child's IEP was flawed, and because the child's teacher had not been present at the CSE meeting held on August 30, 1994 when the IEP was last reviewed by the CSE, as required by Federal regulation (34 CFR 300.344 [a][2]) and State Law (Section 4402 [1][b][1] of the Education Law). With regard to the IEP, the hearing officer found that it did not set forth the child's current functioning levels (cf. 8 NYCRR 200.4 [c][2][i]), and did not include appropriate criteria for measuring the child's progress toward completion of his IEP annual goals and short-term instructional objectives (cf. 8 NYCRR 200.4 [c][2][iii]). In addition, he found that some of the child's annual goals had not been individualized to address his needs.

        With respect to petitioners' request that respondent be ordered to pay for the child's placement at the Devereux School, the hearing officer found that there was insufficient evidence in the record to demonstrate that the child was receiving any special education at the Devereux School which addressed his individual needs. The hearing officer further found that there was no evidence in the record to establish that the child's behavior outside of school had impacted upon his ability to benefit from respondent's educational program, and that a residential placement would not be the least restrictive environment for the child. He remanded the matter to respondent's CSE to prepare an appropriate IEP for the 1994-95 school year.

        Petitioners do not challenge the appropriateness of the child's classification as multiply disabled. Therefore, I will not review its appropriateness in light of the State regulatory criteria for such classification (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D.N.Y., 1987]; Application of a Child with a Disability, Appeal No. 93-42). Petitioners request that the hearing officer's determination with respect to the appropriateness of the child's IEP for the 1994-95 school year be affirmed. Although respondent asserts in its memorandum of law that the child's IEP goals were appropriate, it has not cross-appealed from the hearing officer's decision. In the absence of a cross-appeal by respondent from that portion of the hearing officer's decision, I am precluded from reviewing his findings with regard to the child's IEP (Application of a Child with a Disability, Appeal No. 95-24).

        Petitioners ask that the hearing officer's decision be annulled to the extent that it denied them what they characterize as appropriate relief regarding "their unilateral placement of the child in the Devereux School." However, it is clear from the transcript of the dispositional proceeding in the Dutchess County Family Court on November 1, 1994 (Exhibit 43) that the child was placed in the Devereux School pursuant to the order of the Family Court by the Dutchess County Department of Social Services, rather than by petitioners. Although the question of tuition reimbursement for the child's court ordered placement is not presented in this proceeding, petitioners are nevertheless entitled to receive a decision with regard to the appropriate educational program for the child during the 1994-95 school year (Application of a Child with a Disability, Appeal No. 95-19).

        The central issue in this proceeding is whether the child required a placement in a residential school for educational purposes during the 1994-95 school year. Respondent is required to provide an educational program which is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]). A board of education may be required to provide a residential placement to a child with a disability, if the placement is necessary to provide special education and related services to the child (34 CFR 300.302). In other words, a residential placement is appropriate under Federal and State law only if it is required for the child to benefit from his or her educational program, i.e., to make educational progress (Abramson v. Hershman, 701 F. 2d 223 [1st Cir., 1980]; Burke County Bd. of Ed. v. Denton, 895 F. 2d 973 [4th Cir., 1990]; Kerkam v. Superintendent D. C. Public Schools, 931 F. 2d 84 [D. C. Cir., 1991]; Applications of Bd. of Ed. Hoosic Valley CSD and a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 129; Application of a Child with a Handicapping Condition, Appeal No. 92-27). In order to determine whether the child required a residential program in the 1994-95 school year, it is necessary to examine his performance during the preceding school year.

        A comparison of the child's standardized test scores from January, 1993, when he was in the Brewster schools, to February, 1994, when he was in respondent's 12:1:1 special education class reveals that the boy made a modest improvement in his academic skills. His special education teacher for the 1993-94 school year testified that he continued to improve throughout the remainder of that school year. She testified that the child's oral reading and his writing skills had improved. She further testified that the child had made gains in the content areas, and had made good progress in developing his mathematics skills. The teacher also testified that while the child continued to be distractible, he had improved his ability to remain seated without fidgeting (one of his IEP objectives). Although some of the goals and objectives from the child's 1993-94 IEP were included on the proposed IEP for the 1994-95 school year, the teacher testified, and the record indicates, that a higher standard of performance was specified in the IEP for the 1994-95 school year. In view of the nature of the child's disability, including rather low cognitive skills, distractibility and some emotional difficulties, I find that the child made reasonable progress during the 1993-94 school year in a program which was quite similar to the program recommended by the CSE for the 1994-95 school year, i.e., in a day, rather than a residential, program.

        Petitioners assert that it is necessary to examine each of the child's needs, and that his most pressing needs are in developing independent living skills. They further assert that respondent has ignored the child's difficulties in coping during the time when he is not in school. Although there may well be instances where a child's social, emotional, medical and educational needs are so intertwined as to require a residential placement (see North v. District of Columbia Board of Education, 471 F. Supp. 136 [D.D.C., 1979]; Papacoda v. State of Connecticut, 528 F. Supp. 68 [D. Conn., 19981]), this is not such a case. Respondent has demonstrated that the child is able to function successfully in a day educational program, in which he was partially mainstreamed in regular education classes. Although the child required close supervision while performing some academic tasks, such as independent reading, I find that there is no evidence in the record that respondent would be unable to meet the child's instructional needs. The prevocational program in which the child was enrolled while attending respondent's schools included instruction in basic skills which are necessary for an adult to function in society.

        At the hearing in this proceeding, two distinctly different perceptions of the child were presented. Petitioners' perception was of a child with almost no independent skills and requiring constant supervision. Respondent's witnesses described a child who was able to go from class to class independently, to socialize with his disabled and non-disabled peers, and participate in a variety of school activities without extensive supervision. With regard to the difficulties which petitioners may have had in supervising the child at home, it is well settled that difficulties at home do not afford an educational basis for making a residential placement (Application of a Child with a Handicapping Condition, 27 Ed. Dept. Rep. 131; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-6; Application of a Child with a Disability, Appeal No. 95-19).

        THE APPEAL IS DISMISSED.

Dated: Albany, New York __________________________
August 17, 1995 FRANK MUŅOZ

1  The child had been placed by petitioners in the Four Winds Hospital in Katonah, New York, a private psychiatric treatment facility, approximately three months before petitioners requested the impartial hearing which was held in this proceeding.  However, on November 1, 1994, during the pendency of this proceeding, the child was adjudicated to be a juvenile delinquent by the Honorable Damian J. Amodeo of the Dutchess County Family Court, who directed that the child be placed in the custody of the Dutchess County Department of Social Services and that he be placed by that agency for a period of no more than twelve months in the Devereux School, a private residential school for children with disabilities which is located in Red Hook, New York.