The State Education Department
State Review Officer

No. 96-74



Application of a CHILD WITH A DISABILITY, by his 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

Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, Michael Hanan, Esq., of counsel



        Petitioner appeals from the decision of an impartial hearing officer which upheld a recommendation by respondent's committee on special education (CSE) that petitioner's son be transferred from respondent's modified instructional services-I (MIS-I) program to its more restrictive specialized instructional environment-VII (SIE-VII) program for the 1996-97 school year. The appeal must be dismissed.

        At the outset, I note that respondent acknowledges that its answer to the petition in this appeal was served approximately 20 days beyond the 10-day period prescribed by the State regulation (see 8 NYCRR 279.5). It asserts that the answer was delayed because of an administrative error, and that in any event, petitioner has not been prejudiced by the delay since her son has remained in his MIS-I placement. I also note that both parties agreed to extend the time in which my decision was to be rendered in this appeal. In the absence of any prejudice to the petitioner, I will excuse respondent's delay (Application of a Child with a Disability, Appeal No. 96-53).

        Petitioner's son, who will be ten years old this month, entered kindergarten in September, 1991. Following his evaluation by the CSE in January, 1992, the boy was identified as a child with a disability, and he was placed in respondent's modified instructional services-IV (MIS-IV) program. The record does not reveal the classification which the CSE recommended for the child. He received speech/language therapy while in the MIS-IV program. The child reportedly had behavioral difficulties in kindergarten, for which he received the related service of counseling. The record does not disclose whether he continued to receive counseling after kindergarten.

        The child's individualized educational program (IEP) indicates that when he was psychologically evaluated in March, 1995 while still in the MIS-IV program, the boy was found to have mildly deficient cognitive skills, and his perceptual skills were reported to be at a level commensurate with his cognitive skills. He was described as immature and distractible, but he was reported to have a normally developed personality. At about the same time, the child's speech/language therapist reported that the boy had a speech articulation disorder, which made his speech occasionally difficult to understand. The child reportedly became frustrated when not understood, and had difficulty following directions, completing assignments, and attending to task. The speech/language therapist also reported that the child had deficits in his expressive and receptive language skills.

        In March, 1995, an educational evaluator reported that the child had achieved grade equivalent scores of 1.8 in word identification, 1.6 in passage comprehension, K.0 in mathematical calculation, and K.1 in mathematical applications. His knowledge of science, social studies, and the humanities was reported to be at the kindergarten level. The child's oral comprehension skills were reported to be at the first grade level. The child reportedly had a deficit in his ability to recall facts, and was reported to be unable to compose simple sentences. At the time of his evaluation, the child was eight years old, and in the second grade.

        The child remained in the MIS-IV program until the end of the 1994-95 school year. In September, 1995, he entered the MIS-I program in P.S. 197, because he had aged out of the MIS-IV program. At the hearing in this proceeding, the CSE representative testified that the CSE had considered placing the child in the SIE-VII program in September, 1995, but it had concluded that such a placement was too restrictive for the child. A class in the MIS-I program has no more than fifteen children and one teacher, while a SIE-VII class has no more than twelve children, with a teacher and an aide.

        The child's teacher during the 1995-96 school year testified at the hearing in this proceeding that the child had been involved in a series of altercations with his classmates, including incidents in which petitioner's son choked other children, and on at least one occasion, banged another child's head on the ground. He testified that the child was easily "set off", i.e., provoked, if he was corrected or was unable to accomplish something, for example, being tagged out while playing baseball. The teacher also testified that:

" Once he's [the child] set off for the day, then you're done for the day, the entire day. It's almost impossible to get him back again." (Transcript, page 44)

        According to his teacher, the child screamed and cried every day. He testified that the child's classmates ignored the child's outbursts as long as they were not directed at them. The teacher further testified that the child's behavior interfered with his ability to learn. He noted that he had observed the child working on mathematics with the individual aide who had been assigned to him on a temporary basis, and he testified that the child would not, or could not, do his work, even with the aide. The teacher also testified that he attempted to modify the child's behavior by offering incentives to the child, such as stickers or additional time in the gymnasium, in return for positive behavior. However, the teacher's use of behavior modification techniques with the child was reportedly unsuccessful.

        The child's anecdotal record reveals that he was reportedly involved in numerous altercations with other students in school from October, 1995 through January, 1996. Petitioner's son was reportedly involved in three altercations on his school bus during the period from November, 1995 to January, 1996. In January, 1996 the child was suspended from school for five days, because he reportedly bit another student. On January 17, 1996, the lead teacher in the afterschool center which the boy had been attending indicated that the boy would no longer be allowed to attend the center because his behavior had become a threat to the safety of her staff and other children in the afterschool program.

        On January 19, 1996, the child's teacher and the teacher's supervisor submitted a "request for individual student intervention" to the CSE. The teacher requested that a crisis management aide be assigned to the child. His supervisor, who had observed the child in the classroom on three occasions, indicated that an individual aide should be assigned to the child for his safety, and that of the other students. I note that the child's teacher testified that the child continued to act out in class, even after an individual crisis intervention aide was assigned to the boy.

        The CSE met with petitioner on January 31, 1996. The record does not reveal what, if any, recommendation the CSE made at the meeting. On March 20, 1996, the CSE recommended that the child be classified as emotionally disturbed, and that he be enrolled in respondent's SIE-VII program. It also recommended that he receive small group speech/language therapy twice per week, and small group counseling once per week, in his new placement. In addition, the CSE recommended that an individual crisis intervention aide be assigned to the child pending his placement in the SIE-VII program. The IEP which the CSE prepared for the child included annual goals which were related to improving his academic and special area skills, as well as goals for his counseling and his speech/language therapy.

        Petitioner, who did not accept this recommendation, met again with the CSE on June 7, 1996, and on June 24, 1996. However, the CSE adhered to its prior recommendation of a SIE-VII placement. On or about August 2, 1996, respondent offered a placement for petitioner's son in its P.S. 231, which is a special education school located within P.S. 180 in Brooklyn, New York.

        The hearing in this proceeding was held on September 5, 1996. Petitioner, who was not represented by an attorney, asserted that she had not received in advance of the hearing copies of the documentary evidence which respondent wished to introduce into evidence, (cf. 8 NYCRR 200.5 [c][9]). However, the CSE chairperson testified that an employee of the CSE had attempted to provide petitioner with copies of the documents, in person, and by mail. The hearing officer ruled that respondent would be allowed to enter its written evidence, but that petitioner would be afforded additional time to respond to that evidence, if she desired to do so. Petitioner did not seek additional time, nor does she challenge that ruling in this appeal.

        As noted above, the child's teacher testified about the boy's behavior in school during the hearing. He testified that the behavior of petitioner's child was atypical for a child in the MIS-I program, and he opined that the program was not meeting the child's needs. An educational evaluator who had formally observed the child once in December, 1995, testified that on that occasion the child was well behaved. However, she further testified that she had frequently been in the boy's classroom during the entire school year, and that she typically observed him just sitting in the classroom "cooling off" after a behavioral incident. When so engaged, the child was not participating in the activities of the class, nor deriving any benefit from being in the class. The evaluator opined that the MIS-I program was not meeting the boy's needs, and that he should be placed in a program which focused upon student behavior.

        A school psychologist who in December, 1995 had updated the child's March, 1995 psychological evaluation testified that the child appeared to be mildly retarded, and that he had difficulty expressing himself, and understanding language. He further testified that his projective testing of the child revealed that the child appeared to have much aggression and anxiety. He opined that the child's cognitive deficits and his academic delays did not account for his behavior in school. The psychologist believed that the child's behavioral difficulties were primarily responsible for his educational delays, and he opined that the boy was emotionally disturbed. He testified that the MIS-I program, which was intended for learning disabled children, was inappropriate for petitioner's son because the boy needed a program which provided both learning strategies and behavior management. With regard to the latter, the school psychologist testified that the child needed a program with more structure than the MIS-I program provided to help him remain focused and to control his impulses. The school psychologist testified that the SIE-VII would provide both academic and behavioral support to the child.

        At the hearing, petitioner indicated that other children had picked on her son, while on the school bus, or in school. She objected to the school psychologist's description of her son as mildly retarded. Petitioner asserted that the child had a learning disability. She also asserted that her son was being seen on a weekly basis by a private psychiatrist, who reportedly had disagreed with respondent's classification of the child's disability. She offered to submit a written statement from the child's psychiatrist. The hearing officer agreed to keep the hearing record open for one week. I note that the record that is before me does not include a statement from the child's psychiatrist.

        In her decision which was rendered on October 6, 1996, the hearing officer held that respondent had met its burden of proof with respect to the appropriateness of placing the child in the SIE-VII program. She premised her holding upon a finding that the child had been unable to function academically in the MIS-I program, even with the assignment of an individual crisis intervention aide. The hearing officer reasoned that the child required a placement in the more restrictive SIE-VII program, and she found that respondent had demonstrated that petitioner's son would be appropriately grouped for instructional purposes in the proposed SIE-VII class in respondent's P.S. 231.

        Petitioner challenges the hearing officer's decision on the ground that respondent allegedly failed to demonstrate that her son would have been placed in the least restrictive environment. She asserts that her son received satisfactory grades while in the MIS-I class, indicating that he was able to do the required work in that class. She further asserts that the child's medication dosage had been changed, and she argues that her son should be re-evaluated by respondent. In addition, petitioner contends that if her child is to be transferred from the MIS-I program to a more restrictive setting, he should nevertheless be placed in a program which is less restrictive than respondent's SIE-VII program.

        The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show 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 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a][1]). 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 instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).

        In her petition, petitioner explicitly challenges only the proposed change in the child's educational program. She does not challenge the appropriateness of her child's classification as emotionally disturbed. Therefore, I am precluded from reviewing the child's classification (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D. N.Y., 1987]). The nature of the child's classification is of some significance, in view of the school psychologist's testimony that the MIS-I program was not appropriate for petitioner's son because it was designed for children with learning disabilities, rather than mentally retarded or emotionally disturbed children. In any event, I note that a psychiatrist who had also evaluated the child found that the boy appeared to be "...over focused on violent and aggressive issues and has great difficulty controlling his own impulses which have become increasingly violent and aggressive" (Exhibit 3).

        I have reviewed the boy's IEP, and I find that it reflected the results of the child's evaluations in its description of his academic, social, physical, and management needs. As noted above, the IEP annual goals addressed the deficits in the boy's academic skills. The IEP also addressed the child's need to improve class-related skills, such as remaining on task, and interacting with his peers in an acceptable manner. While there appears to be little doubt that the child's class-related and academic skills must improve, the question remains whether the program which the CSE recommended for the child was appropriate for him.

        At the hearing in this proceeding, the Principal of P.S. 231 described the SIE-VII program in her school. She testified that, unlike the MIS-I program, the SIE-VII program provides constant supervision of children from the time they arrive on buses in the morning until they leave school on the buses in the afternoon. In addition to a teacher and an aide in each classroom, the SIE-VII program provides the services of two administrators, a crisis management teacher, an aide, and a time-out room to address the child's behavioral needs. Five guidance counselors and five speech/language therapists were available to serve the children in the nineteen SIE-VII classes in P.S. 231. She testified that the behavioral management system used throughout P.S. 231 involves a daily report to the child's parents regarding the child's performance, and it provides that each child would receive more privileges, as his or her performance improved. If appropriate, children in the SIE-VII program could be mainstreamed for instruction in P.S. 231's host school, i.e., P.S. 180.

        The Principal of P.S. 231 also testified about the skills and needs of the children in the SIE-VII class which had been recommended for petitioner's son. She testified that approximately one-half of the class had below average cognitive skills, and approximately two-thirds of the class had below average language skills. Most of the children were reading at the first grade level, and most had mathematics skills at the same grade level. However, two youngsters had kindergarten to mid-first grade level mathematics skills. These skill levels are comparable to those of petitioner's son. Although the principal did not provide much information about the management needs of the children in the class, she did testify that one child required an individual aide. I find that respondent met its burden of proving that petitioner's child would have been suitably grouped for instructional purposes with the other children in the proposed SIE-VII class, as required by 8 NYCRR 200.6 (g)(2).

        Federal regulation requires that each school district provide a continuum of alternative placements for children with disabilities (34 CFR 300.551 [a]). The record reveals that respondent's CSE adhered to the Federal and State requirement that children be placed in the least restrictive environment, when it placed the child in the MIS-I program for the 1995-96 school year. However, the child was unable to control his behavior in that setting, even after a crisis intervention aide was provided to him. I have considered petitioner's assertion, which respondent has denied, that the child's academic performance did not suffer during the 1995-96 school year. Although neither party has submitted evidence of the boy's academic performance, such as standardized test results, or a report card, I must note that petitioner's assertion is at sharp variance with the testimony of the child's teacher and the educational evaluator. Each of those witnesses indicated that the boy's behavior seriously interfered with his ability to benefit from instruction. In addition, I have considered the effect which the child's placement in the MIS-I class had on the other children in the classroom (see Daniel R. v. State Board of Education and El Paso Independent School District, 878 F. 2d 1036 [5th Cir., 1989]; Application of a Child with a Disability, Appeal No. 94-23). Those children have a right to be educated in a safe environment. Upon the record which is before me, I find that the placement of petitioner's son in a SIE-VII class would be consistent with the requirement that the child be placed in the least restrictive environment.






Dated: Albany, New York __________________________
February 11, 1997 ROBERT G. BENTLEY