The State Education Department
State Review Officer

No. 97-37


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 City School District of the City of Tonawanda

Allen, Lippes and Shonn, Esqs., attorneys for petitioners, Karen Curtin, Esq., of counsel

Norton, Radin, Hoover, and Freedman, Esqs., attorneys for respondent, Bernard B. Freedman, Esq., of counsel



        Petitioners appeal from the decision by an impartial hearing officer which upheld a recommendation by respondent's committee on special education (CSE) that their son continue to be educated in respondent's high school during the 1996-97 school year, rather than in an out-of-district placement as petitioners had requested. The appeal must be dismissed.

        Petitioners' son is nineteen years old. The boy was reportedly diagnosed as having a seizure disorder at an early age. At the hearing in this proceeding, the boy's private psychologist testified that the boy had been medically treated for the disorder, and that he had been seizure-free for some time. When tested in 1990, the boy had achieved a verbal IQ score of 79, a performance IQ score of 88, and a full scale IQ score of 83. In 1994, he achieved a verbal IQ score of 93, a performance IQ score of 68, and a full scale score of 78. The boy had achieved standard scores of 59 for receptive language, and 50 for expressive language when he was tested in 1992. The psychologist testified at the hearing that petitioners' son continued to have significant difficulty processing and expressing language, as in combining words into sentences. The psychologist noted in a report which he prepared in October, 1996 (Exhibit B) that despite the boy's difficulties in word finding, sentence construction, and verbal fluency, he displayed good pragmatic language skills. The psychologist attributed the boy's success in that area to the speech/language therapy which the boy had received. In 1990, the psychologist reported that the boy exhibited average verbal learning and short-term memory skills, but he had deficits in his short-term visual learning skills. The psychologist also reported that the boy's problem solving and reasoning skills were deficient, and that he had significant difficulty sustaining his attention.

        When he was re-evaluated by the psychologist in October, 1996, the boy exhibited extremely deficient tactile kinesthetic functioning. The psychologist opined that the boy would require considerable "over-training" in order to establish his mechanical skills. Although the boy's long-term visual memory skills were in the low-average range, his long-term verbal memory skills were in the deficient range. The boy showed relative strength in his non-verbal problem solving skills. The psychologist concluded that the boy had a learning disorder which was secondary to his epilepsy. Petitioners' son has been classified by the CSE as other health impaired (see 8 NYCRR 200.1 [mm][10]). His classification is not disputed in this proceeding.

        Petitioners' son has apparently been educated in respondent's schools since he was five years old. The record which is before me reveals little about what special education services the boy received at any time prior to the 1995-96 school year. I note that respondent's school psychologist testified that the boy had been educated in self-contained special education classes prior to entering high school. During the 1995-96 school year, the boy was enrolled in an "integrative" program in respondent's high school. The boy's special education teacher, Ms. Robin Gleason, testified that petitioners' son attended regular education classes for English 10, mathematics, global studies, science, and introduction to occupations. However, the English, mathematics and global studies courses were "modified" courses because they were taught by a special education teacher. Ms. Gleason testified that petitioners' son had earned passing grades in each of his courses during the first quarter of the school year. However, the boy reportedly earned failing grades in English, mathematics and science during the second quarter of the 1995-96 school year. In the third quarter of the school year, the boy passed each of his subjects, except global studies and mathematics. Ms. Gleason testified that the boy's third quarter grade for mathematics was 31.

        Ms. Gleason and respondent's school psychologist testified that the boy's mother had spoken to them in March, 1996, about her son's growing frustration in attempting to keep up with his academic work. The boy reportedly disliked staying after school to receive tutoring. Ms. Gleason testified that she tutored the boy in mathematics for 20 minutes each day around lunch time from March, 1996 through the remainder of the school year.

        On April 29, 1996, Ms. Gleason, the school psychologist, the boy's guidance counselor, and the school social worker who was counseling the boy met with the boy's mother in an individualized education program (IEP) planning conference. The participants at that meeting discussed whether respondent's CSE should recommend a different educational program for the boy when it conducted its annual review in May, 1996. The meeting participants reportedly agreed that the CSE should consider recommending that the boy be placed in a self-contained special education class in which the boy could continue to earn "Carnegie" credits to meet the requirement for a local high school diploma (see 8 NYCRR 100.5 [a]+[c]), rather than the requirements for an "IEP diploma" (see 8 NYCRR 100.6). On April 30, 1996, Ms. Gleason prepared a written recommendation to that effect for respondent's Director of Special Education (Exhibit E). At the time of Ms. Gleason's written recommendation, petitioners' son was failing mathematics, but he was reportedly passing his other courses (Transcript, page 49).

        The CSE conducted its annual review on May 21, 1996. The boy's mother attended the CSE meeting in the company of her attorney. The minutes of the CSE meeting (Exhibit 2) indicated that the boy had passed the Regents Competency Test in Mathematics and the Preliminary Competency Test in Reading, and that he was expected to earn five and one-half Carnegie units by the end of the school year. The CSE minutes also indicated that a standardized achievement test, the Woodcock Johnson Psychoeducational Battery, had been administered to the boy on March 25, 1996. He had achieved standard scores of 87 for basic reading, 93 for reading comprehension, 82 for basic mathematics skills, and 77 for basic writing skills. The social worker who had been counseling the boy recommended that he continue to be counseled during the 1996-97 school year to address his behavioral and emotional needs.

        The CSE recommended that petitioners' son remain classified as other health impaired, but that his educational program be changed to "SC 1:8+1 Academic program in a public school out of the District in 96-97 school year" (Exhibit 2). It also recommended that the boy receive counseling in a small group once per week. The IEP which the CSE prepared for the boy indicated that his classroom behavior did not interfere with learning, and that he required only minimal assistance from support and/or related service personnel. It nevertheless provided for a more restrictive placement for the boy than his placement for the 1995-96 school year. At the hearing in this proceeding, the school psychologist testified that the CSE had discussed the possibility of placing the boy in a self-contained class with a 15:1 child to adult ratio, which would have been less restrictive than the 8:1+1 self-contained class (8 children, a teacher, and an aide) which the CSE recommended. The school psychologist testified that there was no 15:1 placement available within or outside the district which would lead to the boy obtaining a local high school diploma, and that the CSE consequently recommended the 8:1+1 placement. However, she further testified that the CSE had not discussed specific educational programs for the boy at its May 21, 1996 meeting (Transcript January 16, 1997, page 171). The IEP from the May 21, 1996 CSE meeting did not identify a specific placement for the boy. Ms. Gleason testified that she believed that an 8:1+1 class would have been inappropriate for petitioners' son because that kind of class was intended for children who have more severe behavioral or management needs. The CSE minutes indicated that Ms. Gleason recommended that the boy stay in an integrative placement in respondent's district.

        Following the CSE meeting, respondent's Director of Special Education asked his counterparts in four other districts if they had 8:1+1 special education classes. They indicated that their districts did not have those classes. In July, 1996, the child's mother mentioned to the Director of Special Education that a 12:1+1 special education class of the Board of Cooperative Educational Services for the First Supervisory District of Erie County (BOCES) located in the high school of the Amherst Central School District might be appropriate for her son. On July 30, 1996, petitioners and their attorney met with the Director of Special Education and Ms. Gleason to discuss the suitability of the BOCES class for the boy. The BOCES class was reportedly intended primarily for students with communication disorders.

        On August 22, 1996, the CSE reconvened to discuss the proposed BOCES placement. A BOCES representative attended the meeting and described the BOCES program in the Amherst High School. She reportedly advised the CSE that the students in that program who wished to obtain a local high school diploma were mainstreamed, i.e., attended regular education classes, for their academic subjects, and received supplementary special education instruction, as in resource room services, from the BOCES special education teacher during study hall periods (Exhibit 9; Transcript January 17, 1996, pages 104-105). The BOCES representative opined that the BOCES program could meet the boy's IEP needs. The boy's special education teacher, Ms. Gleason, did not attend the CSE meeting. However, the Director of Special Education advised the CSE that Ms. Gleason believed petitioners' son needed additional support from a special education teacher in his academic classes to be successful. The CSE also reviewed the boy's academic performance since its previous meeting in May. The boy had passed all of his tenth grade courses, except mathematics. Petitioners' son spoke to the CSE about his desire to obtain a local high school diploma and his reluctance to remain in respondent's high school.

        The CSE recommended that the boy remain in respondent's integrative program for eleventh grade English, U.S. History and Government, and "guided study skills" during the 1996-97 school year. It also recommended that he receive 30 minutes of individual counseling per week, and 40 minutes of counseling in a small group per week. The IEP which the CSE prepared for the boy included testing modifications such as the use of a calculator, separate locations for tests, having test questions read to him, and having class notes provided to him (Exhibit 10). Respondent approved the CSE's recommendations on September 5, 1996.

        On August 30, 1996, petitioners' attorney requested that an impartial hearing be held because the CSE had changed its May 21, 1996 recommendation of an out-of-district placement for the boy. The hearing did not begin until January 16, 1997, and it concluded the following day. The commencement of the hearing was adjourned for various reasons, at petitioners' request.

        Petitioners' son remained in respondent's high school during the hearing in this proceeding. He was enrolled in eleventh grade English and history courses, and the tenth grade mathematics course in which he had failed the previous school year. The boy was also enrolled in the guided study skills class, and in a BOCES automotive mechanics course. The CSE was scheduled to meet on October 1, 1996 to revise the boy's IEP to include annual goals for mathematics (Exhibit 14). The meeting was postponed at petitioners' request because their son was about to be re-tested by the private psychologist.

        On October 15, 1996, the CSE met with petitioners and their attorney. The CSE amended the boy's IEP to delete the reference to having the boy provided with class notes as a testing modification, but to provide elsewhere in the IEP that the boy receive class notes. The CSE also amended the IEP to provide that the boy would continue to receive special education instruction in his mathematics course, which the August 22, 1996 IEP had not addressed, but which had reportedly been provided to him since September. The minutes of the CSE meeting reveal that the petitioners questioned the boy's transition plan (see 34 CFR 300.346 [b] and 8 NYCRR 200.4 [c][2][v]) which was annexed to their son's IEP, but the plan was apparently not changed. Having reviewed the boy's progress to date, the CSE recommended that he remain in respondent's integrative program. Respondent approved the CSE's recommendation on November 7, 1996.

        In her decision which was rendered on March 13, 1997, the hearing officer noted that petitioners had raised procedural and substantive objections to the CSE's decision to abandon its May, 1996 recommendation, to obtain an out-of-district placement for their son, and to recommend that he remain in respondent's integrative program for the 1996-97 school year. Specifically, petitioners challenged what they believed to be their inability to be equal participants in the process by which the CSE made its recommendations, and they challenged the validity of the CSE's August 27, 1996 recommendation because their son's special education teacher did not attend the CSE meeting on that date. They also questioned the appropriateness of their son remaining in the special education program in which he had struggled so hard during the 1995-96 school year. The hearing officer dismissed petitioners' contention that they had not been permitted to play an active role in the process of preparing and revising their son's IEP. She also found that respondent had not violated the regulatory requirement that the child's teacher attend the CSE meeting on August 22, 1996, because the school social worker who had been providing the related service of counseling to the boy attended the CSE meeting and could function as the boy's teacher. The hearing officer found that respondent had not always implemented the testing modifications which his IEPs provided for, and she found that respondent needed to develop a transition plan for the boy. However, she found that the educational program which the CSE ultimately recommended for petitioners' son was appropriate to meet his special education needs, and it was consistent with the requirement that the boy be educated in the least restrictive environment.

        Petitioners challenge a procedural ruling by the hearing officer which precluded them from raising the issue of the adequacy of their son's transition plan at the hearing. The hearing officer sustained respondent's objection to petitioners' cross-examination of the school psychologist about the boy's transition plan. The hearing officer did so on the grounds that petitioners' attorney had not indicated that the boy's transition plan was at issue when she requested that a hearing be held, and she had not raised it in her opening statement at the beginning of the hearing. Although the hearing officer rendered her decision prior to the 1997 amendment of the Individuals with Disabilities Education Act (20 USC 1400 et seq), I note that the Federal statute has been amended to require parents and their attorneys to adequately disclose the nature of their complaints to school districts (20 USC 1415 [b][7]). Petitioners contend that the hearing officer's ruling was inconsistent with her final decision which ordered the CSE to prepare a transition plan for their son. While I am inclined to agree with petitioners that the hearing officer's ruling was an overly restrictive application of the "five-day disclosure rule" (8 NYCRR 200.5 [c][9]), I nevertheless conclude that they are not aggrieved by her ruling because of the hearing officer's final decision requiring the CSE to prepare a transition plan. As the hearing officer noted, Federal and State regulations require that the IEP of a student aged fifteen years or older must include a statement of needed transitional services to prepare the student to make the transition from school to post-school opportunities. I have examined the IEPs from the August 22, 1996 CSE meeting (Exhibit 10) and the October 15, 1996 CSE meeting (Exhibit 20), and I concur with the hearing officer's decision to require that a transition plan be prepared. However, it does not follow that respondent has failed to provide a free appropriate public education to the boy (Application of a Child with a Disability, Appeal No. 97-35).

        I have considered petitioners' argument that they were not afforded an opportunity to vote at CSE meetings, or to be equal participants in the development of their son's IEPs. A CSE must afford a student's parents a meaningful opportunity to participate in the development of the student's IEP (Application of a Child with a Disability, Appeal No. 96-31). The official interpretation of the Federal regulations implementing IDEA indicates that:

"The parents of a child with a disability are expected to be equal participants along with school personnel, in developing, reviewing and revising the child's IEP. This is an active role in which the parents (1) participate in the discussion about the child's need for special education and related services, and (2) join with the other participants in deciding what services the agency will provide to the child" (34 CFR Part 300, Appendix C, Question 26).

        While referring to that interpretation, the Office of Special Education Programs of the U.S. Education Department has nevertheless opined that:

" … we recognize that the desired consensus among equal participants is not always possible. Where an open discussion does not lead to agreement on the contents of the IEP, the local educational agency has the ultimate responsibility for crafting the IEP" (EHLR 211:436).

        Having reviewed the testimony of the various participants at the CSE meetings in question, I find that petitioners were afforded the opportunity to make their views known, and to comment upon the boy's IEP (Transcript, January 16, 1997, page 169; January 17, 1997, pages 147, 203, 229). Therefore, I find that their argument is without merit.

        Even if I were to assume, as petitioners argue, that the action taken by the CSE at its August 22, 1996 meeting was invalid because the child's teacher was not at the meeting, it does not follow that the hearing officer's decision should be annulled. A CSE may always reconsider its recommendations for a child (Application of a Child with a Disability, Appeal No. 96-30). The CSE did so in this case at its October 15, 1996 meeting. Petitioners do not dispute the composition of the CSE at that meeting. The IEP which was prepared at that meeting superseded the boy's prior IEPs (Application of a Child with a Disability, Appeal No. 97-58).

        Petitioners challenge the hearing officer's decision as internally inconsistent for holding that respondent's educational program was appropriate for their son, while also ordering that his IEP be amended to place him in a language-based academic program recommended by the boy's private psychologist. However, I find that the hearing officer did not order the CSE to amend the boy's IEP to place him in a language-based program. Furthermore, the private psychologist testified that the boy should be in a more vocationally oriented program, with the goal of obtaining an IEP diploma.

        In essence, the CSE determined that in light of the boy's largely successful completion of his courses during the 1995-96 school year, he should remain in the same educational program for the 1996-97 school year. That educational program which would have continued to provide him with primary special education instruction in his academic subjects was reasonably calculated to confer an educational benefit upon the boy. It was more likely to afford him a reasonable chance of achieving his IEP annual goals than the BOCES program favored by petitioners because in the BOCES program he would have received only a limited amount of supplementary special education instruction. At the time of the hearing, the boy was reportedly enjoying success in his academic and vocational courses (Transcript January 16, 1997, page 66; January 17, 1997, page 266).

        I have considered petitioners' other arguments which I find to be without merit.






Dated: Albany, New York __________________________
March 13, 1998   FRANK MUŅOZ