The State Education Department
State Review Officer

No. 98-32



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 Chester Union Free School District

Michael Sussman, Esq., attorney for petitioners, Sheri M. Hatton, Esq., of counsel

Shaw and Perelson, L.L.P., attorneys for respondent, Lisa S. Rusk, Esq., of counsel



        Petitioners appeal from an impartial hearing officer's decision which upheld a recommendation by respondent's committee on special education (CSE) that petitioners' son, who is autistic, should be educated in the Westchester Exceptional Children's School (WECS) for the 1997-98 school year. In doing so, the hearing officer denied petitioners' request that their son be placed in the Boston Higashi School (BHS) which is an approved private residential school located in Randolph, Massachusetts. The appeal must be dismissed.

        Respondent has raised some procedural objections which I will address before reaching the merits of this appeal. Respondent asserts that petitioners failed to serve a notice of intention to seek review, which is required by 8 NYCRR 279.2 (a). In her reply, petitioners' attorney appears to concede that she failed to serve a notice of intention to seek review, but she argues that respondent was aware of petitioners' intention to appeal because a notice with petition was served upon respondent within the 30-day period prescribed by 8 NYCRR 279.2 (a) for service of a notice of intention to seek review. The purpose of the notice of intention to seek review is to alert the board of education of its duty to promptly file the record of the hearing with the State Education Department (Application of the Board of Education of the Florida UFSD, Appeal No. 92-10). In this instance, the hearing record was promptly filed. I find that petitioners' failure to serve a notice of intention to seek review does not afford a basis for dismissing this appeal (Application of a Child with a Disability, Appeal No. 93-45).

        Respondent was initially served with an unverified petition on June 3, 1998. On June 12, 1998, it was served with a verified petition. Respondent alleges that June 12, 1998 was the forty-fourth day after petitioners had received the hearing officer's decision. Section 279.2 (b) of the Regulations of the Commissioner of Education provides that the petition for review of a hearing officer's decision shall be served upon the board of education, school district clerk, or chief school officer within forty days after receipt of the hearing officer's decision. Petitioners' attorney acknowledges that the verified copy of the petition was served four days beyond the regulatory time limit, but she asserts that respondent has not even alleged that it has been prejudiced by the brief delay. I agree, and will excuse petitioners' delay.

        Petitioners' son is thirteen years old. He was reportedly diagnosed as having autism at the Albert Einstein College of Medicine when he was three years old. The child was reportedly enrolled in a therapeutic nursery program for two years while living in New York City. In 1991, petitioners moved to respondent's district. Their son was classified autistic by respondent's CSE on June 17, 1991. The child was enrolled in a self-contained special education class of the Orange/Ulster Board of Cooperative Educational Services (BOCES) for the 1991-92 school year. He continued to attend the BOCES program with petitioners' approval for the next four years.

        In February, 1996, the child's mother requested that the CSE meet with her to discuss the appropriateness of the child's placement at the BOCES (Exhibit 4). She indicated that she was concerned about an alleged lack of progress in containing or extinguishing her son's inappropriate and aggressive behaviors. The CSE met with the boy's mother on March 18, 1996. Thereafter, the child's mother and the CSE chairperson discussed three possible day private school placements for the boy, none of which were recommended by the CSE when it conducted its annual review of the child on June 16, 1996. Instead, the CSE recommended that the child remain in the BOCES program for the 1996-97 school year. Petitioners did not challenge the CSE's recommendation by requesting that an impartial hearing be held.

        The child continued to attend the BOCES program during the fall of 1996. Around the time of the winter holiday vacation, the child's mother noticed that her son was aggressively touching other people in their genital areas while at home, and was exhibiting signs of anxiety. The child returned to school for one day after the vacation. On that day the child's mother corresponded with the child's BOCES teacher, who advised her that the boy had been inappropriately touching others since September, 1996. The CSE met with the child's mother and her attorney on January 28, 1997. The minutes of that meeting (Exhibit D) reveal that the CSE discussed the child's mother's belief that her son may have been sexually abused while attending the BOCES program, and agreed to amend the child's individualized education program (IEP) to provide that he be supervised while walking in the halls at the BOCES. The IEP (Exhibit E) indicated that he was to be accompanied by an adult at all times. The child was seen by a private social worker on a number of occasions to ascertain whether any incident of abuse had occurred. The social worker was unable to determine whether any incident had occurred (Exhibit I).

        It was agreed that the child would return to the BOCES class, and that his mother would accompany him to school and remain with him in the classroom for a few days to help him transition back into full-time attendance at the BOCES. In mid-February, 1997, the child returned to school, but he reportedly became more agitated and was removed from school. On February 27, 1997, he was placed on "home instruction", which meant that he was individually instructed by a special education teacher in respondent's elementary school. He continued to receive instruction at the elementary school until March 7, 1997. Petitioner kept him home for approximately two weeks because he had to be physically restrained for much of the time while in school.

        In late January and early February, 1997, the child received a neuropsychological evaluation at the Mount Sinai Medical Center. The psychologist who performed the evaluation reported that the child had difficulty separating from his mother on two of the three days when the evaluation was conducted. She noted that the child's language was difficult to understand, which made it difficult to ascertain whether his oral responses to questions were correct. On the Wechsler Intelligence Scale for Children - Third Edition, the child achieved a verbal IQ score of 46, a performance IQ score of 82, and a full scale IQ score of 63. The Raven's Coloured Progressive Matrices was administered to him because of the significant discrepancy between his verbal IQ and performance IQ scores. His score on the Raven's, which tests conceptual reasoning without verbal stimuli, was at the 50th percentile, or average range, which the evaluator believed was a more accurate representation of the child's intellectual performance.

        The psychologist reported that the child had a wide range of cognitive difficulties, including attentional problems, impulsive responses, impaired verbal ability, speech production difficulties, expressive and receptive language deficits, and problems processing incoming information. The child manifested relative strength in visuospatial, visuomotor and visuoperceptual ability and visual recall. His scores on the Wide Range Achievement Test - Revision 3 were at the 18th percentile for single word reading, 37th percentile for spelling and .2 percentile for written arithmetic. On the Wechsler Individual Achievement Test, the boy's scores were at the 23rd percentile for spelling, .8 percentile for mathematical reasoning, 1st percentile for reading comprehension, 1st percentile for numerical operations, .8 percentile for listening comprehension, and 2nd percentile for oral expression. The psychologist recommended that the child be placed in a small classroom which provided one-to-one support, firm limits, encouragement and support. She also recommended that behavior conditioning be provided to improve his ability to separate from his mother.

        On March 19, 1997, the CSE met with the child's mother, her attorney, and the private social worker who had been seeing the child, about the alleged incident at BOCES. The CSE discussed whether the child should return to the BOCES class, or continue to be tutored by a special education teacher at respondent's elementary school. It was agreed to continue with the latter as an interim placement pending another placement determination. The child's IEP was amended to reflect the temporary placement, and the parties' agreement that the child's speech/language therapy and occupational therapy would be temporarily discontinued, and his counseling would temporarily change from a combination of individual and group counseling three times per week to individual counseling three to four times per week (Exhibit J). The private social worker who had been working with the boy was engaged by respondent to providing counseling to him. The child resumed instruction with a different teacher at respondent's elementary school on March 24, 1997.

        The CSE reconvened on April 29, 1997 to review the results of the child's neuropsychological evaluation. The child's mother objected to portions of the evaluation report, and requested that an independent evaluation be performed. However, she subsequently withdrew her request (Exhibit D). The child had undergone a neurological evaluation on April 24, 1997. The neurologist noted that the boy had a very mild left facial weakness and some mild weakness in the left hand and leg, and suggested that a MRI and an EEG be performed. The CSE recommended that the boy's "home instruction" program be lengthened to one and one-half hours per day and that he receive individual occupational therapy twice per week (Exhibits K and L).

        The CSE next met with the child's mother, her attorney, and the social worker who was counseling the child on May 27, 1997. The child's teacher reported that he was reading at a third grade level, and that his spelling was at a mid-third grade level. In mathematics, the child was regrouping and renaming, and about to begin multiplication. The teacher also reported that the child's interaction with her had improved, while the social worker indicated that the child felt better about himself and was less distractible. The social worker and a school psychologist discussed how the latter would assume the former's counseling duties with the child. The CSE recommended that the child receive individual counseling once per week, and that his speech/language therapy be resumed on a twice per week basis. It was agreed that the child's mother would visit the WECS on May 29th, 1997, and that the CSE would reconvene on June 5, 1997. The child's mother did visit WECS, but the CSE had to be postponed twice in June because petitioners' counsel was unavailable.

        On July 8, 1997, the CSE met with the child's mother and her attorney to complete its annual review of the child. A neurologist's findings were discussed, as were an updated social history and occupational therapy and speech/language evaluations. Five special education programs outside the Chester school district were discussed as possible placements for the 1997-98 school year. The CSE recommended that petitioner's son be placed in WECS in September, 1997, with individual speech/language therapy three times per week, group speech therapy once per week, individual counseling twice per week, and individual occupational therapy twice per week (Exhibit S). The IEP which was prepared at that meeting specified that the child was to be educated in classes with a 6:1+1 child to adult ratio, and that an aide should accompany him on the bus to WECS (Exhibit Y). For a summer program, the CSE recommended that the child continue to receive "home instruction" for two hours per day at the Chester Elementary School, with individual speech/language therapy twice per week, individual counseling once per week, and individual occupational therapy twice per week. Respondent approved the CSE's recommendations on August 4, 1997.

        By letter to respondent dated August 12, 1997, the child's mother expressed her dissatisfaction with the CSE's recommendation for the 1997-98 school year, and requested that an impartial hearing be held to review the recommendation. The hearing began on September 29, 1997. At the hearing, petitioners contended that the WECS was an inappropriate placement for their child, and that there was no educational facility in New York State for a high functioning child with autism like their son. Their attorney asserted that the BHS was willing to accept the child as a day student and that his mother was contemplating renting an apartment in Boston so that the child could attend BHS. Respondent's representatives suggested that the hearing be adjourned for a brief period to allow them to consider petitioners' proposal that the child attend BHS.

        The hearing resumed on October 14, 1997, and it continued on October 22, 29, and 30, 1997. On October 30, 1997, respondent made a motion for the hearing officer to order petitioners to take the child to WECS to complete an intake process, which the CSE chairperson had requested that they do prior to August 15, 1997 in a letter to petitioners dated July 22, 1997 (Exhibit AA). The chairperson's letter had accompanied a copy of the child's IEP which was prepared at the July 8, 1997 CSE meeting. Respondent's request raised the issue of whether the CSE's recommendation was premature because WECS had not formally accepted the child for admission. The hearing officer reserved decision regarding respondent's motion, and directed the CSE to review the child's pendency placement.

        On December 8, 1997, the hearing officer issued an interim order directing petitioners to allow WECS to complete its intake process, because it would furnish additional information about the appropriateness of a placement in WECS if the school accepted the child. He also directed the CSE to review the results of the WECS's intake process, and make its recommendation for the child's placement. The hearing officer also indicated that the hearing could resume at the request of either party.

        On January 20, 1998, the hearing resumed. The hearing officer was advised that petitioners had not complied with his directive to take the boy to the WECS, so that the private school could complete its intake process and advise the CSE if it would accept the child. He was also advised that the child's pendency placement had not been changed. Petitioner's attorney asserted that petitioners had not appealed from the hearing officer's interim order (cf. 8 NYCRR 279.8 [c]) because they did not want to prolong this proceeding. Respondent's attorney agreed that the hearing officer should render a final decision based upon the record which was before him. Following a further discussion of the issues with the attorneys, the hearing officer announced that:

"I'm going to just rule that the interim order stands, that it's absolutely necessary to complete the process ... I think the district in good faith made a recommendation and it cannot follow - through with that recommendation." (January 20, 1998 Transcript, pages 597-598)

        Thereafter, the child was taken by his mother to WECS. In a letter to the CSE chairperson dated March 19, 1998, the Director of WECS reported that the child had made a satisfactory adjustment to the school during a two-day visit on March 17 and 18 (Exhibit B to respondent's answer). The Director also reported that the child had followed the school's class schedule and readily participated in group academic activities one morning. She indicated that he had read out loud to other students during an integrated whole language session, and his responses to questions were "accurate, but concrete". Although the child tended to play by himself during free-time activities, the Director noted that it was not unusual for some of the school's students to do so. The Director expressed the opinion that an appropriate special education program could be provided for the child at WECS.

        The parties' attorneys and the hearing officer conferred about resuming the hearing to review the Director's letter. However, both attorneys agreed that the hearing should not be resumed. On April 21, 1998, the hearing officer closed the record of the hearing. On April 26, 1998, the hearing officer rendered his final decision, in which he upheld the CSE's recommendation that the child attend WECS. He also found that the day placement at the BHS which petitioners sought was not a viable alternative, and did not meet the criteria for a placement in the least restrictive environment.

        Petitioners contend that the hearing officer erred by finding that respondent had met its burden of proof in demonstrating the appropriateness of the proposed placement in WECS. 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).

        There is no dispute about the child's classification as autistic, and petitioners do not challenge the provisions of the IEP which was prepared for their son by the CSE on July 8, 1997, except for the designation of WECS as the child's placement. I must first note that a CSE's recommendation of a placement prior to a decision by the recommended entity that it will accept the child as a student is premature, and does not satisfy a board of education's obligation to offer a free appropriate public education (Application of a Child with a Disability, Appeal No. 93-15). When respondent's CSE made its recommendation on July 8, 1997 that the child attend WECS during the 1997-98 school year, the child had not been accepted by WECS. In a letter to the CSE chairperson dated July 10, 1997, a WECS social worker noted that the school's intake committee had reviewed the written information about the child which it had received from the CSE and the child's mother had visited the school, but that as part of the WECS intake process ... " it is essential for the prospective student to visit for at least two days" (Exhibit 11). Although the CSE chairperson testified that a WECS teacher had opined that WECS could meet the child's needs, there is no evidence in the record before me that WECS had accepted the child when the CSE recommended that he be placed there.

        Although the CSE's recommendation was defective because the child had not then been accepted by WECS, it does not follow that the hearing officer should have ordered respondent to place the child in the BHS. The hearing officer was aware of his responsibility to ensure that the child would receive appropriate instruction in the least restrictive setting. He reasonably concluded from the record which was before him that there might be an appropriate placement for the child at WECS, and he directed the parties to complete the school's intake process. I find that the hearing officer did not exceed his authority by requiring that the child be taken to WECS to complete the intake process.

        The intake process was completed in March, 1998, well after the 1997-98 school year had begun. While the WECS Director's letter dated March 19, 1998 does not explicitly use the term admission, I find that her letter is an offer of admission. Petitioners were originally asked by the CSE chairperson to complete the intake process in a letter dated July 22, 1997 (Exhibit AA). Had they done so promptly, the process could have been completed in time for the beginning of school in September, 1997. Petitioners clearly have the right to challenge the CSE's recommendation, but they also have the obligation to cooperate with the CSE so that the CSE can perform its responsibilities. Therefore, I decline to find that respondent failed to offer the child an appropriate placement solely on the ground that the placement was not available when the school year began.

        Petitioners assert that WECS is inappropriate because it reportedly does not have a program for children with autism. They also assert that the CSE's recommendation for placement in WECS is inconsistent with the provisions of 8 NYCRR 200.13 (a)(4) and (6). Those provisions of the Regulations of the Commissioner of Education require that the educational programs of children with autism include instructional services to meet their individual language needs, and that when those students are placed in programs which include students with other disabilities, a special education teacher with a background in teaching students with autism must provide transitional support services to ensure that the student's special education needs are met. I find that petitioners' assertions are not persuasive. Private schools such as WECS are approved by the State Education Department to provide specialized instruction to children with specified disabilities. The WECS has been approved by the State Education Department to teach children with autism. Children who attend WECS are not assigned to classes on the basis of their classification. However, that does not afford a basis for concluding that the placement of a child with autism in WECS would be inappropriate, or that respondent was required to assign a special education teacher to provide transitional support services to petitioners' son in WECS.

        Petitioners assert, and I agree, that respondent was required to show that their son would have been suitably grouped for instructional purposes in WECS with children having similar needs and abilities (8 NYCRR 200.6 [a][3]; 8 NYCRR 200.13 [a]). Typically, a board of education demonstrates the similarity of needs and abilities by offering a class profile, i.e., a chart listing the needs and abilities of the children in the proposed class in accordance with the four criteria set forth in 8 NYCRR 200.1 (jj), or by having a witness testifying about the needs and abilities of those children. In this instance, respondent introduced a class profile (Exhibit JJ) into evidence. The profile described five male students, two of whom were classified as multiply disabled, two of whom were classified as emotionally disturbed, and one student who was classified as emotionally disturbed/learning disabled. Three of the boys were described as having at least low average intelligence, and the other two students were reportedly mildly retarded. The profile indicated that the student's academic achievement ranged from the first-second grade level to the fourth-fifth grade level. Socially, the boys in the proposed class were reported to have difficulty interacting appropriately with peers and/or adults. Two were described as being aggressive and confrontational. All of the boys required intensive support and supervision. Having reviewed the various reports about petitioners' son which are in the record, I find that his needs and abilities were similar to those of the boys in the proposed class for the purpose of instructional grouping. In doing so, I note that instruction in a small class like this in a specialized educational facility is highly individualized.

        Although no representative of WECS testified at the hearing, the CSE chairperson and the school psychologist member of the CSE had visited WECS and they testified about what they had observed at WECS as it related to petitioners' son. I have considered petitioners' other arguments, including their argument that the CSE arbitrarily changed the instructional group size limitation on the boy's IEP from 6:1+2 to 6:1+1 to align with the staffing pattern at WECS, which I find to be without merit. I recognize that both parties were concerned about the traveling arrangements for the child to attend WECS, and I find that the CSE appropriately recommended that a transportation aide be provided. If the CSE chooses to recommend that the boy attend WECS in future years, it may wish to consider sending the child by the most direct route to the school.




Dated: Albany, New York __________________________
April 27, 1999 FRANK MUŅOZ