The State Education Department
State Review Officer

No. 00-065




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

Donald A. Lash, Esq., attorney for petitioner

Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, D. Scott Furst, Esq., of counsel



        Petitioner appeals from an impartial hearing officer's decision upholding the recommendation by respondent's committee on special education (CSE) for her son's placement in a specialized instructional environment-III (SIE-III) class in PS 17 during the 2000-01 school year, and denying petitioner's request that respondent place the child in the Howard Haber School. The appeal must be dismissed.

        Petitioner's five-year-old son has been diagnosed as having a pervasive developmental disorder (PDD). He was initially referred to respondent's committee on preschool special education (CPSE) in the spring of 1998 because of concerns about delays in his language and general development. At the time of the referral, the child was enrolled in the Prep School for Babies and Children under the auspices of the Early Intervention Program (Title III-A of the Public Health Law). On July 23, 1998 the CPSE recommended that petitioner's son be classified as a preschool child with a disability and be educated in a 6:1+2 class at the Prep School for Babies and Children. In December 1998 the CPSE recommended that the child have an individual aide. On June 17, 1999, the CPSE recommended an 8:1+4 class for the 1999-2000 school year. The child entered the readiness program of the New York Institute for Special Education (NYISE) in July 1999. Although the CPSE had not recommended an aide for the 1999-2000 school year, an aide was subsequently added to the child's program. The child received individual speech/language therapy three times per week, individual occupational therapy twice per week, individual physical therapy twice per week, and counseling in a group of two once a week.

        A psychologist evaluated the child for the CSE on March 21, 2000. She noted that that the boy appeared to be unable to remain focused, and that he demonstrated severe processing and articulation problems during the evaluation. He also manifested off task, impulsive, and defiant behavior. The child’s partial test composite score of 57 on the Stanford Binet Intelligence Scale: Fourth Edition was in the deficient range. His verbal reasoning standard age score was two standard deviations below the mean, while his abstract/visual reasoning standard age score was one standard deviation below the mean. Petitioner provided information about her son for the Vineland Adaptive Behavior Scale, on which the child achieved age equivalent scores of 3-3 for communication, 2-5 for daily living, 3-9 for socialization, and 3-10 for motor skills. The child was four and one-half years old when tested. The psychologist recommended neurological and psychiatric evaluations be performed because the child showed autistic tendencies.

        A pediatric psychiatric evaluation was performed on April 15, 2000. The psychiatrist reported that the child was very hyperactive and did not pay attention. He did not make eye contact, and perseverated at times. The child appeared to have a low tolerance for frustration. The psychiatrist reportedly initially diagnosed the child as having an attention deficit hyperactivity disorder (ADHD). However, she ultimately diagnosed him as having ADHD, PDD, and a mixed receptive and expressive language disorder. She recommended a full neurological evaluation, as well as a referral to a neurologist for medication management, and an audiological evaluation to rule out any hearing impairment. The psychiatrist opined that the child needed a 1:1 aide in school to control his behavior, and that he should be considered for a school in which his emotional needs could be addressed.

        The CSE met on May 24, 2000, at which time it reportedly recommended that the child be classified as emotionally disturbed and be enrolled in respondent's specialized instructional environment-VII (SIE-VII) program. Petitioner objected to the CSE’s recommendations. The assistant chairperson of the CSE then contacted the examining psychiatrist to obtain a clarification of her evaluation report. The psychiatrist agreed to diagnose the child as having PDD.

        On June 16, 2000, the CSE reconvened to review the psychiatrist’s amended report. The child’s mother participated in the CSE meeting by telephone. The CSE recommended that the classification of petitioner's son be changed to autistic and that he be placed in a 6:1+2 class in respondent's SIE-III program, rather than in the SIE-VII program. The recommended placement was to be on a 12-month basis. The individualized education program (IEP) the CSE prepared for the child provided that he was to receive adaptive physical education, 30 minutes of individual speech/language therapy three times per week, and 30 minutes of group and 30 minutes of individual counseling per week. Annual goals for speech, communication, social/emotional development, self-help skills, and counseling were included on the IEP.

        Petitioner requested an impartial hearing to review the CSE’s June 16 placement recommendation. At the commencement of the hearing on June 21, 2000, the parties agreed to an adjournment so that the boy’s parents could examine their son’s proposed placement at PS 17. The hearing resumed on July 13, 2000. Although petitioner questioned the apparent ease with which the psychiatrist’s opinion had changed to include the diagnosis of PDD, she did not challenge the appropriateness of her son’s classification as autistic. She did contest the suitability of the recommended placement at PS 17. Petitioner asserted that it was inappropriate because the classroom would be located on the fourth floor of a building without an elevator, which would be difficult for her son, who has asthma. She expressed concern about the size of the classroom and degree of supervision which her son would have had in the class at PS 17, because her son ran away unless closely watched. The CSE assistant chairperson appeared to indicate that respondent would be willing to provide an individual aide (Transcript p.17). Petitioner also asserted that the site supervisor at PS 17 had indicated to her that the school used a variant of applied behavioral analysis (ABA) known as "TEAK", which petitioner believed was not intensive enough to meet her son’s needs. She noted that the building was not air-conditioned which required that the program be shifted to another school during the summer. Petitioner also challenged the CSE recommendation on procedural grounds, alleging that the CSE was not validly composed on June 16 because no one from NYISE had participated in that meeting. The IEP from that meeting indicated that a special education teacher had participated in the meeting.

        In his decision dated August 4, 2000, the hearing officer noted that there was no dispute as to the child’s classification, and that the CSE representative had agreed to assign an individual aide to the child. He found that there was no disagreement that the SIE-III or its equivalent was the right program for the child, and that the child’s IEP had addressed the health issue raised by the boy’s mother, i.e., his asthma. While finding that respondent had demonstrated that it could offer a safe and appropriate program for the child at PS 17 and could place him there, the hearing officer ordered the CSE to review the child’s placement by no later than December 15, 2000. The hearing officer further ordered that if the CSE’s review revealed any deficiency related to the child’s safety or educational development, respondent was to place him in the Howard Haber School, at its expense.

        I must briefly note that the hearing officer chose to admit all of the documentary evidence at the hearing as a single exhibit. I find that practice should not be followed in the future because it makes it difficult for the parties and me to identify specific documents.

        Petitioner contends that the hearing officer erred by finding that respondent had met its burden of proof regarding the appropriateness of the SIE-III class at PS 17 for her son. She asserts that her son requires full-day instruction using the ABA methodology because of the severity of his needs, and that respondent’s program would not meet her son’s needs because it did not provide full-day instruction with that methodology. Respondent contends that it demonstrated that the recommended SIE-III class would have provided appropriate instruction to meet the child’s needs, and that he would have been suitably grouped for instructional purposes with other children having similar needs and abilities.

        The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child with a Disability, Appeal No. 93-9); Application of a Child with a Handicapping Condition, Appeal No. 92-7; Matter of Handicapped Child, 22 Ed Dept Rep 487). 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 (Board of Educ. v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 C.F.R. 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, establishes annual goals and short-term instructional objectives which are related to the child's educational deficits and provides for the use of appropriate special education services to address the child's special education needs (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child with a Disability, Appeal No. 93-9).

        Petitioner has not challenged the adequacy or accuracy of the IEP’s description of her son’s special education needs, nor has she challenged the IEP’s annual goals and short-term objectives. I have nevertheless examined the IEP, and I find that it accurately reflects the child’s evaluations and reports in the record. I note that the most recent teacher report is from the summer of 1999, approximately one year before the start of the school year in question. The IEP’s description of the child’s present level of academic performance appears to present more current information than is found in the written reports from the NYISE. The IEP indicates that he could say his first and last name when asked, and could identify four body parts by gesture. He could not count by rote or with 1:1 correspondence, and could not say the letters of the alphabet. The IEP indicates that the child was impulsive and required highly intensive supervision. It also indicates that he has asthma, for which he takes medication. The child’s IEP goals and objectives appear to be based upon his present levels of performance in various areas of concern, such as speech, communication, and social and emotional development, and are therefore appropriate.

        The central issue in this appeal is whether the services recommended by the CSE were appropriate to afford the child a reasonable opportunity of attaining his IEP annual goals and objectives. In support of the CSE’s recommendations, respondent presented the testimony of the assistant principal of PS 17, who was familiar with the SIE-III program at the school and who had examined the child’s IEP. The assistant principal testified that the child’s class would be on either the first or the fourth floor of the building. I note that the CSE assistant chairperson testified that the child could be assigned to a barrier-free building if the CSE received a note from the child’s doctor about any physical limitation. The medical report in the record does not include any such limitation. The assistant principal testified that the class was a 6:1+1 class and that the IEP requirement that the child be in a 6:1+2 class could be addressed by having an individual aide assigned to the child (Transcript p. 53). As noted above, the CSE representative appeared to agree to having an aide for the child.

        The assistant principal was questioned about the child’s safety in the classroom and building. The child’s mother and a psychologist who had worked with the child at the NYISE described the child’s management needs to the assistant principal, who testified that the boy’s needs were not atypical of the students in the program. She also explained how petitioner’s concern about her son running away would be addressed. The witness also testified about the appropriateness of the recommended class in terms of the similarity of needs and current levels of performance of the children in the class. Except for a slightly excessive range of ages (cf. 8 NYCRR 200.6 [g][5]), the children appeared to be suitably grouped for instructional purposes. I find that the slight variation does not afford a sufficient basis for annulling the CSE’s recommendation (Application of a Child with a Disability, Appeal No. 99-71).

        The assistant principal was also questioned about the curriculum of the SIE-III. She explained that there was no curriculum for the autistic, and that the curriculum in the SIE-III class was tailored to meet the individual needs of each student. She gave examples of how instruction was provided. The assistant principal was not directly questioned about the extent to which the ABA methodology was used in the classroom. I must note that ABA is not a curriculum, but is a form of behavior modification. There is nothing in the evaluation reports or the IEP which dictated that this methodology be used with the child. As noted above, the central question is whether the recommended special education services would have afforded this youngster a reasonable opportunity of achieving his IEP goals and objectives. The assistant principal was asked about this, and she opined that the child’s goals could be achieved in the recommended class (Transcript pp. 55-56). Although I don’t doubt the sincerity of petitioner’s views on the question, I am constrained to find that there is no basis in the present record for me to conclude that respondent failed to offer an appropriate placement and program to her son for the 2000-01 school year.







Dated: Albany, New York __________________________
February 26, 2001 ROBERT G. BENTLEY