The State Education Department
State Review Officer
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
New York Lawyers for the Public Interest, attorneys for petitioner, Kimberly B. Sweet, Esq., of counsel
Hon. Michael A. Cardozo, Esq., Corporation Counsel, attorney for respondent, Martin Bowe, Esq., of counsel
Petitioner appeals from an impartial hearing officer's decision upholding the recommendation of respondent's Committee on Special Education (CSE) to change the classification of petitioner's son from learning disabled to mentally retarded and to place the student in a special education class for mentally retarded students at respondent's I.S. 143. The appeal must be sustained in part.
At the time of the hearing during the middle of the 2001-02 school year, petitioner's son was 14 years old and in an eighth grade modified instructional services-I (MIS-I) special education class with a 12:1 student to adult ratio at I.S. 90. He had been classified as learning disabled and reportedly placed in a 12:1 special education class since 1995. During the 2000-01 school year, he was reportedly absent on 56 days and tardy on 102 days (Transcript p. 65).
In March 2001, the student's triennial educational evaluation was performed. The evaluator reported that the student was difficult to understand at times because he placed his hand over his mouth. He could recognize all but one uppercase and three lowercase letters of the alphabet, and could count by rote to 100 and count objects up to 12. On a word recognition test, he could orally read only two of ten words from a pre-primer word list, and he was unable to attempt any response on a passage comprehension subtest. His estimated instructional level for reading was pre-primer. He achieved a standard score of 50 and a percentile rank of <0.1 for mathematics, for an estimated instructional level of beginning second grade. The student could write his name but little else; and he was found to be delayed in all academic areas (Exhibit 4).
When evaluated by a psychologist in March 1995, petitioner's son obtained a verbal IQ score of 66, a performance IQ score of 65, and a full scale IQ score of 63, which was reported to be in the mildly deficient range. He exhibited an approximate three-year delay in his visual motor skills. The psychologist noted that there was a significant scatter in the student's IQ subtest scores and that projective testing revealed that he had significant emotional concerns. She speculated that the latter could be impairing his intellectual functioning (Exhibit 11).
The student's triennial psychological evaluation was performed during two sessions on February 27, 2001 (Exhibit 7) and March 26, 2001 (Exhibit 9). At the first session, the student completed only part of the IQ test. The evaluator described the student as being "affectively deprived", and indicated that the existence of clinical depression was highly suspected. The evaluator also indicated that the student's "extremely low level of motivation seems to be playing a very important role in his inadequate cognitive development and learning in school" (Exhibit 7). During the second session, the student was quiet and distant, but nevertheless presented a better attitude than he did at the first session. He evidenced difficulty in long-term and short-term memory. He obtained a verbal IQ score of 60, a performance IQ score of 60, and a full scale IQ score of 56, in the mildly deficient range. The school psychologist noted that the student's self-confidence and self-esteem were probably very low and affected his cognitive development (Exhibit 9).
In April 2001, respondent's CSE reportedly recommended that the student's placement be changed to a more restrictive setting. However, petitioner did not accept the CSE's recommendation, and unsuccessfully attempted to secure an alternative placement for her son (Transcript p. 64). The student remained in his MIS-I class at I.S. 90, and began the 2001-02 school year in that placement. On November 13, 2001, respondent's CSE recommended a change in the student's classification from learning disabled to mentally retarded and a change in the child's placement from a 12:1 MIS-I class to a 12:1+1 class, because the student's needs were reportedly not being met in his MIS-I class. It further recommended that he receive 40 minutes of individual and 40 minutes of group counseling per week. The individualized education program (IEP) that the CSE prepared for the student indicated that the student had still not developed basic oral reading, spelling and computational skills, and had difficulty expressing himself in writing, and it included annual goals for reading, writing and mathematics (Exhibit 17). The IEP also included an annual goal for improved adherence to school policy and regulations, one of the short-term objectives for which was to improve his ability to arrive at school on time. Thereafter, petitioner was offered a placement for her son at I.S. 143, which is her son's neighborhood school (Transcript p. 77).
Petitioner did not accept the CSE's recommendations, and requested that an impartial hearing be held. The hearing began on December 18, 2001. Petitioner was not represented by an attorney. Following a discussion with petitioner about obtaining an attorney, the hearing officer adjourned the hearing until January 22, 2002 to afford her an opportunity to obtain counsel. On January 22, 2002, petitioner again appeared before the hearing officer without counsel. The record does not indicate that petitioner sought an additional adjournment, and the hearing was completed on that day. Petitioner indicated that she did not like the label of mentally retarded for her son. She asserted that she had visited the proposed class in I.S. 143, and that it was unsatisfactory because her son was more advanced than the students in the proposed class.
In a decision dated February 7, 2002, the impartial hearing officer found that documentary evidence and testimony in the record supported the CSE's recommendation to classify the student as mentally retarded. With respect to the proposed placement at I.S. 143, the hearing officer noted that petitioner had unsuccessfully attempted to place her son in another school. Without specifically finding the placement would be appropriate for the student, the hearing officer ordered that he be placed in the recommended 12:1+1 special education class at I.S. 143, with services of an individual aide for three months to assist him in transitioning to that class.
Petitioner asserts that she was forced to proceed without an attorney at the hearing because she could not afford to hire one. However, she does not allege, nor does the record show, that she sought an additional adjournment to obtain counsel. The procedural safeguard notice that respondent should have provided to petitioner would have informed her of her right to request information relating to obtaining free or low-cost legal services at no cost to the school district (8 NYCRR 200.5[f][xv]). In any event, neither federal nor state law requires that a parent be provided with free legal assistance in a due process proceeding (Application of a Child with a Disability, Appeal No. 97-84).
Petitioner challenges the appropriateness of the CSE's recommendation to classify her son as a student with mental retardation. A board of education bears the burden of establishing the appropriateness of the classification recommended by its CSE (Application of a Child with a Disability, Appeal No. 94-16; Application of a Child Suspected of Having a Disability, Appeal No. 94-8; Application of a Child with a Handicapping Condition, Appeal No. 92-37). In meeting its burden of proof, a board of education must show that a child who is to be classified as a student with mental retardation has, "… significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a student's education performance" (8 NYCRR 200.1[zz]).
Petitioner argues that respondent cannot meet its burden of proof by simply relying upon evidence of his poor academic functioning. She contends that in both the 1995 and 2001 psychological evaluations of the student, the evaluator expressed caution about identifying the student as mentally retarded in light of his manifestation of emotional concerns (Exhibits 11, 7, 9). Petitioner also contends that the classification of mentally retarded cannot be supported by the results of the Vineland Adaptive Behavior Scale for which petitioner provided the information on March 20, 2001 (Exhibit 8). The student's standard scores on the Vineland were 51, for communication skills, 63 for daily living skills, and 78 for socialization skills, for an adaptive behavior composite standard score of 59, which is considered to be in the mildly deficient range.
The student's academic performance is significantly below that of his chronological peers. His absences and tardiness for a significant portion of the instructional day is a serious matter which respondent should address. However, it would not appear to be the sole reason for the major deficits in his basic academic skills. The student's scores on the Vineland Adaptive Behavior Scale are not directly related to academic achievement, and they are consistent with the results of his cognitive testing. The latter results are in the mentally retarded range. The 1995 and 2001 psychological reports suggested that the student may have emotional difficulties that could have affected his cognitive development. However, the issue to be determined is how does the student presently function so that appropriate educational programming can be provided to him. On the present record, it is clear that the student is functioning in the mentally retarded range. The CSE's recommendation that petitioner's son should be classified as mentally retarded must therefore be upheld.
Petitioner also challenges the CSE's recommendation to place her son in a 12:1+1 special education class at I.S. 143. A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 ). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 ). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]).
An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Petitioner does not challenge her son's IEP goals, but she contends that respondent failed to demonstrate how her son would achieve those goals in the recommended 12:1+1 class in I.S. 143. Respondent argues that the testimony by the teacher of the recommended class demonstrated the appropriateness of the class for petitioner's son.
Upon review of the teacher's brief testimony (Transcript pp. 72-78), I must find that it is insufficient to carry respondent's burden of proof. Petitioner's son is presently in a special education class designed for learning disabled students, a class that has proven to be academically inappropriate for him. Respondent's CSE has recommended a new educational program for the student that would presumably afford him an opportunity to achieve his IEP goals. The teacher of the recommended special education class testified that she ascertains what her students need, and often provides instruction to the students in groups or individually. She indicated that it was important for her students to work on social skills. She also testified that there were an educational paraprofessional, two health aides and two computers in her classroom. The teacher did not, however, explain how she would specifically address this student's educational needs. The teacher testified that petitioner's son would fit in with her other students, at least some of whom are mentally retarded (Transcript p. 73). She did not provide any detailed information about the similarity of her student's needs to those of petitioner's son, nor did respondent introduce a class profile into evidence. Such information was necessary to establish that the student would have been suitably grouped for instructional purposes in accordance with the provisions of section 200.6(a)(3) of the Regulations of the Commissioner of Education. Although the recommended placement at I.S. 143 may have in fact been appropriate for petitioner's son, I am compelled to find that respondent failed to demonstrate that it was appropriate at the hearing.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the decision of the hearing officer is hereby annulled to the extent that it ordered respondent to place petitioner's son in the class that had been recommended for the student; and
IT IS FURTHER ORDERED that within 30 days after the date of this decision, respondent's CSE shall recommend an appropriate placement for the student in accordance with his needs and with the terms of this decision.
Albany, New York
April 29, 2003
JOSEPH P. FREY