90-005

Petitioner appeals from the determination of an impartial hearing officer which found that the 1989-90 school year placement of petitioner's son in a self-contained special education class operated by the Board of Cooperative Educational Services for Franklin, Essex and Hamilton Counties (BOCES) in the Tupper Lake High School was appropriate. The appeal must be sustained.

Petitioner's son, who is 18 years old, has Down Syndrome. He was classified as mentally retarded upon his entrance into respondent's school system in 1983. The student's classification is not in dispute in this appeal.

During the 1989-90 school year, the student was placed in a special class consisting of 9 students who were taught by one teacher with the assistance of three teaching assistants. Two of the teaching assistants were assigned to specific pupils in the class. Petitioner's son received speech therapy three times each week, and counseling once a week. The student's class is known as an "Option II" class. Pursuant to state regulation, an Option II class is one in which the size of the class shall not exceed 12 students and one adult, in addition to the teacher, and is required because of the management needs of the students, (8 NYCRR 200.6(f)(4)(i)).

Petitioner's son was enrolled in the same Option II class during the 1988-89 school year when it was located in Lake Placid, New York. The class was relocated to Tupper Lake for the 1989-90 school year. Prior thereto, and until the conclusion of the 1987-88 school year, the pupil was educated in an Option II class located within his own school district of Saranac Lake. However, the Saranac Lake class was intended for younger students, and was not appropriate for petitioner's son after the 1987-88 school year.

On March 27, 1990, petitioner requested that an impartial hearing be held to review his son's placement in the Tupper Lake program. Petitioner was concerned for his son's lack of academic progress and increasing behavioral problems in the classroom. A hearing was held on May 30, 1990, and the hearing officer rendered his decision on July 8, 1990. The hearing officer found that the student's placement was appropriate, but directed respondent to amend the student's individualized education program (IEP) to include vocational training or on-the-job training for a minimum of two hours per day for five days a week.

Petitioner maintains that the hearing officer erroneously concluded that petitioner's only objection to his son's placement was that the class is located 22 miles from his home. Petitioner asserts that his son's class is inappropriate, because his son was not provided with opportunities for mainstreaming with non-handicapped peers and has become more aggressive and disruptive because other students in the class are inappropriate role models.

Respondent argues that the hearing officer correctly determined that the student's placement is appropriate to his needs and that placement in a different type of class, such as an Option I class with a teacher but no other adult, would not be appropriate for the student.

It is well settled that a board of education bears the burden of establishing the appropriateness of its program (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Matter of Handicapped Child, 23 id. 415; Matter of Handicapped Child, 25 id. 353; Application of a Child with a Handicapping Condition, 27 id. 335; and Application of a Child with a Handicapping Condition, 29 id. 83). An appropriate placement is one which is reasonably calculated to enable a child to receive educational benefits (Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176).

The central issue in this appeal is whether petitioner's son was appropriately grouped with the other pupils in the Tupper Lake class. 8 NYCRR 200.6 (f)(2) requires that the composition of a special education class shall be based upon the individual needs of the pupils. Four factors are to be considered: the pupils' levels of academic achievement and learning characteristics, their levels of social development, their levels of physical development, and their management needs. The record includes a profile of all of the pupils in the class, as well as testimony by their teacher as to the comparability of their development levels and management needs. The achievement levels of all of the pupils in reading and mathematics are at the first or second grade. There are no significant differences in their levels of physical development. However, there are important differences in their levels of social skills and management needs. The term "serious difficulties" is used to describe the social skills and development of four of the other pupils in the class. Their management needs are described as critical if they are to benefit from instruction. The former and present teachers of a fifth student testified as to the pupil's serious management needs.

The teacher of petitioner's son for three of the five years he attended school at Saranac Lake described petitioner's son as well behaved and obedient to verbal discipline, and able to work consistently without behavioral outbursts. The student's teacher for the 1988-89 and 1989-90 school years testified that he exhibited inappropriate behavior of a sexual nature at the beginning of the 1988-89 school year, but that such behavior had diminished and been replaced by more aggressive physical behavior. The teacher stated that the pupil's physical behavior had resulted in his being physically restrained on an average of once or twice a month. The record suggests, although it is not clear, that when the pupil becomes physically aggressive, he kicks or strikes furniture. His social skills are described in the class profile as often inappropriate and moody, and he is further described as having a poor self-image. The class profile lists the pupil's management needs as requiring added supervision to protect him from hurting himself and others when he acts out.

Although petitioner's son clearly has some management needs, the testimony of his present teacher did not reveal clear evidence of a pupil in need of an educational program with an emphasis on behavior modification, including the use of physical restraints. The management needs of at least five of the other students in the class detract from the opportunity for petitioner's son to benefit from instruction. The other students do not provide the social role models necessary to improve the social skills of petitioner's son, as recommended by the school psychologist. To the extent that physical restraint is required as a management device, the social interaction within the group is not beneficial to petitioner's son and does not contribute to his growth and maturity (8 NYCRR 200.6 [a][3][ii]). I find that petitioner's son has not been placed in a program which is appropriate to his needs, because a majority of the students in his class have management needs which are significantly more severe than those of petitioner's son. I also note that his academic progress has been minimal during the 1989-90 school year. Although the 1989-90 school year has concluded, the record shows that the CSE has recommended that the pupil continue in the same class for the 1990-91 school year. The record also demonstrates that these pupils have been together for some years and are likely to be together for the 1990-91 school year.

The CSE must also re-examine the pupil's program because the Phase I IEP developed for him for the 1990-91 school year is not adequate to meet his special educational needs in that it does not address his independent living, vocational and language needs. Prior to developing a new IEP, the CSE must provide for a current language assessment, vocational assessment and a measure of the pupil's adaptive behavior (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 53). Appropriate speech/language services should be focused on the pupil's communications needs in a special class setting, as well as developing his social and vocational skills. Activities to develop his living and self-help skills should be a major part of his academic curriculum, in conjunction with a vocational program which is based upon the results of a vocational assessment.

An appropriate program for this pupil should reflect a balance of the least restrictive environment with academic and vocational benefit. Although the CSE must take into account the proximity of a proposed program to the student's home pursuant to 8 NYCRR 200.6(a)(1) and 8 NYCRR 200.1(f), a student need not be placed in a school close to his home if such a placement would be inappropriate to the student's special educational needs (Application of a Child with a Handicapping Condition, 27 Ed. Dept. Rep. 160).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is annulled; and

IT IS FURTHER ORDERED that within 30 days after the date of this decision respondent's CSE shall prepare a new IEP for petitioner's son and recommend a new placement for the student, in accordance with the provisions of this decision.