90-017

Petitioners appeal from the determination of an impartial hearing officer which modified the recommendation of respondent's committee on special education (CSE) that petitioners' child be educated for the 1990-91 school year in a special education class of the Livingston-Steuben-Wyoming Counties Board of Cooperative Educational Services (BOCES) in Geneseo, New York, by ordering that the pupil attend such program for three days each week and attend a special education class of the Wayland Central School for two days each week. Respondent Board of Education of the Wayland Central School District cross-appeals from the decision of the hearing officer, to the extent that said decision modified the recommendation of its CSE. The appeal must be sustained and the cross-appeal must be sustained in part.

Petitioners' sixteen year old child has Down Syndrome. The pupil has been classified as mentally retarded and has been educated in a self-contained special education class since her entry into respondent's schools in 1980. There is no dispute as to the pupil's classification.

In June, 1988, the CSE recommended that the pupil attend a BOCES special education class for the 1988-89 school year. However, petitioners sought review by an impartial hearing officer and thereafter by the Commissioner of Education of the CSE's recommendation. The CSE's recommendation was upheld by an impartial hearing officer, but the Commissioner of Education annulled the hearing officer's decision (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 1). The Commissioner found that respondent had not met its burden of establishing the appropriateness of the recommended program and placement, noting certain deficiencies in the pupil's individualized education program (IEP). The Commissioner also found no basis in the record for concluding that respondent could not adequately provide a program designed to address life skills for petitioners' daughter in the less restrictive environment of an in-district special education class.

The pupil remained in a special education class within the school district during the pendency of petitioners' challenge of the CSE recommendation. The decision of the Commissioner was rendered on July 19, 1989. Before that decision was received by respondent, the CSE recommended that the pupil's placement be changed to a BOCES class for the 1989-90 school year. On September 8, 1989, the CSE met with the pupil's mother to revise the pupil's IEP for the 1989-90 school year pursuant to the Commissioner's decision. The CSE recommended that the pupil continue to remain in an in-district special education class for 1989-90. In accordance with the Commissioner's decision, the pupil's IEP goals were revised to be more specific as to the needs of the pupil and provision was made for a vocational assessment to be performed. Although a vocational assessment was completed on September 20, 1989, there is no evidence in the record that the CSE took any action to implement the suggestion of the evaluator that the pupil be enrolled in a practical mechanics and service occupations program of the BOCES as a prerequisite for entry into a specialized occupational training program.

On March 15, 1990, an annual review of the pupil was conducted by the CSE, which concluded that the pupil's educational needs could best be served by a BOCES special education class. The CSE recommended that the pupil be placed in self-contained class of no more than 12 pupils to be taught by a teacher with the assistance of an aide, with speech therapy and physical therapy to be provided on 2 days of each week. The CSE mailed a letter to petitioners on April 11, 1990 informing petitioners of its recommendation and enclosing a copy of the pupil's proposed IEP for the 1990-91 school year. On the same day, the CSE also met with one of the petitioners to further discuss its recommendation. At the April 11 meeting, an alternative program for the pupil, consisting of instruction at both BOCES and at respondent's school, was suggested by the CSE chairperson. However, the pupil's mother rejected that alternative, and the CSE did not offer any other alternative to a full-time program at the BOCES. By letter dated April 24, 1990, respondent advised petitioners that it had adopted the recommendation of the CSE that the pupil be placed in a BOCES class for the 1990-91 school year.

In May, 1990, the school psychologist advised petitioners of his intention to re-evaluate the pupil in accordance with the requirement of 8 NYCRR 200.4 (f) that each pupil receive a triennial evaluation. Petitioners advised the CSE that they were withdrawing their consent to the evaluation of the pupil, and also revealed that they wanted an independent evaluation to be performed at respondent's expense. By letter dated June 4, 1990, the chairperson advised petitioners that their consent was not required in order for the district to be able to perform a triennial evaluation, and that the school district would consider the results of an independent evaluation but would not pay for such an evaluation. The triennial evaluation was completed on June 7, 1990.

The CSE met with petitioners on June 18, 1990, to review the results of the triennial evaluation. However, the CSE adhered to its recommendation of March 15, 1990 that the pupil be placed in a special education class operated by the BOCES in Geneseo, New York.

Petitioners requested that a hearing be held with regard to the CSE's recommendation. A hearing was held on five days, ending on July 31, 1990. In a decision dated September 17, 1990, the hearing officer found that the pupil was learning and functioning at a lower level than the other pupils in the school district operated special education class, and that such class was no longer an appropriate program for the pupil. The hearing officer directed that the pupil attend the BOCES class for three days each week and the district class for the remaining two days of the week during the 1990-91 school year, to assist the pupil in making a transition to the BOCES class on a full-time basis in the subsequent school year.

Before addressing the substantive issues raised by the parties, I will first consider certain procedural issues.

Respondent Board of Education requests that I disregard a substantial portion of the answer filed by petitioners to the Board's cross-appeal, upon the ground that the answer does not respond to the Board's cross-appeal but is instead a reply to the Board's answer. In accordance with 8 NYCRR 279.6, no reply is permitted, except in response to new documentary evidence submitted with answer. The Board of Education did not submit any new documentary evidence. Therefore, the first 48 paragraphs of petitioners' answer which respond to respondent's answer will not be considered. The remaining allegations of petitioners' answer respond to respondent's cross-appeal, and will be considered.

Petitioners assert that they did not receive adequate notice of the CSE's recommendation, because the written notice which they received from the CSE did not describe what alternative programs and placements the CSE had considered prior to recommending the BOCES class. The record reveals that the CSE sent petitioners a letter on April 11, 1990, which briefly described the CSE's recommendation. A copy of the proposed Phase I IEP for the pupil was attached to that letter. However, Federal and State regulations require that a board of education must describe to parents not only the action which the board proposes or refuses to take, but must also describe any options considered by the board of education and the reasons why those options were rejected (34 CFR 300.505 [a][2]; 8 NYCRR 200.1 [x]). Nevertheless, I find that upon the facts in this case, particularly the three meetings of the CSE at which the proposed placement and options were discussed with petitioners, the petitioners did receive the benefit of the explanation that is intended by these regulations. In light of my determination of the substantive issues raised later in this decision, there is no basis for annulling the CSE's recommendation solely on the issue of an inappropriate notice of the CSE's recommendation (Matter of Bd. of Ed. Leroy CSD, 29 Ed. Dept. Rep. 496).

Petitioners challenge the hearing officer's decision on the ground that they were not afforded advance notice by the hearing officer that he might order that pupil be enrolled in both the in-district program favored by petitioners and the BOCES program recommended by the CSE, and that they were deprived of an opportunity to object to such a placement. Respondent objects to the decision on the ground that the hearing officer lacked the authority to order a placement which had not been placed in issue by either party at the hearing. Respondent also asserts that the hearing officer was without authority to order a placement for the 1990-91 school year. This latter argument is without merit.

The task of a hearing officer is to determine the appropriateness of a placement recommended by a CSE (Matter of Handicapped Child, 23 Ed. Dept. Rep. 452). If an essential element of an appropriate program has not been recommended by a CSE, a hearing officer may order a board of education to provide that program element, in lieu of remanding the case to the CSE (Matter of Bd. of City School Dist. of New York City, 21 Ed. Dept. Rep. 612; Matter of Bd of Ed. Liverpool C.S.D., 29 id. 77). However, the record must support the need for the additional element of the program ordered by a hearing officer (Matter of Bd. of Liverpool C.S.D. supra). In this instance, I have concluded that the record does not support the bifurcated program ordered by the hearing officer.

The central issue in this appeal is whether the CSE has offered an appropriate placement for the pupil which is in the least restrictive environment. An appropriate program must include instruction specifically designed to meet the unique needs of the pupil, supported by such services as are necessary to permit the student to benefit from instruction (Bd. of Ed. Hendrick Hudson C.S.D. v. Rowley, 458 U.S. 176). 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 program begins with an IEP which accurately reflects the findings of a pupil's evaluation and which sets forth the pupil's present levels of development and individual needs (8 NYCRR 200.4 [c][2][i]). Petitioners assert that the Phase I IEP which the CSE prepared on March 15, 1990 does not accurately reflect their child's present levels of performance. The record reveals that the IEP adequately describes the pupil's levels of performance and that such descriptions are based upon the results of a Woodcock-Johnson Psycho-Educational Battery administered to the pupil on January 22, 1990, as well as the observations of the pupil's teacher. Petitioners have failed to demonstrate any inaccuracy in the descriptions of performance levels. Petitioners also assert that the Phase I IEP does not set forth a clear statement of annual goals for the pupils, as is required by 8 NYCRR 200.4 (c)(2)(iii). However, my review of the IEP goals reveals a reasonably specific set of goals which are consistent with the levels of development described in the IEP.

Petitioners also object to the omission from the IEP of a description of the independent living skills which their child must learn. I must agree with petitioners that the IEP should specify the independent living skills to be developed, particularly in view of respondent's insistence that the pupil's primary need is to acquire such skills rather than to receive further academic training. However, the CSE could not have accurately and completely described the pupil's independent living skill needs, because the record does not reveal that the CSE has measured the pupil's adaptive behavior. I must also note that the IEP does not indicate the projected date of initiation of services under the IEP, as is required by 8 NYCRR 200.4 (c)(2)(v).

Federal and State regulations require that, to the maximum extent appropriate, each pupil with a handicapping condition must be educated in the least restrictive environment (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]). Each board of education must ensure that there is a continuum of alternative placements to meet the needs of its pupils with handicapping conditions (34 CFR 300.551). The continuum of placements in New York, as set forth in 8 NYCRR 200.6, includes special classes which are to be organized in accordance with the instructional and management needs of the pupils. The least restrictive special class consists of no more than 12 pupils whose special education needs consist primarily of specialized instruction (8 NYCRR 200.6 [f][4]). Classes of this nature are frequently referred to as "Option 1 classes". For those pupils whose management needs interfere with the instructional process to the extent that an additional adult is required in the classroom, State regulation requires that instruction be provided in a class of no more than 12 pupils, with one paraprofessional to assist the teacher (8 NYCRR 200.6[f][4][i]). These classes are referred to as "Option 2 classes". The class in which the pupil in this appeal is presently enrolled in an Option 1 class, although the record reveals that respondent has regularly assigned an aide to assist the teacher. The class recommended by the CSE is an Option 2 class, i.e. it is designed for students with greater instructional and management needs than can be addressed in an Option 1 class.

The class which the pupil presently attends is located in the school which she would attend if she did not have a handicapping condition, and is approximately one mile from her home. The class recommended by the CSE is located on the campus of the State University of New York at Geneseo, which is approximately a 45 minute drive from the pupil's home. No regular education is provided at the BOCES facility. Pupils enrolled in that facility are transported to another BOCES facility in Mount Morris, New York to receive vocational training. State regulation defines least restrictive environment as:

"... placement of an individual pupil with a handicapping condition which

(1) provides the special education needed by the pupil

(2) provides for education of the pupil to the maximum extent appropriate with other pupils who do not have handicapping conditions; and

(3) is determined following consideration of the proximity of the placement to the pupil's place of residence." (8 NYCRR 200.1 [v])

It is incumbent upon respondent to demonstrate that the placement recommended by the CSE is the least restrictive environment in which this pupil can achieve educational progress (Bd. of Ed. East Windsor Regional School District v. Diamond, EHLR 558:218). As was noted recently in Bd. of Ed. Schalmont C.S.D., Appeal No. 90-19, the relevant inquiry is whether a pupil can achieve the goals of his or her IEP within the less restrictive environment, and it is not necessary to demonstrate that the pupil would learn at the same level as the other pupils in the class. Nevertheless, State regulation requires that the learning characteristics of pupils in a special education class be sufficiently similar to assure that pupil has appropriate opportunities to achieve his or her annual IEP goals (8 NYCRR 200.6 [a][3][i]).

Respondent asserts that the pupil's present placement is inappropriate to meet her educational needs because its Option 1 class is intended for pupils who function with a much higher degree of independence and accomplishment than petitioners' child. Respondent alleges that the pupil cannot benefit from the instructional materials used in the class, or from the group discussions by which some of the instruction is provided. In order to provide meaningful instruction to the pupil in her present class, respondent asserts that it would be necessary to create a unique program for her, and that a disproportionate amount of the time of the teacher and aide would be required to provide her with the one to one direct instruction which the pupil allegedly requires.

Upon the record before me, I find that respondent has not demonstrated that the recommended placement is the least restrictive environment for this pupil. In essence, respondent suggests that the pupil does not fit in its existing program. However, there is evidence in the record that the pupil did achieve some of the goals of her IEP. A comparison of the pupil's scores on standardized tests administered in January and June 1990 reveals modest gains by the pupil in areas such as reading comprehension and general knowledge.

I have carefully considered the allegation by the pupil's teacher at the hearing that, although some of the pupils in the Option 1 class have lower scores in tests of reading, spelling and writing, all of the pupils in such class function at a higher level, as established by their adaptive behavior. However, as noted previously, respondent has not, in fact, measured this pupil's adaptive behavior. I must also note that the pupil's teacher conceded at the hearing that the pupil did participate in class discussion groups, and did work independently in reading and spelling. The teacher further testified that the pupil could operate a computer to receive instruction, and can use a calculator in mathematics. Although the pupil is alleged by respondent to be in need of one-to-one instruction, the record reveals that the pupil achieved success in the special subjects of art, music and health without the assistance of an aide. In view of all of the foregoing, I am unable to conclude that the pupil's educational needs are so severe as to require an aide, however helpful an aide might be.

The record includes a number of documents which are copies of the material used in the curriculum for respondent's Option 1 class. The parties differ as to the ability of petitioners' daughter to comprehend and benefit from the use of such curriculum material. However, I need not decide what percentage of such material the pupil could comprehend, because the curriculum should be adapted to meet the individual needs of each pupil with a handicapping condition. While respondent suggests that it is not required to create a unique program for the pupil, I find that it is respondent's obligation to create an individualized instructional program for each of its pupils with handicapping conditions, as reflected in their IEP's.

Upon the record before me, I find that respondent has not established that the pupil's needs or learning characteristics are so dissimilar from those of the other pupils in the Option 1 class to establish that she could not benefit from instruction in that class. Respondent has advanced no satisfactory explanation for placing the pupil in the more restrictive Option 2 placement at the BOCES, where there would be no opportunity for mainstreaming because the BOCES program consists only of children with handicapping conditions (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 52). Although respondent seeks to minimize the significance of this pupil's contacts with regular education pupils in the halls and lunch room of her present school building, I note that the least restrictive environment requirement extends to non-academic activities (34 CFR 300.553). The recommended placement at the BOCES is also at some distance from the pupil's home. Both Federal and State regulation require that the proximity of the placement to the pupil's home be taken into consideration in determining the least restrictive environment (34 CFR 300.551 [a][3]; 8 NYCRR 200.1 [v]).

I must also note that respondent has provided insufficient information about the proposed placement at BOCES to afford a rational basis for concluding that it is an appropriate placement. At the hearing, a teacher from BOCES provided a general description of the Option 2 program of BOCES. However, the teacher testified that there would be at least three, and possibly four, Option 2 classes for the 1990-91 school year. The composition of the Option 2 classes had not been determined as of the date when the teacher testified. Consequently, it is not possible to determine whether petitioners' child would be appropriately grouped with pupils having similar needs and capabilities (Matter of Handicapped Child, 22 Ed. Dept. Rep. 520).

I have considered respondent's other contentions and find them to be without merit.

THE APPEAL IS SUSTAINED, AND THE CROSS-APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that the decision of the hearing officer be, and the same hereby is, annulled; and,

IT IS FURTHER ORDERED that within 30 days after the date of this decision respondent's CSE shall prepare a revised IEP for the pupil in accordance with the provisions of this decision.