90-019

Petitioner, the Board of Education of the Schalmont Central School District, appeals from a determination of an impartial hearing officer which annulled the recommendation of petitioner's committee on special education (CSE) that respondents' child be placed in a self-contained special education class at petitioner's Jefferson School for the 1990-91 school year. Although not formally cross-appealing from that portion of the hearing officer's decision which supported the CSE's recommendation to change the classification of their child from speech impaired to mentally retarded, respondents ask that I direct petitioner to refrain from changing the classification of their child until the school district completes a speech evaluation of the pupil. The appeal must be sustained in part, and the relief sought by respondents is denied.

Respondent's eight year old child has Down Syndrome. She has received special services as a child with a handicapping condition since shortly after her birth. Upon her entrance into the Schalmont Public Schools at the commencement of the 1987-88 school year, the pupil was initially classified by petitioner's CSE as speech-impaired. She was placed in a primary skills development class at the Woestina Elementary School, which is a self-contained class for pupils with significant learning delays. Respondents' child has remained in that class. The pupil's individualized educational program (IEP) for the 1989-90 school year provided that the pupil was to receive occupational therapy twice each week, individual speech therapy twice each week and group speech therapy twice each week. The IEP also authorized the mainstreaming of the pupil in regular education classes, at the option of her teacher. The pupil was mainstreamed for physical education, art, music, library, lunch and recess during the 1989-90 school year.

At an annual review of the pupil, which included a triennial re-evaluation, the CSE recommended that the pupil's classification be changed to mentally retarded and that her program be changed to an intermediate level skills development class in petitioner's Jefferson School for the 1990-91 school year. The recommended class would consist of twelve pupils, who are taught by a teacher with the assistance of an aide, which is similar to the pupil's present class.

At the request of respondents, an impartial hearing was held during June and July, 1990. Respondents challenged the proposed change in the classification of their child on the ground that the CSE had not evaluated the pupil's speech needs, and offered the testimony of a psychologist to demonstrate that the pupil was not mentally retarded. They also requested the hearing officer to find that the proposed program was not the least restrictive environment for the pupil. In a decision dated September 28, 1990, the hearing officer upheld the CSE's recommendation that the classification of respondents' child be changed to mentally retarded, upon the ground that the evaluation data in the record established that the pupil's primary handicapping condition was mental retardation. However, the hearing officer further found that the CSE had failed to establish that the recommended program was the least restrictive environment for the pupil. The hearing officer ordered petitioner to place the pupil in a regular second grade class, with such supplemental services and aids as the CSE shall deem appropriate. The hearing officer delayed the implementation of his decision until October 15, 1990, in order to afford the second grade teacher an opportunity to observe the pupil in her present class and to consult with petitioner's special education staff.

Before considering the parties' contentions with regard to the appropriate program for the pupil, I must first address the issue of the pupil's classification. Respondents assert that petitioner has failed to conduct an appropriate evaluation of their child's speech and language impairments, in violation of Federal and State law.

The CSE chairperson testified at the hearing that a triennial evaluation of the pupil had been performed by the school psychologist, and that the CSE had relied upon information provided by the pupil's speech therapist. The pupil's speech therapist testified that she prepared an annual speech/language review in April, 1990, prior to the CSE meeting of May 2, 1990. That review included tests of the pupil's language development and processing, because the pupil's deficit in receptive language, i.e. comprehension, is more severe than the deficit in her expressive language skills. The therapist's report is part of the record before me. Under the circumstances, I find that the CSE had adequate evaluations upon which to base its recommendation to change the pupil's classification (34 CFR 300.532 - 533).

With regard to the validity of the proposed change in classification, it must be noted that the school district does not suggest that respondent's child no longer has a speech or language impairment. Rather, it is the district's position that the pupil's primary handicapping condition is mental retardation. A board of education may establish priorities, where a pupil has more than one handicapping condition (Application of a Child with a Handicapping Condition, 27 Ed. Dept. Rep. 102; Matter of Handicapped Child, 23 id. 191; Matter of Handicapped Child, 20 id. 557). The record reveals that the pupil's intellectual functioning is at least 1.5 standard deviations below the mean of the general population, and that her adaptive behavior is consistent with the level of her intellectual functioning. Although the psychologist testifying on behalf of respondents asserted that the pupil's score on the Stanford-Binet Intelligence Test was within the range of low average intellectual functioning, he conceded that the pupil's score was in fact at least 1.5 standard deviations below the mean of the general population. For the purpose of providing special education and related services, a pupil with the handicapping condition of mentally retarded is defined in 8 NYCRR 200.1 (ff)(4) as:

"A pupil who, concurrent with deficits in adaptive behavior, consistently demonstrates general intellectual functioning that is determined to be 1.5 standard deviations or more below the mean of the general population on the basis of a comprehensive evaluation which includes an individual psychological evaluation."

I find that the evaluative data and the testimony of petitioner's school psychologist is persuasive in establishing that the pupil's primary handicapping condition is mental retardation.

The Board of Education asserts that the hearing officer's determination that the pupil should be placed in a regular second grade class with appropriate supplementary services is contrary to the weight of the evidence in the record. Petitioner alleges that it demonstrated that the pupil could not be taught the second grade curriculum even with extensive modifications of such curriculum, and that the pupil's behavioral problems are so significant that her presence in a regular second grade class would detract from the ability of the teacher to instruct the other students in the class. The Board of Education maintains that the pupil will benefit from instruction only if she is placed in a small class with a special education curriculum, such as the class recommended by the CSE.

Petitioner is obligated to provide an appropriate program for respondent's child. An appropriate program must include instruction specifically designed to meet the unique needs of the pupil, which is supported by such services as are necessary to permit the pupil to benefit from instruction (Board of Education of the Hendrick Hudson School District v. Rowley, 458 U.S. 176). 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] and 8 NYCRR 200.6 [a][1]). In accordance with the provisions of 34 CFR 300.550 (b)(2), a pupil with a handicapping condition may be removed from the regular educational environment only when the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. If education in a regular classroom cannot meet the unique needs of a child with a handicapping condition, the presumption in favor of mainstreaming is overcome and the child need not be placed in a regular education program (Lackman v. Illinois State Board of Education, 852 F 2d 290 [7th Cir., 1988]; Roncker v. Walter, 700 F 2d 1058 [6th Cir., 1983]; Daniel R.R. v. State Board of Education, 874 F 2d 1036 [5th Cir., 1989]).

In determining whether a pupil's education can be provided in a regular education setting, it is not necessary to demonstrate that a pupil with a handicapping condition will learn at approximately the same level as his or her non-handicapped peers (Daniel R.R. v. State Board of Education, supra). The relevant inquiry is whether a pupil with a handicapping condition can achieve the goals of his or her IEP within a regular education program, with the assistance of appropriate supplementary aids and services, because the IEP determines what is an appropriate education program for the pupil. This is especially significant in this instance, because petitioner premises much of its case upon its belief that the regular second grade curriculum would have to be excessively modified in order for the pupil to benefit from instruction. The record reveals no basis for concluding that this pupil's IEP goals could not be achieved in a regular class setting. The chairperson of the CSE testified at the hearing that the IEP goals could be implemented in a regular education classroom by a special education teacher. The pupil's special education teacher also testified that the pupil could benefit from regular education, with modifications, but added that the regular class teachers may not be ready to have a pupil with special needs, such as this pupil, in their classrooms.

The pupil's Phase I IEP goals are consistent with the curriculum concepts which would be presented in a regular second grade program. While these goals do not require the pupil to acquire all of the knowledge and to achieve all of the skills expected of pupils in a regular second grade class, it does not follow that the pupil could not significantly benefit from placement in a regular second grade class. Many of the skills developed at the second grade level are within the capabilities of this pupil and will be useful to her as she continues in school. Her mastery of these basic skills will enable her to benefit from the instruction which will be presented to her throughout her educational program. In addition, it is abundantly clear that this pupil needs to develop her social skills for meaningful interaction with non-handicapped peers now while she is in school, and in later life. A greater exposure to non-handicapped peers and the continued use of speech therapy to enhance her communications skills should improve her ability to function successfully in later life, regardless of the level of academic achievement which she ultimately attains. That is also a significant factor in determining whether the pupil should be mainstreamed at this time (Daniel R. R. v. State Board of Education, supra).

The primary concern of the witnesses testifying on behalf of petitioner and in support of the recommended special class program was for the management needs of the pupil, one of the four factors to be considered in grouping pupils with handicapping conditions (8 NYCRR 200.6 [a][3]). Management needs are an important consideration, but I must note that petitioner's portrayal of the pupil's management needs appears to be overstated. The pupil has a relatively short attention span. Her special education teacher testified that the pupil has a hard time staying on task in classroom groups, and works best directly with a teacher. The teacher admitted that the pupil has not had a great deal of experience in group learning situations.

In addition to not staying on task, this pupil has, in the past, inappropriately touched other pupils, and occasionally she will leave a classroom without permission. The pupil's special education teacher stated at the hearing that shortly after she replaced the teacher of the pupil's special education class in the middle of the 1989-90 school year, a meeting of the pupil's teachers was held to develop a behavioral management plan. The plan, which provided for both rewards for positive behavior and punishment for negative behavior, was shared with the pupil's special subject teachers. The special education teacher further stated that the pupil's behavior had improved for that teacher to the point where she had hardly any problems with the pupil.

The pupil's physical education, art and music teachers and speech therapist also testified at the hearing. The physical education teacher stated that the pupil is occasionally off-task, but responds well to verbal correction. The pupil's art teacher stated that she had received some suggestions from the school psychologist to assist her in keeping the pupil's attention, but was not aware of any special education goal for the pupil in art. The art teacher was unaware of any specific behavioral management plan for the pupil, and stated that the pupil's behavior was the primary impediment to her full participation in class. The pupil's music teacher, who was not aware of pupil's classification or of the details of the pupil's IEP, stated that the pupil had difficulty performing some of the tasks expected of other non-handicapped pupils in the class and misbehaved in class. When the pupil misbehaved, an aide from the pupil's special education class was summoned to sit with the pupil in the music class. The speech therapist, who was aware that there was a behavioral management plan but not the specific provisions of the plan, testified that the pupil's behavior had improved as she became familiar with the therapist.

Upon the record before me, I find that the pupil's behavioral management needs do not afford a sufficient basis for concluding that her placement in a regular education class would be inappropriate. The pupil does require a firm and consistently applied behavioral management plan. The record reveals that when the management plan developed by petitioner's staff in consultation with an educational consultant from the State University of New York at Buffalo was followed, the pupil did not exhibit unmanageable or distractive behavior. Unfortunately, the management plan was not applied by all of the pupil's teachers during the 1989-90 school year. However, that omission and the pupil's resulting poor behavior in certain classes cannot provide a basis for me to conclude that this pupil would necessarily require an inordinate amount of a teacher's time to be devoted to the management needs of the pupil.

Although petitioner asserts that the pupil's instruction needs cannot be addressed in a regular education class without the use of a full-time special education teacher, I am not persuaded by the testimony and other evidence in the record that the pupil needs such an intensive level of instruction. I note that the pupil did participate in regular education classes in physical education, art, music and library without the assistance of a special education teacher during the 1989-90 school year. The record reveals that the pupil is reading at a beginning first grade level, and has a good memory. Although the pupil has had only limited experience in group instruction in her special education class, her experience with group instruction in her regular education classes suggests that she is capable of benefiting from group instruction on a more extensive basis.

Instruction can be provided to respondent's child by a regular education teacher, with the assistance of a special education teacher serving as a consultant teacher (8 NYCRR 200.1 [pp]). A consultant teacher can provide services indirectly, such as by assisting the regular education teacher in adjusting the learning environment and the teacher's instructional methods to meet the needs of the pupil, as well as by providing direct instruction to the pupil. The regular education teacher and the special education teacher should work together to develop and implement the pupil's Phase II IEP. The consultant teacher should also assist the regular class teacher in selecting and obtaining appropriate instructional and testing materials and equipment for the pupil.

Although it is by no means clear that the placement of this pupil in a regular class would require the continuous presence of a second adult in the classroom, petitioner's CSE should consider the assignment of a teacher aide to the class. The teacher aide could assist the teacher in individualizing the pupil's instruction, and allowing the teacher to work effectively with groups of pupils. The aide could also assist the teacher in keeping the pupil on task, as well as promote the pupil's social interaction with her peers in small group activities.

Although I agree with the ultimate conclusion of the hearing officer to place respondent's child in a regular second grade class, I must sustain the appeal to the limited extent of directing the CSE to meet to revise the pupil's Phase I IEP. The CSE must also make a recommendation to petitioner as to the appropriate supplementary services to be provided, such as a consultant teacher and a classroom aide. Petitioner must then implement the recommendation of the CSE within 30 days, in accordance with the provisions of 8 NYCRR 200.5(a)(5).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that within 30 days after the date of this decision, the CSE of Schalmont Central School District shall prepare a new Phase I IEP for the pupil to be implemented by petitioner within 30 days after petitioner receives such IEP.