91-008

Petitioner appeals from the determination of an impartial hearing officer upholding the recommendation of respondent's committee on special education (CSE) that petitioner's son be educated during the 1990-91 school year in a special class of the Board of Cooperative Educational Services of the Third Supervisory District of Suffolk County (BOCES). The appeal must be sustained.

Petitioner's son, who is five years old, was initially referred to respondent's Committee on Preschool Special Education (CPSE) for an evaluation in September, 1989. In accordance with the provisions of Section 4410 (4) of the Education Law, petitioner was afforded the option of selecting a private evaluation provider. Petitioner selected the School for Language and Communication Development (SLCD), which is approved by the State Education Department to perform evaluations and provide instruction to preschool age pupils with handicapping conditions. For the purposes of this decision, a preschool age pupil is a pupil who is not entitled to attend public school pursuant to Section 3202 of the Education Law, but who is eligible to receive special educational services pursuant to Section 4410 of the Education Law.

The record reveals that the pupil was enrolled in the SLCD on September 9, 1989. Respondent's CPSE met on October 17, 1989, at which time the pupil was classified as a speech impaired pupil. The CPSE recommended that the pupil be placed in a half day preschool program of the SLCD, and that the pupil receive individual speech/language therapy twice each week. Respondent accepted the recommendation of the CPSE, which subsequently recommended that the pupil continue in the program during July and August, 1990. That recommendation was also accepted by respondent. The class in which the pupil was placed at the SLCD consisted of 12 pupils, who were taught by 2 teachers with the assistance of 2 aides.

On July 10, 1990, respondent's CSE met to recommend a classification and placement for the pupil as a school age pupil during the 1990-91 school year. At the July 10 meeting, the CSE considered a report from the SLCD which recommended that the pupil's program be altered to a class of no more than 6 pupils with a teacher and an aide. The program is described as transdisciplinary, including creative arts with occupational therapy, group music therapy, adaptive physical education and group auditory therapy. In addition, the SLCD recommended that the pupil receive individual speech/language therapy five times each week, and that his parents participate in parent training and behavior management classes. Petitioner, who attended the July 10 meeting of the CSE, supported the recommendation of the SLCD.

The CSE advised petitioner that, in accordance with State regulation at that time (8 NYCRR 200.6 [h]), the State Education Department would have to approve the proposed placement at the SLCD in order for respondent to contract with the SLCD. However, the CSE agreed to recommend the proposed placement, and classified the pupil as speech/language impaired. Thereafter, respondent's Director of Special Education submitted information about the pupil and the proposed placement to the State Education Department.

On August 1, 1990, 8 NYCRR 200.6 [h] was amended, as a result of the decision in Louis M. v. Ambach, 714 F. Supp. 1276, to provide that the placement of a pupil by a school district in an approved private school for the education of children with handicapping condition would no longer be subject to the prior approval of the State Education Department. The amended regulation provides that the Department's approval is required in order for school districts to receive State aid reimbursements for the excess costs of such placements pursuant to Section 4405 (3) of the Education Law.

On August 17, 1990, respondent received a form from the State Education Department which informed respondent that State aid for the proposed placement could not be approved at that time, because insufficient information had been provided. Respondent was directed to provide a medical evaluation, a social history, an audiological assessment, a visual assessment, a statement of goals to be in effect until a Phase II Individualized Education Program (IEP) was prepared, and to document its efforts to place the pupil in a less restrictive environment and in a public program. Respondent was further advised to submit the additional information requested to the State Education Department for a reconsideration of respondent's application for approval.

Respondent's Director of Special Education contacted four other school districts and the BOCES to ascertain if an appropriate public program was available. He submitted information about the pupil, including the IEP prepared at the July 10 CSE meeting, to the BOCES. The BOCES advised the Director that it had a suitable program for the pupil at its Early Childhood Center located in Wheatley Heights. The Director scheduled a meeting of the CSE, which was held on August 28, 1990.

At the August 28 meeting, the CSE recommended that the pupil be placed in the BOCES Early Childhood Center program in a class of six pupils with a teacher and an aide. The CSE recommended that the pupil receive individualized speech/language therapy five times per week, occupational therapy once per week, and that he participate in adaptive physical education twice per week. The CSE did not submit any additional information to the State Education Department, in support of its application for approval of funding of the proposed placement at the SCLD.

Petitioner objected to the proposed placement at the BOCES. A hearing was conducted before an impartial hearing officer on November 7, 1990. By decision dated January 3, 1991, the hearing officer rejected petitioner's assertion that the CSE lacked authority to reconsider its July 10 recommendation that the pupil attend the SCLD, and found that the BOCES program was appropriate to meet the pupil's needs and would be closer to the pupil's home than the SCLD program.

Petitioner asserts that the pupil's IEP prepared on July 10 was altered to provide for his placement at the BOCES solely because of the potential loss of State aid to the district, which petitioner asserts is not an allowable basis for changing an IEP. Petitioner further asserts that a pupil's IEP may be altered only if the pupil's needs change or a proposed placement becomes inappropriate, and that there is no evidence of either in the record. Petitioner further maintains that the hearing officer's decision violates the holding in Louis M. v. Ambach, supra, and that the State Education Department's representative also violated the holding in that decision.

With regard to petitioner's assertion concerning the actions by the representative of the State Education Department who requested that respondent provide more information about the pupil and other possible placements, I must note that 8 NYCRR 279.1 (c)(2) provides that a State Review Officer may not review the actions of any officer or employee of the State Education Department. Accordingly, I will not consider petitioner's assertion with regard to the Department's Regional Associate.

The first issue presented in this appeal is whether the CSE could alter its recommendation of July 10, 1990 that the pupil be placed in the SLCD. Petitioner contends that the CSE lacked authority to alter its recommendation. Petitioner's contention is premised upon the provisions of 8 NYCRR 200.4 (e)(6) and 8 NYCRR 200.4 (f). Section 200.4 (e)(6) reads in material part as follows:

"If the pupil's parent, teacher or an administrator of the school or agency believes that the program or placement recommended in the individualized education program (IEP) is no longer appropriate, such party may refer the pupil to the committee on special education for review ..."

Petitioner asserts that this regulation does not authorize a CSE to initiate a review of the pupil's IEP. I must note that the regulation is a portion of 8 NYCRR 200.4 (c) which pertains to planning conferences held to develop Phase II IEPs, rather than a Phase I IEP such as that developed at the July 10 meeting. In any event, respondent's Director of Special Education testified that the August 28 meeting of the CSE was convened after he had explored the possibility of suitable public placements for the pupil and had been advised by the BOCES of the availability of a placement in its Early Childhood Center. In view of the requirement for placements to be made in the least restrictive environment (8 NYCRR 200.6 [a][1]) and the preference accorded to public over private school placements (Section 4402 [2][b][1]) of the Education Law) of which the Director of Special Education was aware and the fact that the Director had ascertained the availability of the BOCES program, it is not unreasonable to conclude that a school administrator had determined that the recommended placement was no longer appropriate.

Petitioner also relies upon the provisions of 8 NYCRR 200.4 (f), which reads in material part as follows:

"Annual review and triennial evaluation. The individualized education program of each pupil with a handicapping condition shall be reviewed and, if appropriate, revised periodically but not less than annually."

Petitioner asserts that in a review of an IEP, the CSE must consider current information pertaining to the pupil's performance, and that in this instance the CSE did not consider any new information about the pupil's performance at the August 28 meeting. However, the regulatory requirement is that the CSE consider current information, not that it have new information. Both 34 CFR 300.343 (d) and 8 NYCRR 200.4 (f) require that a pupil's IEP be reviewed at least once a year. Neither regulation precludes more frequent reviews.

Having found that the CSE was not precluded from reconsidering its recommendation of July 10, I will now consider petitioner's assertion that the CSE had no valid grounds for altering the July 10 recommendation. Petitioner asserts that the CSE had no additional information about the pupil's needs or of any change in the proposed program at the SLCD, and that the only reason for considering a change in placement was the potential loss to respondent of excess cost State aid.

At the hearing, the CSE chairperson testified that there was no new information about the needs of the child, and that the program of the SLCD could meet the pupil's needs. The chairperson further testified that although he had expressed some reservations about the SLCD program at the July 10 meeting, he had nevertheless supported the placement of the pupil at that facility because he believed that the pupil would benefit more by being in a placement preferred by his parents. The chairperson testified that it was understood by petitioner and the CSE that the CSE would reconvene to consider an alternative placement, in the event that the State Education Department disapproved of the pupil's placement at the SLCD.

When the CSE met in July, 1990, a board of education could not contract with an approved private school for the instruction of a pupil with a handicapping condition, unless the State Education Department approved the proposed placement (Section 4402 [2][b][1]; 8 NYCRR 200.6 [h]). However, as noted above, 8 NYCRR 200.6 (h) was amended on August 1, 1990 to provide that approval by the State Education Department was not necessary in order for a board of education to contract with a private school. As of August 1, 1990, approval by the State Education Department of a private school placement has been required solely for a board of education to obtain the additional State aid available pursuant to Section 4405 (3) of the Education Law. 8 NYCRR 200.6 (h) presently provides that it is the responsibility of a board of education to implement the recommendations of its CSE in a timely manner, regardless of the status of the board's application for approval for State aid purposes. Therefore, respondent was not precluded from implementing the recommendation of its CSE.

The testimony of the CSE chairperson and the Director of Special Education reveals that the CSE was aware of the fiscal consequences to respondent of proceeding to place the pupil at the SLCD, but that both individuals also had concerns about whether placement at the SLCD would be in the least restrictive environment. To the extent that the cost of the proposed placement was a factor in the CSE's decision, I must note that a school district is not precluded from considering cost when choosing between alternative placements which are comparable (Clevenger v. Oak Ridge School Board, 749 F. 2d 514). Moreover, the placement of each pupil in the least restrictive environment is a highly relevant consideration.

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]). That requirement is the central issue in this appeal. I find that the CSE was not precluded from reconsidering its July 10 recommendation, or in recommending the pupil's placement in the BOCES program. However, respondent has failed to meet its burden of proof in establishing the appropriateness of the BOCES placement.

The record is devoid of evidence to support the pupil's placement in such a restrictive setting as a class of no more than 6 pupils with a teacher and an aide. A class of that nature is intended for pupils with management needs which are highly intensive and which require a high degree of individualized attention and intervention (8 NYCRR 200.6 [f][4][ii]). The information provided by the SLCD in support of placement in such a class, which is the only information in the record before me, does not afford any basis in fact for concluding that the pupil has any unusual or significant management needs, despite the conclusory recommendation by the SLCD that he be placed in such a class. The pupil was described as a pleasant boy, who requires minimal adult cues to engage in verbal turn-taking, and to be redirected in activities which extend beyond seven to ten minutes. There is also no evidence that this pupil needs a high degree of individualized attention. The pupil has age appropriate self-help skills, and has in fact achieved age appropriate scores in reading and mathematics in a less restrictive class of 12 pupils with a teacher and an aide. Conspicuously absent from the record is any evidence of an observation by a representative of the CSE of the pupil in his class during the 1989-90 school year, in violation of 8 NYCRR 200.4 (b)(2)(vii).

Pupils with handicapping conditions are to be placed in classes based upon the similarities of the pupils in the areas of academic achievement and learning characteristics, social development, physical development and management needs (8 NYCRR 200.6 [f][2]). A profile of the other pupils in the proposed BOCES class which is included in the record before me does not support the testimony of the BOCES principal that the pupil would be appropriately grouped with the other pupils. With regard to learning characteristics, this pupil functions within the low average range of intelligence while most of the other pupils are in or near the retarded range. Although each pupil in the proposed class has a speech or language problem, the record does not reveal the extent of their respective speech or language problems. Each pupil is described as having delayed physical development. However, it is not possible to ascertain from the record the extent to which such delays may affect their management needs and learning styles. Three of the pupils are described as having immature social skills, which may be a function of their low IQs. Two pupils have significant social problems. However, the record in this appeal does not afford any basis for me to conclude that this pupil has a similar level of social development.

In view of all of the above reasons, I must find that respondent has failed to demonstrate the appropriateness of the proposed BOCES placement. I shall therefore direct that the CSE reconsider the placement and program of the pupil. In doing so, the CSE must bear in mind that the pupil must be educated in a regular education class with supplementary services such as speech/language therapy, unless the nature or severity of the handicapping condition precludes the pupil's satisfactory achievement in such class (34 CFR 300.550 [a][2]). The conclusory statements by the SLCD, as well as that of the CSE in its application for State funding as to the pupil's needs are not supported by the record. The CSE should consider whether this pupil's needs require that he be placed in a setting such as the BOCES or the SLCD, in which there is no opportunity for interaction with his non-disabled peers.

Although I will direct the CSE to prepare a new recommendation, I am aware of the fact that it is late in the school year and that this is a very young pupil whose progress could be adversely affected by a change in his placement. Consequently, I will direct respondent's CSE to promptly perform an annual review of the pupil to identify an appropriate placement for the 1991-92 school year. I will also direct respondent to continue the pupil's placement at the SLCD through June, 1991 (Matter of a Handicapped Child, 22 Ed. Dept. Rep. 339).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

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

IT IS FURTHER ORDERED that within 30 days after the date of this decision respondent's CSE shall perform an annual review of the pupil and recommend an appropriate placement for the pupil for the 1991-92 school year; and

IT IS FURTHER ORDERED that respondent shall maintain the placement of the pupil at the SLCD through June 30, 1991.