91-009

Petitioner appeals from a determination of an impartial hearing officer which denied petitioner's application for tuition reimbursement for the 1989-90 school year, because the private school in which petitioner had unilaterally placed her child was not the least restrictive environment for the pupil. The appeal must be dismissed.

Petitioner's 14 year old child has been classified by respondent's committee on special education (CSE) as learning disabled. The pupil's classification is not in dispute.

For the 1989-90 school year, the CSE recommended that the pupil be placed in a self-contained special education class of the Board of Cooperative Educational Services of Westchester County (BOCES), with a maximum of six pupils to be taught by a teacher with the assistance of an aide. Petitioner did not accept the recommended placement, and unilaterally arranged to have the pupil attend the Lowell School, a State approved nonpublic school for the education of children with handicapping conditions.

Petitioner requested that an impartial hearing be held to review the appropriateness of the BOCES class and the Lowell School. The hearing officer found that the BOCES class was appropriate to meet the pupil's needs, and denied petitioner's request for tuition reimbursement.

Petitioner appealed from the hearing officer's decision to the Commissioner of Education. In Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 45, the Commissioner annulled the hearing officer's decision to the extent that said decision found that the BOCES class was appropriate, and remanded the case to the hearing officer to receive additional evidence as to the appropriateness of the Lowell School. The Commissioner's decision was based upon the decision in Burlington School Committee, Town of Burlington, Massachusetts, et al. v. Dept. of Ed., Commonwealth of Massachusetts et al., 471 U.S. 359, which held that a parent who unilaterally places his child in a private school may obtain tuition reimbursement for such placement, if it is established that the placement recommended by the CSE is inappropriate, that the placement selected by the parent is appropriate, and that equitable considerations support the claim for reimbursement. The Commissioner found that respondent had failed to meet its burden of proof in establishing that the BOCES class recommended by the CSE was appropriate because there was insufficient evidence in the record to demonstrate that the pupil would have been appropriately grouped with the other pupils in such class.

With regard to the Lowell School, the Commissioner found that there was insufficient evidence of the chronological age range, academic abilities, learning characteristics, social, physical and management needs of the other pupils in the pupil's class to afford any basis for determining whether the pupil was appropriately grouped with such pupils. The Commissioner remanded the matter back to the hearing officer to take additional evidence concerning the appropriateness of the pupil's placement at the Lowell School during the 1989-90 school year.

On November 8, 1990, the hearing on remand commenced, but was quickly adjourned at the request of petitioner's attorney, who stated that he was prepared to address the issue of the appropriateness of the Lowell School for the 1990-91 school year, but not for the 1989-90 school year. The hearing officer requested that a written class profile which petitioner's attorney had not planned to introduce in evidence be shared with respondent's counsel in advance of the next hearing (8 NYCRR 200.5[c][8]) and introduced at the next hearing date. The hearing was then adjourned until December 3, 1990, at which time the hearing was completed.

By decision dated January 10, 1991, the hearing officer found that while some of the pupil's needs could have been met at the Lowell School in a class of 12 pupils taught by a teacher assisted by an aide, which is less restrictive than the BOCES class with a 6:1 +1 student-staff, the pupil had been unnecessarily denied access to an education with non-handicapped children and to wider program offerings available in a public school. The hearing officer noted that there was no medical evidence with regard to pupil's seizures which would preclude her placement in the larger and more distracting setting of a public school program, nor had petitioner established that the pupil would be unable to form relationships with non-handicapped pupils in such a program.

Petitioner asserts that the hearing officer applied inappropriate criteria in determining the appropriateness of the Lowell School program during the 1989-90 school year, and that the evidence adduced at the hearing supports the conclusion that the Lowell School program was appropriate to meet the pupil's needs for the 1989-90 school year.

Respondent asserts that petitioner failed, as a matter of law, to demonstrate the appropriateness of the Lowell School program because the written and testimonial evidence offered by petitioner at the hearing did not address the management needs and levels of physical development of the other pupils in the special education class at the Lowell School. Respondent objects to the inclusion in the record of a class profile which includes information as to the management needs and levels of physical development of the pupils in the class, which was submitted by petitioner to the hearing officer after the hearing had been held. Even if such evidence is considered, respondent asserts that the Lowell School was not the least restrictive environment for the pupil.

Petitioner has the burden of proving the appropriateness, during the 1989-90 school year of the pupil's placement at the Lowell School. I find that petitioner has not met her burden of proof.

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]). The least restrictive environment is an essential element in determining the appropriateness of a placement unilaterally selected by a parent, as well as a placement recommended by a CSE (Application of a Child with a Handicapping Condition, 27 Ed. Dept. Rep. 111; Application of a Child with a Handicapping Condition, 28 id. 294; Application of a Child with a Handicapping Condition, 30 id. 108). The record reveals that the Lowell School has two school buildings. The pupil attended school in a facility with approximately 90 other pupils with handicapping conditions. There was no opportunity for interaction with non-handicapped peers. The issue is whether this pupil needed to be educated in such a restrictive environment.

A psychologist employed by the Lowell School testified that the pupil was appropriately placed in that school. He testified that, although the pupil's handicapping condition did not per se preclude her placement in a less restrictive environment, it would be difficult for the pupil to keep her mental organization intact in a larger school building with more stimuli to distract the pupil. The psychologist opined that it would be difficult for the pupil to proceed from class to class in a regular school building. I note that the psychologist conceded that he had never formally evaluated the pupil, although he did interact with the pupil's class for one school period each week. The record includes a description of the Lowell School by one of respondent's administrators, who visited the school. That report reveals that there was a significant level of noise and activity in the school hallways, as would be the case in a regular school setting. The psychologist also asserted that the pupil could not benefit from interaction with non-handicapped pupils at lunch or in art, music or physical education classes, because she would perceive herself to be unable to participate in normal social discourse. However, the psychologist conceded that he had never observed the pupil in any interaction with mainstream pupils.

At the hearing, the hearing officer agreed to review two psychological evaluations of the pupil performed in 1987 and 1988, which were included in the record of the prior hearing. I have also reviewed those evaluations, and find that neither evaluation supports placement in such a restrictive environment. I have also considered the testimony of respondent's former CSE chairperson, who testified that the CSE had recommended in 1989 that the pupil be mainstreamed in art, music and physical education. In view of the strong preference for education in a less restrictive environment, I am unable to find any educational basis for the instruction of the pupil in such a restrictive environment.

In his decision, the Commissioner of Education noted that although petitioner had expressed a concern that the pupil's placement in a larger setting might aggravate the pupil's seizures, there was insufficient medical evidence in the record before him to support that concern. The pupil's seizures were discussed briefly at the hearing held on December 3, 1990, but no new medical evidence was adduced. The Lowell School's psychologist testified that he was aware of only two seizures which had occurred in school, and that the pupil had been taken to a "time-out" room where she regained her orientation after approximately 10 to 15 minutes. From the record before me, I am unable to conclude that placement in a small school setting is required to reduce the risk of the pupil having seizures.

The Commissioner also found that the record in the prior hearing was inadequate to determine the appropriateness of the Lowell School placement because there was insufficient information about the abilities and needs of the other pupils in the pupil's class.

At the hearing, petitioner introduced into evidence class profiles of the different classes in which the pupil received instruction during the 1989-90 school year. The profiles reveal that the pupil participated in three different instructional groups, one for English, one for mathematics and one for social studies, science and special subjects. The psychologist for the Lowell School testified that the profiles had been prepared in October, 1989, as part of a report by the Lowell School to the State Education Department. Although the psychologist testified that the profiles were complete, they did not disclose information about the pupils' levels of physical development or management needs. Subsequent to the hearing, petitioner's attorney provided the hearing officer with revised profiles which included the missing information.

Respondent objects to the post-hearing submission of evidence, which deprived it of an opportunity to challenge the accuracy of the information as to the levels of physical development and management needs of the pupils. Although I find that the hearing officer's acceptance of the additional information which had not previously been shared with respondent was contrary to the provisions of 8 NYCRR 200.5(c)(8), it is apparent that even with this additional information petitioner has not demonstrated that the pupil was appropriately grouped.

The pupil was grouped for English and mathematics with pupils who had comparable levels of achievement, although there were significant disparities in the IQs of the pupils in such classes. In the English instructional group, pupil IQs ranged from 52 to 100, although the pupils' reading levels, by grade, ranged from 1.2 to 2.9. In the mathematics instructional group, the pupil IQs ranged from 52 to 99, although their achievement levels ranged from 2.9 to 4.8. This pupil's IQ was 70, as tested in 1988. Her reading level was at 2.0 and her mathematics achievement was at 3.0. The pupil received instruction in social studies and science in a group in which IQs ranged from 62 to 101, and in which pupil reading levels varied from 1.5 to 7.0.

With regard to the grouping of pupils in special education classes, State regulation provides that:

"The range of academic or educational achievement of such pupils shall be limited to assure that instruction provides each pupil appropriate opportunities to achieve his or her annual goals. The learning characteristics of pupils in the group shall be sufficiently similar to assure that this range of academic or educational achievement is at least maintained" (8 NYCRR 200.6 [a][3][i]).

The record before me does not include any evidence as to the educational goals for the pupil during the 1989-90 school year, or any evidence as to her academic progress, if any, during such year. In view of the disparity in pupil IQ scores and reading levels in the instructional group for social studies and science, it is highly unlikely that the pupils in such group had similar educational goals. Accordingly, I must find that petitioner has failed to demonstrate that the pupil was appropriately grouped in the class at the Lowell School for the 1989-90 school year.

Finally, I must note that the class profiles and the testimony reveal the names of the other pupils in the class, which is inconsistent with Federal and State regulations which require that the confidentiality of pupil records be preserved (34 CFR 300.572; 8 NYCRR 200.5[f]). The hearing officer should have required that the pupil names were deleted from the evidence entered into evidence.

THE APPEAL IS DISMISSED.