91-025

Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) that petitioner's child be placed for the 1990-91 school year in a special education class operated by the Board of Cooperative Educational Services of Albany, Schoharie and Schenectady Counties (BOCES), and which denied petitioner's claim for reimbursement of tuition at a private school for the child during the 1990-91 school year. Respondent board of education cross-appeals from the hearing officer's finding that the CSE did not prepare an adequate individualized education program (IEP) for the child. The appeal must be sustained, and the cross-appeal must be dismissed.

Petitioner's child, who is now 6 years old, was diagnosed at five months of age as having a neurological disorder known as tuberous sclerosis. The child was also found to have a focal seizure disorder, which has been largely controlled through medication. An auditory evoked response test of the child when he was 17 months old revealed evidence of multi-level brainstem dysfunction in the child. During his early childhood, the child displayed evidence of developmental delay, particularly in the use of language. The child's classification as multiply handicapped (8 NYCRR 200.1 [ff][11]) is not in dispute.

In the Spring of 1989, petitioner moved from Pennsylvania into the Rotterdam-Mohonasen Central School District. The child was evaluated at the Schenectady United Cerebral Palsy Center (UCP) in March, 1989. The UCP psychologist described the child as strong-willed and as having some understanding that language and gesture mean communication, but having minimal speech. The psychologist noted that the child engaged in many self-stimulating activities and was largely self-directed. The psychologist found that the child, who was then 5 years old, performed cognitively at the level of an 18 month old child. In view of the child's failure to respond to the materials which were presented to him, the psychologist predicted that he would be difficult to teach. The psychologist recommended that the child be placed in a program for children with autistic-like behaviors, and that he receive therapy in speech and language, motor development and behavior management. A speech and language pathologist employed by the UCP found that the child had a severe speech and language delay, with his receptive and expressive language skills at the level of an 18 month old child. With regard to motor skills, the child was described by the UCP evaluation team as disorganized, unable to sit and unable to attend to fine motor tasks. The child resisted being restrained in any manner, and used impulsive, rapid movements. A UCP physician noted that the child had multiple self-stimulatory behaviors and a short attention span, as well as inappropriate play patterns, such as shaking toys while spinning in circles. The physician recommended that the child be placed in a special education program, with consistency and the use of behavioral management techniques. The physician recommended use of a multi-modal speech therapy program to assist the child in his efforts to communicate and to lessen his frustration.

The committee on preschool special education (CPSE) of the Rotterdam-Mohonasen Central School District placed the child at the Wildwood School, a State approved private school located in Schenectady, New York. The child was placed on a 12 month basis, commencing with the Summer of 1989.

In February, 1990, petitioner moved her residence to the City School District of the City of Schenectady. On March 1, 1990, respondent's CPSE recommended that the child remain in the Wildwood School through August, 1990. The chairperson of respondent's elementary subcommittee of the CSE observed the child at the Wildwood School, on April 27, 1990, and asked respondent's administrator for elementary special education programs and the supervisor of the BOCES special education programs to observe the child. The Schenectady and BOCES supervisors visited Wildwood on June 7, 1990, where they observed the child playing during recess for approximately 30 minutes and spoke with the child's teacher and speech therapist.

On June 21, 1990, the elementary subcommittee of the CSE met to recommend a classification and placement for the child as of September, 1990, when he would be of school age, i.e. at least 5 years old. Petitioner was not present at the June 21, 1990 meeting. The subcommittee proceeded in petitioner's absence. The record does not reveal what, if any, attempts the subcommittee made to assure petitioner's participation in the meeting, as required by 34 CFR 300.345 (c). The record reveals that petitioner was sent a notice of the meeting, which erroneously designated it as a meeting of the CPSE, rather than of a subcommittee of the CSE. Petitioner did not receive the written notice of the meeting until June 22, 1990. The child's teacher at Wildwood also did not receive timely notice of the meeting, thereby effectively precluding her participation in the meeting, in violation of 34 CFR 300.348 (b).

The subcommittee recommended that the child be classified as multiply handicapped and that he be placed in a comprehensive development skills (CDS) class of the BOCES. Petitioner received two written notices, each dated July 2, 1990, informing her that the subcommittee had recommended that the child be placed in a BOCES CDS class in the Altamont Elementary School of the Guilderland Central School District and the Stevens Elementary School of the Burnt Hills Ballston Lake Central School District, respectively. Petitioner testified at the hearing that she received the notice with regard to the Altamont Elementary School on July 28, 1990, and the notice with regard to the Stevens Elementary School on August 3, 1990. By letter dated August 2, 1990, petitioner requested a hearing to review the recommendation of the subcommittee.

On August 21, 1990, petitioner met with respondent's CSE, which reviewed the recommendation of the subcommittee, in accordance with the provisions of Education Law Section 4402 (1)(b)(1)(b). That section provides that a subcommittee of a CSE must refer to the CSE any matter in which the subcommittee's recommendation concerning a change or modification in the identification, evaluation, educational placement or provision of a free appropriate public education to a child is not acceptable to the child's parent (Application of a Child with a Handicapping Condition, Appeal 90-13). The CSE, after listening to members of the subcommittee of the CSE, the BOCES supervisor, petitioner and representatives of the Wildwood School, recommended that the child attend the BOCES CDS class at the Stevens Elementary School as had been recommended by the CSE's subcommittee.

The child attended the BOCES class on September 6, 1990, the first day of school of the 1990-91 school year. However, he was placed by his mother at the Wildwood School for the rest of the 1990-91 school year. Respondent provided the child with transportation to the Wildwood School in accordance with the provisions of Section 4402 (4)(d) of the Education Law during the 1990-91 school year. During July and August, 1991, the child attended the Wildwood School, at public expense.

On September 7, 1990, petitioner filed another written request for a hearing. The hearing commenced on October 31, 1990 and after 8 days of hearing, ended on January 9, 1991. At the hearing, petitioner asserted that respondent had not provided an adequate IEP for the child and had failed to offer an appropriate program to meet the child's needs. Petitioner also asserted that respondent was obligated to pay for the child's instruction at the Wildwood School during the 1990-91 school year, because it had not provided an appropriate placement. Finally, petitioner claimed that respondent was obligated to pay for her child's tuition during the pendency of the proceeding to challenge the CSE's recommendation, in accordance with the provisions of Section 4404 (4) of the Education Law.

The hearing officer, in an undated decision which was received by the parties on or about May 21, 1991, found that the IEP for the child, which the subcommittee had prepared and the CSE had approved, was inadequate and failed to comply with State regulations. Specifically, the hearing officer found that the child's level of academic achievement and annual goals had not been adequately described on the IEP, and that the IEP did not adequately describe the amount of speech/language therapy, occupational therapy, physical therapy and social work services which the subcommittee and CSE had recommended that the child receive. Notwithstanding respondent's failure to prepare an adequate IEP, the hearing officer found that the recommended BOCES CDS class was appropriate to meet the child's needs.

The hearing officer denied petitioner's request for tuition reimbursement, because he held that respondent had offered an appropriate placement, and that the Wildwood School was an inappropriate placement because it was not the least restrictive environment for the child. With regard to petitioner's assertion that the Wildwood School was her child's then current placement for purposes of Section 4404 (4) of the Education Law, the hearing officer found that the child was no longer eligible to remain at the Wildwood School because he was of school age and that he should have been placed in a public school program comparable to that of the Wildwood School. The hearing officer found that the BOCES CDS class was a comparable placement. As a remedy, the hearing officer remanded the matter to the CSE to prepare a new IEP for the child, and to thereafter develop an appropriate placement for him.

Before reaching the merits of petitioner's appeal, I will first consider petitioner's objection to the submission of a supporting affidavit by the chairperson of the CSE, with the answer, and to the inclusion of a cross-appeal by respondent in its answer to the petition. Although petitioner does not dispute respondent's right to cross-appeal from the hearing officer's decision (34 CFR 300.510 [a]), she asserts that the cross-appeal is untimely because it was not served upon her counsel until 57 days after respondent had received a copy of the hearing officer's decision. I must note that there is nothing in Part 279 of the Regulations of the Commissioner of Education which precludes a board of education from submitting a cross-appeal as part of its answer to a petition and that both the Commissioner of Education and I have accepted cross-appeals in answers (Application of Handicapped Child, 24 Ed. Dept. Rep. 68; Application of a Child with a Handicapping Condition, Appeal No. 90-17; Application of a Child with a Handicapping Condition, Appeal No. 91-14). I also note that petitioner consented to respondent's request for an extension of time in which to file an answer, and has not been substantially prejudiced by the delay (Applications of Bd. of Ed. Hoosic Valley CSD and a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 129). While petitioner asserts that it would be unfair to allow respondent to raise a new issue in its cross-appeal, I note that the issue of the adequacy of the child's IEP was thoroughly discussed before the hearing officer and that petitioner has attached to her reply to the answer a portion of her brief to the hearing officer relating to this issue. Consequently, I find that petitioner has not been prejudiced by respondent's cross-appeal.

Petitioner objects to the submission of an affidavit by the CSE chairperson, on the ground that the information set forth on the affidavit should have been presented as testimony at the hearing, and that such information is not required to afford a basis for the State Review Officer to render a decision in this review. I must note that petitioner has annexed as an appendix to her petition an affidavit by the director of the Wildwood School, the information in which could also have been presented by testimony or other evidence at the hearing. Although I find that neither affidavit is dispositive of the issues raised in this appeal and therefore necessary, I will nevertheless exercise my discretion in accepting both affidavits.

Petitioner asserts that the hearing office erred in finding that the BOCES placement recommended by the CSE was appropriate to meet the needs of her child. Petitioner contends that such finding is inconsistent with the finding by the hearing officer that the child's IEP which was prepared at the June 21, 1990 meeting of the subcommittee of the CSE was inadequate. In addition, petitioner asserts that the recommended program was inadequate because it was not equipped to provide computer-assisted instruction at the beginning of the school year, and in any event, did not provide an instructional program which was integrated with the child's speech therapy throughout the school day. Petitioner also asserts that the recommended program did not provide intensive one-to-one instruction, and did not include children with needs similar to those of her child.

Respondent asserts that the child's IEP provided all of the information required by State regulation, and that the format of its IEPs has been approved by the State Education Department. Therefore, respondent contends that the hearing officer erred in finding that the child's IEP was inadequate. Respondent further contends that the hearing officer correctly found that the BOCES placement was appropriate and that respondent was not obligated to pay for the child's tuition for the 1990-91 school year.

Respondent is responsible for providing an appropriate program for each of its children with handicapping conditions pursuant to the Individuals with Disabilities Education Act (20 USC 1401 et seq) and Article 89 of the Education Law. An appropriate program must include instruction specifically designed to meet the unique needs of the child, supported by such services as are necessary to permit the child to benefit from instruction (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176). It is well established 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 child's evaluation (Matter of Handicapped Child, 23 Ed. Dept. Rep. 386), and which considers the child's present levels of development and individual needs (8 NYCRR 200.4 [c][2]). An IEP must also set forth specific goals for the child which address the various components of the child's handicapping condition (Matter of Handicapped Child, 25 Ed. Dept. Rep. 17; Matter of Handicapped Child, 25 id. 112). An IEP must also be sufficiently specific to fairly apprise the child's parents of the nature of the proposed program and/or placement (Matter of Handicapped Child, 25 Ed. Dept. Rep. 17; Matter of Handicapped Child, 25 id. 260).

I find that the IEP prepared by the subcommittee and approved by the CSE is inadequate for the purpose of providing sufficient information to petitioner and to the staff at BOCES who would be required to provide services to the child. For petitioner, the IEP reveals that the CSE has recommended a BOCES CDS class, with no indication of the location of the class, and virtually no information about the class, except that the class size is "12 to 1 to 1 to 3" and the class will be held for 5 hours a day, five days a week. The portion of the IEP concerning related services reads: "speech 3x as provided by program; social work per program; O.T. per program and P.T. per program". 8 NYCRR 200.4 (c)(2)(v) requires that the recommendation of a CSE, which is reflected in an IEP, indicate the amount of time per day a child will receive related services, which this IEP obviously does not do.

The CSE's failure to specify the amount of services to be provided to the child appears to be the result of the subcommittee's belief that the BOCES would ascertain the child's needs and develop a more specific plan. The chairperson of the subcommittee testified at the hearing that specific details about the child's program would be added when the child's Phase II IEP was developed by the BOCES staff. However, it is well established that each CSE has the responsibility to ascertain a pupil's needs and to recommend the necessary services to address those needs, and may not delegate to others the task of determining the amount or nature of those services (Application of a Child with a Handicapping Condition, Appeal 90-12; Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 291; Application of a Handicapped Child, 26 id. 100; Application of a Handicapped Child, 21 id. 356).

State regulation requires that a child's IEP report the child's present levels of performance and indicate the child's individual needs with respect to academic achievement, social development, physical development and management needs (8 NYCRR 200.4 [c][2][i]). The IEP prepared by the subcommittee of the CSE lists the child's individual needs as: "learning rate-severely delayed; social development-severely delayed, responsive to others; physical development-poor balance, awkward manual dexterity; management issues-close supervision, 1 to 1 instruction". Although the child's age and the nature of his handicapping condition may have precluded precise measurements of each of his skills on standardized tests, the phrase "severely delayed" is too imprecise to be of use to those who must implement the IEP. I must also note that the record does include a substantial amount of information about the child and his performance of various tasks while at the Wildwood School during the 1989-90 school year. In view of the testimony of the chairperson of the subcommittee that the subcommittee had relied upon information provided by the Wildwood School and the UCP, it is difficult to understand why the IEP did not set forth more precise and meaningful information about the child.

While the subcommittee may rely upon the information of both the UCP and the Wildwood School, I must note the subcommittee must nevertheless obtain sufficient current information about the child to prepare an IEP which will address the child's present needs (Application of a Child with a Handicapping Condition, Appeal No. 91-21; (Matter of a Handicapped Child, 24 Ed. Dept. Rep. 417). I also note that the record does not include a social history of the child, which is required by State regulation (8 NYCRR 200.4 [b][1]).

The child's IEP is also defective with respect to the child's annual goals. Goals such as "to improve self-help skills" or "to increase compliant behavior" are too imprecise to provide direction to the child's teacher as to specific expectation of the CSE or to address the individual needs of the child (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 343; Application of a Child with a Handicapping Condition, 27 id. 305). An IEP which does not accurately report a child's present level of performance, sufficiently detail a child's needs or set forth individualized annual goals is inadequate to support the placement recommended by the subcommittee of the CSE (Application of a Child with a Handicapping Condition, Appeal No. 91-10).

I must also find that respondent has not met its burden of proof in demonstrating the appropriateness of the recommended BOCES class. The record reveals little information about the nature of the class. Respondent relied upon the testimony of the BOCES supervisor of special education, who opined that the BOCES could meet the needs of the child. The supervisor testified that the CDS program was newly developed for implementation in the 1990-91 school year, and that it was intended to provide a structured environment with an emphasis on speech and language. The supervisor further testified that the program would use an interdisciplinary approach involving the teacher, therapists and aides. However, very little information was provided about the needs of the other pupils in the recommended class.

State regulation requires that children with handicapping conditions who are placed in special classes be grouped by similarity of individual needs, including academic or educational achievement with similar learning characteristics, social development, physical development, and management needs (8 NYCRR 200.6 [f][2]). A CSE must have adequate information about the needs of the other children in a BOCES class to determine the similarity of needs, before it can recommend such a class for a child (Application of a Handicapped Child, 25 Ed. Dept. Rep. 81). The record in this case strongly suggests that the CSE and its subcommittee had no such information. The BOCES supervisor testified that the recommended class would have no more than seven or eight children, at least one of whom would exhibit autistic-like behavior. The BOCES supervisor also testified that petitioner's child would be off-task most of the time, as compared with the other children in the BOCES class. No other information about the children in the class was provided, despite the fact that petitioner raised the issue of similarity of needs in her testimony and the testimony of her witnesses.

Petitioner visited the recommended class on September 11, 1990, at which time she observed one child who appeared to be able to write his name without assistance, and three children working on what petitioner described as gross and fine motor skills far below those of her child. A social worker from the Wildwood School who accompanied petitioner on her September 11 visit to the BOCES class testified that the management needs of at least three of the children she observed were far less intensive than those of petitioner's child. In the absence of evidence as to the learning characteristics and needs of the other children in the BOCES class, I find that respondent has not met its burden of proof in establishing that such class was appropriate for petitioner's child (Application of a Child with a Handicapping Condition, Appeal No. 91-8; Application of a Child with a Handicapping Condition, Appeal No. 90-21; Application of a Child with a Handicapping Condition, Appeal No. 90-14).

With respect to petitioner's request for reimbursement for tuition at the Wildwood School for the 1990-91 school year, I find that the hearing officer erred in finding petitioner was not entitled to reimbursement. A parent is eligible for tuition reimbursement, if the placement recommended by the CSE is inappropriate, the placement selected by the parent is appropriate, and equitable considerations support the claim for reimbursement (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359; Matter of Northeast CSD v. Sobol et al., AD 2d , Third Dept, July 25, 1991; Application of a Child with a Handicapping Condition, 27 Ed. Dept. Rep. 284; Application of a Child with a Handicapping Condition, Appeal No. 90-8). In his decision, the hearing officer misapplied the Burlington decision and limited its application to situations in which a parent unilaterally changed the placement of his or her child. I find that there is no legal basis for that position (Matter of Northeast CSD v. Sobol et al, supra).

The hearing officer also found that petitioner failed to satisfy the second part of the Burlington criteria, i.e., that she had not selected an appropriate program for the child. While conceding that the program of the Wildwood School was as good as, if not superior to, the recommended BOCES class, the hearing officer found that the Wildwood class was not the least restrictive environment for the child. Nonetheless there appears to be no genuine dispute as to the suitability of the Wildwood School program. The record reveals that the child has received a multi-faceted language development program, including computer based learning with multi-dimensional reinforcement and signing. Individual speech therapy has been used to not only build the child's language, but also to develop his attention span. The record reveals that the child has made significant progress while attending the Wildwood School.

Federal and State regulations require that, to the maximum extent appropriate, each child with a handicapping condition must be educated in the least restrictive environment (34 CFR 300.550 [b][1] and 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, except for occasional contact with non-handicapped children in a day care facility for the children of Wildwood employees, there is no opportunity for contact with non-handicapped peers for pupils in the Wildwood class attended by petitioner's child. However the record further reveals that petitioner's child relates primarily to adults. The child's teacher at the Wildwood School testified that during the 1989-90 school year the child began to become more interested in his peers, but that his interaction with peers, usually on a one-to-one basis, had to be carefully monitored by an adult. The child's speech therapist at the Wildwood School confirmed the teacher's account of the pupil's limited ability to interact with peers. The therapist further testified that the child would not do well in a group situation, and questioned whether the child had gained any purposeful information from his peers. I also note that the UCP physician testified that the child requires a very structured environment, to prevent overstimulation.

The subcommittee chairperson testified that, despite the child's lack of involvement with peers, the child should nevertheless receive exposure to non-handicapped peers under supervision. Nevertheless, the IEP prepared by the subcommittee does not provide for any mainstreaming activity. The BOCES supervisor testified that mainstreaming opportunities at the Stevens Elementary School existed during lunch, recess, arriving and leaving school, and that children from the CDS class could spend part of the day in a regular kindergarten or first grade, if appropriate. I find that the benefit of exposure to non-handicapped peers would be of questionable value to this child, in view of the danger of overstimulation in unstructured activities and the child's minimal interaction with any peers. Accordingly, I further find that the child's placement in a facility such as the Wildwood School is consistent with the requirement of education in the least restrictive environment.

Having found that respondent has not met its burden of proof as to the appropriateness of the placement recommended by the CSE and that the placement selected by petitioner for the 1990-91 school year was appropriate for the child, I further find that equitable considerations support petitioner's request for tuition reimbursement. The CSE did not provide timely notice to petitioner of its subcommittee meeting on June 21, 1990. Although a member of the subcommittee was advised by petitioner on June 22 that she had not received the notice prior to the meeting, the subcommittee did not offer to reconvene to afford petitioner the opportunity to participate in the development of her child's IEP. Petitioner did not receive formal notice of the subcommittee's recommendation until approximately one month after the subcommittee met. Despite petitioner's prompt request for an impartial hearing, the CSE scheduled its meeting for just prior to the beginning of school for the 1990-91 school year. Although petitioner requested the opportunity to visit the recommended BOCES class in June, 1990, she was advised by a representative of BOCES that she would not be able to do so until September.

Petitioner also challenges the hearing officer's conclusion that the Wildwood School was not the child's then current placement during the pendency of the hearing to review the recommendation of the CSE and its subcommittee. She asks that I find that the Wildwood School was, and is, the child's then current placement for purposes of Section 4404 (4) of the Education Law.

The hearing officer reasoned that since the child was no longer eligible, as a result of his age, to remain in a preschool program pursuant to Section 4410 of the Education Law, there was no obligation to maintain that placement during the proceeding in which petitioner challenged the CSE's recommendation. The hearing officer also construed the provisions of 8 NYCRR 200.16 (h)(2)(ii) as precluding a child from remaining in a preschool program during the pendency of due process proceedings, if such child is no longer eligible for services under Section 4410 of the Education Law.

I find that the hearing officer misconstrued the provisions of 8 NYCRR 200.16 (h)(2)(ii), which read in material part as follows:

"... nothing in this subparagraph shall require that a child with a handicapping condition remain in a preschool program for which he or she is no longer eligible pursuant to section 4410 of the Education Law during the pendency of any proceeding brought pursuant to this part ..."

Pursuant to Section 4410 of the Education Law, a child with a handicapping condition who is between the ages of three and five years is entitled to receive special education services. If the child becomes five years old on or before December first of a school year, the child is not eligible for services under Section 4410, but is eligible to receive services as a school age child under Sections 4401 and 4402 of the Education Law. Although this child became 5 years old in February, 1985 and would not be eligible to receive preschool special education services pursuant to Section 4410 of the Education Law as of September 1990, it does not follow that the child need not be provided with comparable special education services during the pendency of an appeal from the CSE's recommendation for his first year of education as a school age child. The last mutually agreed upon placement of the child was at the Wildwood School, which the record reveals is approved by the State Education Department to provide special education to school age children, as well as to preschool children. While the provisions of 8 NYCRR 200.16 (h)(2)(ii) reflect the fact that a school age child could not remain in a program which was not approved for school age children, they do not preclude the continued placement of a school age child in a program which has been approved for school age children. Therefore, I find that the child's then current placement for purposes of Section 4404 (4) of the Education Law is the Wildwood School.

THE APPEAL IS SUSTAINED, AND THE CROSS-APPEAL IS DISMISSED.

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

IT IS FURTHER ORDERED that, upon the submission of proof by petitioner to respondent of the amount of tuition paid by petitioner to the Wildwood School for the child's tuition from September, 1990 through June, 1991, respondent shall reimburse petitioner for such expenditure, and

IT IS FURTHER ORDERED that, within 30 calendar days after the date of this decision, respondent's CSE, or an appropriate subcommittee thereof, shall recommend an appropriate placement for the child for the 1991-92 school year.