92-004

Petitioner appeals from the determination of an impartial hearing officer directing petitioner to provide a transitional special education program of unspecified duration for respondents' child, who has been receiving instruction at home since October, 1991 and for whom petitioner's committee on special education (CSE) recommended a regular education program with resource room services for the 1991-92 school year. Petitioner also appeals from that portion of the hearing officer's decision which directed petitioner to reimburse respondents for the cost of an independent occupational therapy evaluation of the child. The appeal must be sustained in part.

Respondents' child, who is now eleven years old, was initially identified as a child with a handicapping condition in 1985, while he was enrolled in a public school kindergarten in New Jersey. The child was classified as neurologically impaired, with deficits in visual motor, auditory motor and attention/concentration skills. The child was also hyperactive, and medication was prescribed for his hyperactivity. The child was initially placed in a regular educational program, with resource room services. He was subsequently placed in a special education class for at least some portion of first grade. During the 1987-88 school year, the child attended a self-contained special education class at the private Community School in Teaneck, New Jersey.

Prior to the start of school in September, 1988, respondents became residents of the Fayetteville-Manlius Central School District. On the basis of his previous special education placement, the child was enrolled in a self-contained special education class with a 12: 1+1 child-staff ratio in the Fayetteville Elementary School. The teacher of the special education class testified at the hearing that, almost immediately, the child had been successfully mainstreamed for physical education. He thereafter was assigned to a regular education reading group and he was also mainstreamed for music. Instruction in other subjects was provided by the child's special education teacher during third grade.

In October, 1988, the child was evaluated by petitioner's school psychologist, who reported that the child had achieved a verbal IQ of 141, a performance IQ of 115 and a full scale IQ of 132. The psychologist further reported that the child's inability to remain on task and concentrate interfered with his cognitive performance, and that the child's visual motor skills were below expectation. In addition, the school psychologist found that the child's graphomotor skills and fine motor coordination were markedly deficient. The psychologist noted that the child lacked confidence and experience in social situations, and that projective testing had revealed that the child had low self-esteem. Petitioner's psychologist also referred to the results of a March 1988 neurological evaluation of the child at the New Jersey Medical School, which had disclosed evidence of the child's severe attention deficit disorder and hyperactivity. The school psychologist further reported that the child was reading at the sixth grade level and his mathematical skills were at the fourth grade level. The psychologist opined that the child needed an accelerated reading program with enrichment, and recommended that the child be classified as learning disabled and that he remain in his special education class.

The CSE did not meet to recommend a classification and program for the child, until March 2, 1989. The child's special education teacher testified at the hearing that she relied upon the child's individualized education program (IEP) from the private school in New Jersey to provide instruction to the child prior to the development of an IEP for the child by petitioner's CSE in March, 1989. At the March 2, 1989 meeting, the CSE recommended that the child be classified as learning disabled, and that he remain in the special class to which he had been assigned in September, 1988, except for mainstreaming in special subjects such as music and physical education. In the child's IEP which was prepared at the March 2, 1989 CSE meeting, the child was described as needing a highly structured environment, with a minimum of changes in routine which were difficult for him. The IEP also provided that the child should be assigned short tasks because of his restlessness. The CSE recommended the use of alternative testing techniques, such as extended time limits, alternate testing locations and dictating answers to questions. The CSE also recommended that the child receive occupational therapy twice a week to address his deficits in visual motor skills, fine motor skills, motor planning, and the child's tactile defensiveness. Tactile defensiveness is a neurological condition which is manifested by extreme sensitivity to tactile contact with objects or substances, such as those used in art classes, as well as a strong aversion to bodily contact with other persons.

At the hearing, the child's third grade special education teacher testified that the child had been successfully mainstreamed for reading, physical education and music. The teacher further testified that the child was a capable reader and had good oral expression, but that his written expression was very labored because of his fine motor disabilities. The child's deficit in sequential processing was most noticeable in mathematics, according to the teacher. The teacher also testified that the child's attention deficit was especially apparent when he had not taken his medication, but that the child could typically remain seated during a class period. The teacher also testified that the child had evolved socially during the 1988-89 school year from a frightened child who wouldn't speak directly to other children into a child who would walk with, and talk to, his peers. The child received group counseling, although his initial IEP did not provide for that related service. Academically, the child made progress while in third grade.

During the 1989-90 school year, the child remained in a self-contained class for instruction in mathematics, but received instruction in other subjects in regular education fourth grade classes. The child's teacher for spelling, reading, language arts and science testified that the child made satisfactory academic progress, and generally participated in class discussions. The teacher found that the child was more likely to remain on task in activities which he enjoyed, such as reading, but had to be refocused when required to do long written assignments. Although the child had difficulty with writing, his teacher testified that the child had made progress in writing during fourth grade. The teacher testified that the child did not display a major deficit in organizational skills, but did display some evidence of a sequential processing deficit in his spelling assignments. Although the child had some initial social problems, his teacher testified that those problems were resolved. The child received satisfactory grades in all subjects for fourth grade. On a standardized achievement test administered in March, 1990, the child demonstrated significant gains in language skills and mathematics since he was last tested in March, 1989.

On May 9, 1990, the CSE recommended that the child be assigned to a self-contained special education class in petitioner's Eagle Hill Middle School to receive instruction in mathematics, social studies and writing for the 1990-91 school year. The CSE further recommended that the child be mainstreamed for reading, science and special subjects. The CSE's chairperson at the time of its recommendation testified that, based upon the advice of the child's fourth grade teachers, the CSE had intended to recommend that the child not be assigned to a special education class, but that he receive supportive services in a resource room, and that he attend the Wellwood Middle School with the other children he had met while attending the Fayetteville Elementary School. However, the CSE acceded to respondents' request that the child continue in a special class for fifth grade, which was only available in the Eagle Hill Middle School. The CSE recommended that the child continue to receive occupational therapy and counseling.

The child's initial special education teacher for fifth grade testified that the child's academic skills were clearly superior to those of the other children in the special education class, and that it was originally intended that the child would receive primary instruction in that class only until the child was emotionally able to function in a mainstream setting. Although the child related well to adults, his teacher testified that the child had difficulty interacting with other children, who teased or taunted him and that he tended to internalize the disparaging remarks which those children made. The teacher also testified that the child needed assistance with organizational skills throughout the day, and that he was especially distractible when doing activities which he did not like. The teacher opined that the child would continue to require a program with an emphasis on academics, but one which was carefully structured and which accommodated the child's sequential processing deficit.

In December, 1990, respondents asked the CSE chairperson to ascertain whether a program for gifted children who were learning disabled could be found for the child. The chairperson was unable to locate a program of that nature either through the BOCES or neighboring school districts. In February, 1991, the child's special education class was divided into two classes. Respondents' child was assigned to another special education teacher, who testified that the child had performed well academically, but was occasionally disruptive in class. The teacher speculated that the child's distractibility was the result of his boredom. When questioned about the verbal and physical abuse which the child had allegedly received from other children, this special education teacher could not recall any incidents of abuse. The child's fifth grade reading teacher testified that the child had done very well in that teacher's mainstreamed reading and science classes, and had not displayed inappropriate behavior in those classes. The child's performance on a standardized achievement test administered in March, 1991 revealed continued gains in language arts and mathematics, but not as significant increases as had occurred between third and fourth grades. In May, 1991, the child's score on the New York State Pupil Evaluation Program Test in Writing was below the statewide reference point, because he did not write a composition on the topic presented in one-half of such test.

In April, 1991, respondents removed the child from school for one week, upon the advice of the child's private psychologist. The child's mother testified at the hearing that the child was becoming overwhelmed and had expressed possible suicidal thoughts. In late May, 1991, respondents again removed the child from school, after he became upset in school on the day after he had an altercation with another child in his special education class. The child was also being seen by a psychiatrist, who recommended to respondents that the child remain out of school for the rest of the school year.

On May 14, 1991, respondents had a preliminary meeting with the CSE with regard to the child's program for the 1991-92 school year. On May 28, 1991, the CSE recommended that the child be reassigned to the Wellwood Middle School for a regular education program in the 1991-92 school year, supported by a minimum of one period each day of resource room services. The CSE further recommended that the child receive one thirty minute session of group counseling each week, and an additional weekly session of individual counseling after consultation with the child's psychiatrist. The CSE also recommended that occupational therapy be discontinued for the child.

On June 26, 1991, respondents asked for an impartial hearing to review the program which the CSE had recommended. The hearing officer initially appointed by petitioner recused himself from the hearing, and a second hearing officer was appointed. On August 22, 1991, the hearing commenced, continued for eight days, and ended on October 29, 1991. In a decision dated December 9, 1991, the hearing officer found that the child's IEP for the 1991-92 school year might have been appropriate for him when drafted in May, 1991, but that the IEP was no longer appropriate in view of the child's deteriorating emotional condition. The hearing officer directed the board of education to provide a transitional program for the child in a self-contained class with children of similar intellectual abilities and special educational needs, each of whom would be mainstreamed where appropriate. The hearing further directed the board of education to provide the child with enriched academic activities in both the transitional program and in subsequent programs. Although she supported the CSE's finding that the child would not require occupational therapy, the hearing officer nevertheless found that a transitional program of occupational therapy would be beneficial to the child. The hearing officer also directed the board of education to reimburse respondents for the cost of an independent occupational evaluation which they obtained, upon the ground that the CSE's recommendation to discontinue occupational therapy was unsupported by any evaluation when such recommendation was made. The hearing officer further found that there were a number of procedural defects in the way CSE meetings had been conducted and IEPs had been prepared, as well as the manner in which petitioner appointed her to serve as a hearing officer.

Two procedural issues must be addressed at the outset. First, respondents have requested that I issue an interim order requiring petitioner to implement an interim program for the child which is comparable to the program ordered by the hearing officer, on the ground that the child needs instructional services immediately. The record reveals that the parents and the board of education agreed to an interim program for the child on August 21, 1991, pursuant to which the child would attend regular education sixth grade classes with resource room services. However, on the last day of the hearing, respondents' attorney advised the hearing officer that they had withdrawn the child from school, on the advice of the child's psychiatrist. The hearing officer denied respondents' request to extend the hearing to consider the appropriateness of the interim placement. Respondents have submitted an affidavit by the child's psychiatrist concerning the reasons for the child's withdrawal from school. I have not considered that affidavit, nor will I grant the interim relief requested by respondents, because it is not necessary that I do so. This decision will address the appropriateness of the program recommended by the CSE in May, 1991 and will provide a final direction to the petitioner with regard to an appropriate program for the child for the remainder of the 1991-92 school year.

Respondents assert that petitioner's appeal is untimely because the petition was served upon them more than 30 days after the hearing officer's decision was rendered. Petitioner asserts that it received the decision on December 11, 1991, and has submitted proof that the petition was served upon respondents on January 9, 1992. Respondents assert that, pursuant to 8 NYCRR 279.2, a parent must initiate an appeal within 30 days after receipt of a hearing officer's decision, but that Part 279 of the Regulations of the Commissioner of Education does not afford a board of education a similar right to bring an appeal within 30 days after receipt of a hearing officer's decision. Although respondents are correct that Part 279 is silent on the period within which a board of education must bring an appeal, I find that petitioner complied with the intent of the law and regulation to timely pursue the appeal within 30 days after receipt of the hearing officer's decision, and I shall entertain the appeal (Applications of Board of Education Hoosic Valley Central School District and Child with a Handicapping Condition, 30 Ed. Dept. Rep. 129).

Petitioner asserts that the hearing officer exceeded her authority by ordering a new program for the child after finding circumstances had changed, and by premising the finding that circumstances had changed upon facts which were not in the record before the hearing officer. With regard to the alleged facts outside the record, petitioner asserts that the hearing officer's finding of changed circumstances was based upon the fact that the child had been removed from school on the last day of the hearing, and that the only information about such removal which the hearing officer had was a post-hearing memorandum of law and an offer of proof submitted to the hearing officer by respondents' attorney.

The post-hearing memorandum of law and the offer of proof to which petitioner refers are not part of the record before me. Neither document is necessary to resolve the issue. The hearing officer found that the child's deteriorating emotional condition since the child's IEP was prepared warranted modifications to the IEP. On September 30, 1991, the child's psychiatrist testified about the child's emotional status, including the difficulties the child had while in the interim sixth grade program. The psychiatrist testified that the child has an adjustment disorder with mixed emotional features, and that he was "falling apart" emotionally. I find that the psychiatrist's testimony affords a basis for the hearing officer's finding of changed circumstances. Therefore, petitioner's assertion cannot be sustained.

With regard to the hearing officer's authority to order a new program for the child, petitioner asserts that the hearing officer should have remanded the matter to the CSE after finding that circumstances had changed. I do not agree. To avoid needless duplication of hearings, a hearing officer may consider issues which arise during the course of a hearing (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 150). Although the primary task of a hearing officer is to determine the appropriateness of the program or placement recommended by a CSE, a hearing officer has the authority to require a board of education to provide needed elements of a child's program or placement, without remanding the matter to the CSE, if the record supports the hearing officer's conclusion (Application of a Child with a Handicapping Condition, Appeal No. 90-17).

Petitioner asserts that the hearing officer's decision is inherently contradictory in finding that the CSE erred in placing the child in a special class, rather than in a regular education program for fifth grade, while directing that the child be placed on an interim basis in a special class for sixth grade to remedy the previous error. Petitioner also asserts that the special class placement is not supported by the record, and is not the least restrictive environment for the child.

Before dealing with the hearing officer's remedy, I will first determine whether the program recommended by the CSE in May, 1991 was appropriate for the child. An appropriate program begins with an IEP which adequately addresses the child's needs and sets forth a clear statement of annual goals for the child, as required by 8 NYCRR 200.4 (c)(2)(iii). My review of the child's IEP prepared at the May 28, 1991 meeting of the CSE reveals that the annual goals set forth in the IEP are inadequate. Indeed, the short-term objectives for the child are more appropriate as annual goals. The information about the child's needs is presented in a fragmented manner, and is not directly related to specific annual goals. In preparing a new IEP for the child, the CSE should consider the description of the child's needs and recommendations for addressing those needs set forth in the October, 1991 psychological evaluation of the child by petitioner's psychologist.

The key issue in this appeal is the amount of primary special education instruction which the child requires. Although I concur with the hearing officer's finding that the child should be provided with at least some primary special education instruction in social studies, mathematics, keyboarding and appropriate daily social skills, he also requires appropriate instruction in organizational skills and writing. Moreover, I find that the record does not support the hearing officer's conclusion that the child's special education needs can be adequately addressed by a transitional special class program and thereafter solely by the provision of resource room services.

The child's disability is characterized primarily by his attention deficit disorder with hyperactivity, and an adjustment disorder with mixed emotional features. Reports by an independent psychologist and petitioner's school psychologist reveal that the child's attention deficit disorder includes high motor activity with fidgety behavior, distractibility, difficulty with concentration and focusing attention, and impulsivity. The child was medicated for his attention deficit disorder, until June, 1991, when his psychiatrist discontinued that medication but placed the child on another medication which has a secondary effect of addressing the child's attention deficit disorder. The child's psychiatrist testified that the child's adjustment disorder is manifested by emotional reactions to stress in the environment, resulting in anger, fluctuating moods and irritability. The psychiatrist further testified that, in social situations, the child may be misconstrued because of a lack of social graces and an inability to communicate in a subtle form, and that peer ridicule and the feeling that he does not fit in a mainstreamed group are the primary causes of the child's adjustment disorder. The independent psychologist found, and petitioner's school psychologist agreed, that the child also has a sequential processing deficit, which does not hinder his ability to comprehend information, but it does significantly impair his ability to organize information, perform sequential mental tasks, and express himself in writing. For example, in mathematics the child's understanding of concepts and applications is substantially greater than his ability to perform computations. The child's classification of learning disabled, based upon the severe discrepancy between his cognitive ability and his achievement, is not in dispute.

The history of the child's academic and social performance over the past three years supports the child's continued need for a special class placement, on a part-time basis, rather than a mainstream program with only supportive services in a resource room program. The record reveals that the child can succeed in, and requires the challenge of, regular education with his chronological peers in subjects or portions of subjects which do not require extensive written tasks or multi-step thought processes in class. He does not require resource room assistance in those areas in which he can work at grade level. However, the child requires a special class for some primary instruction, as well as supervision, and emotional support. A special class would also provide a place where the child can receive appropriate assistance when he is unable to meet the social demands of a regular education setting.

A special class should provide the child with primary instruction in mathematical computation, written expression, spelling in context and social studies. The child must also receive instruction to develop compensatory skills, such as outlining assignments, keyword note-taking, breaking down large tasks into smaller tasks, and using a word processor and tape recorder. These compensatory skills will enable the child to function in an increasingly curriculum based educational program in the upper grades. A special class setting is also appropriate to develop the child's social skills for more satisfactory interaction with his peers, by teaching him that not all remarks are to be taken literally and working to control his inappropriate responses in social situations. Such assistance should be in addition to school provided and private counseling. The content of the child's counseling should be coordinated with the child's psychiatrist. The use of a special class as a base or homeroom for the child will allow petitioner to provide more supervision in the child's non-structured activities, such as lunch and recess where the child has had unsatisfactory social experiences. It will also ensure that a special education teacher will be available on a consistent basis to help the child manage his academic and social difficulties.

The assignment of the child to a special class should be for a relatively small portion of the school day. It is not necessary that petitioner create a gifted learning disabled class, as it has suggested would be required to implement the transitional program in the hearing officer's decision. The composition of the special class may vary, depending upon the nature of the instruction which is being provided at the particular time. For example, the children with whom this child is grouped for primary instruction in mathematical computation may not be the same children with whom he should be grouped for instruction in writing. The size of the class should not exceed 15 children, and the size of the instructional group shall be based upon the needs of the children.

Petitioner suggests that the hearing officer's decision requiring it to provide the child with enriched instruction would require the child to be admitted to petitioner's gifted and talented program without regard to the criteria for admission which petitioner has established. Petitioner's position is untenable. The hearing officer did nothing more than require that the child receive enriched instruction in areas where the child has superior ability and achievement. I note that in his initial psychological evaluation of the child in October, 1988, petitioner's school psychologist recommended a program of enriched instruction.

Petitioner also challenges the hearing officer's finding that the child requires a transitional program of occupational therapy, with a goal of preparing the child to cope with his physical problems. On the record before me, I find that there is no basis for the continued provision of occupational therapy as an educationally related service. Occupational therapy has been provided to address deficits in the child's visual motor skills, fine motor skills, motor planning and the child's tactile defensiveness. The most recent evaluation of the child by petitioner's occupational therapist found that the child attained an age appropriate score on a test of visual motor integration. With regard to the child's fine motor skills, which are primarily of significance in the child's handwriting, the record reveals that the child still has difficulty with his graphomotor skills. However, it has not been established that further occupational therapy will necessarily improve the child's handwriting. The record demonstrates that an alternative to handwritten expression, such as word processing, is a far more viable solution. With regard to the child's tactile defensiveness, I note that petitioner's occupational therapist and an independent occupational therapist have expressed divergent opinions as to the severity of this deficit. The testimony of the child's teachers, as well as that of petitioner's occupational therapist, leads me to conclude that the child's condition has improved, and that the more severe reactions displayed by the child during the evaluation by the independent occupational therapist were influenced by the fact that the child was not familiar with the therapist.

The last issue presented is whether the hearing officer erred in requiring petitioner to reimburse respondents for the cost of the independent occupational therapy evaluation which was performed on October 19, 1991. The record reveals that the CSE's recommendation to discontinue occupational therapy was based upon the opinion of petitioner's occupational therapist. The therapist testified that she spoke and gave a note to the CSE chairperson prior to the May 28, 1991 meeting of the CSE, recommending that occupational therapy be discontinued. At that time, the therapist had not performed a year-end evaluation of the child. Petitioner's occupational therapist testified that she was precluded from completing an evaluation of the child because the child had been removed from school. However, that testimony is disingenuous. There is no evidence in the record that the therapist attempted to perform an evaluation prior to the CSE's meeting when the therapist had ample opportunity to do so. Indeed the therapist testified that she began a year-end assessment on June 20, 1991 and completed that assessment in July, 1991. The therapist subsequently performed an evaluation, as part of the child's triennial evaluation, on October 1, 1991, when the child returned to school.

The parent of a disabled child is entitled to obtain an independent educational evaluation at public expense, ... "if the parent disagrees with the evaluation obtained by the school district" (8 NYCRR 200.5 [a][1][vi][a]). However, a parent's right to an independent evaluation at public expense is subject to the right of a board of education to initiate an impartial hearing to demonstrate the appropriateness of its own evaluation. If the hearing officer determines that the board's evaluation is appropriate, the parent may have an independent evaluation, but not at public expense (34 CFR 300.503; 8 NYCRR 200.5 [a][1][vi][a]).

In this instance, the parents sought an independent occupational therapy evaluation prior to the completion of the board's occupational therapy evaluation. The hearing officer concluded that petitioner should pay for the cost of respondents' independent evaluation because petitioner had failed to conduct an evaluation prior to the CSE's recommendation to discontinue providing occupational therapy to the child. Although State regulation does not expressly require that an evaluation be conducted before a component of a child's special education program is discontinued, the Federal Regulations implementing Section 504 of the Rehabilitation Act of 1973 do require that an evaluation be done before "any subsequent significant change in placement" (34 CFR 104.35 [a]). The discontinuance of occupational therapy was a significant change in this child's program (18 IDELR 157). I find that the hearing officer did not abuse her discretion in declining to allow petitioner to use its failure to perform a timely evaluation as a defense against respondents' request that petitioner pay for an independent evaluation. Therefore, I will not annul the hearing officer's order that petitioner should pay for the cost of such evaluation.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that so much of the hearing officer's decision as directed the Board of Education of the Fayetteville-Manlius Central School District to provide a transitional program of instruction and occupational therapy for respondents' child be, and the same hereby is, annulled; and

IT IS FURTHER ORDERED that within 30 calendar days after the date of this decision, the CSE of the Fayetteville-Manlius Central School District shall recommend a program for the child, consistent with the tenor of this decision, for the remainder of the 1991-92 school year.