92-010

Petitioner appeals from a determination of an impartial hearing officer which found that the placement recommended by petitioner's committee on special education (CSE) for respondents' child in a special class of the Board of Cooperative Educational Services (BOCES) of Putnam and Westchester Counties for the 1991-92 school year was inappropriate, and which directed that the child be placed at the Pathway School, a State approved residential school for children with handicapping conditions. The appeal must be dismissed.

Respondents' 15 year old child is classified as learning disabled. The child's classification is not in dispute. The child has a receptive and expressive language disability which impairs his ability to acquire and process information. Psychological evaluations and the child's anecdotal records reveal that the child has experienced frustration and anger related to his learning disability. An educational evaluation in April, 1991 of the child measured the child's total reading skills at a grade equivalence of 1.9, his word attack skills at a grade equivalence of 1.8 and his passage comprehension at a 2.9 grade equivalence. He achieved a total mathematics grade equivalence of 4.1. His computation skills were measured at a 5.1 grade equivalence and his problem solving skills were measured at a 3.1 grade equivalence. In June, 1991, the child's low level of performance on a test of adolescent language did not permit petitioner's speech/language pathologist to obtain meaningful test scores in an evaluation of the child's language skills. The child was measured to have a verbal IQ of 94, a performance IQ of 118, and a full scale IQ of 105 on intelligence tests given in March, 1989.

This child's prior educational placement history was reported in my decision rendered in Appeal No. 91-24, and will not be repeated in this decision. That appeal was taken from a hearing officer's determination that a special class of the BOCES of Orange and Ulster Counties which the CSE had recommended for the child for the 1990-91 school year was appropriate, and from the hearing officer's denial of the parents' request that the child be placed in the Pathway School in Jeffersonville, Pennsylvania. In the decision in that appeal, I held that the Board of Education had not met its burden of proof in establishing the appropriateness of the recommended BOCES class because it had failed to show how such class would meet the child's needs, or that the child would be appropriately grouped with the other children in such class. However, the parents' request for an order directing the Board of Education to place the child in the Pathway School on a 12-month basis was denied because there was no evidence that the child required a 12 month placement or that an appropriate non-residential school program was not available. The CSE was ordered to conduct a vocational assessment of the child and to recommend a new placement for the child which would provide an age appropriate language oriented curriculum with instruction at the child's present level of verbal processing and comprehension.

On August 29, 1991, the CSE met to discuss the child's needs. The CSE recommended that the child be placed in an unidentified special class for academic subjects, and that he receive daily individual speech/language therapy. He would also receive one individual counseling session and one group counseling session each week. The Board of Education agreed to provide a home tutor for the child, pending the selection of a specific placement for the child. The CSE chairperson contacted 11 school districts and two private day schools, but was unable to locate a suitable program for the child. However, after the chairperson and other members of the CSE visited a special class for communication impaired children operated by the BOCES of Putnam and Westchester Counties in the Anne M. Dorner Middle School (Dorner School) in Ossining, New York, the members of the CSE agreed that it would meet the child's needs.

On October 2, 1991, petitioner's guidance counselor interviewed the child and his mother for the purpose of conducting what is defined as a Level I assessment. The child expressed to the counselor an interest in becoming an auto mechanic. His mother confirmed the child's interest in mechanical activities. The chairperson of the CSE testified at the hearing that the CSE members were aware of the vocational assessment results, but that the CSE had not used the results to determine where the child should be placed. On October 3, 1991, the CSE recommended that the child be placed in the special class at the Dorner School, which is approximately 60 miles from the child's home. The child's August 29, 1991 individualized education program (IEP) was amended to reflect the CSE's selection of the Dorner School class.

Respondents requested that an impartial hearing be held to review the CSE's recommendation. The hearing commenced on November 21, 1991, and was completed on December 19, 1991. At the conclusion of petitioner's case, respondents made a motion for a finding by the hearing officer that petitioner had not met its burden of proof regarding the appropriateness of the Dorner School and an order directing that the child be placed in the Pathway School. The hearing officer, after hearing the opposing argument of petitioner's attorney, granted respondents' motion. In his written decision of January 9, 1992, the hearing officer held that the Board of Education had failed to prove that the placement at the Dorner School would be appropriate, because the child would not have been appropriately grouped and the school did not have a behavior management program. Relying upon the evidence adduced at the prior hearing, which the hearing officer also conducted, the hearing officer found that the child would be appropriately placed in the Pathway School, on a 10-month basis.

At the outset, respondents assert that this appeal is fatally flawed by petitioner's failure to serve a notice of intention to seek review (8 NYCRR 279.2). However, the regulation upon which respondents rely does not, by its terms, apply to a board of education which initiates an appeal from a hearing officer's decision. A notice of intention is only required when a parent initiates an appeal to advise the board of education to prepare and file the record of the hearing with the Office of Counsel of the State Education Department. The board of education must fulfill this responsibility whether it is the petitioner or respondent in an appeal.

Petitioner asserts that the hearing officer erred in finding that petitioner had failed to prove a prima facie case that the recommended placement would be appropriate, and in finding that the Pathway School would be appropriate, despite the failure of respondents to present any evidence about the Pathway School at the hearing. Petitioner further asserts that a number of the hearing officer's factual findings about the similarity of the other children in the class at the Dorner School and the availability of a vocational program and a behavior management program at such School are contradicted by the record.

It is well established that a board of education bears the burden of establishing the appropriateness of the program or placement which it has recommended for a child (Matter of a Handicapped Child, 22 Ed. Dept. Rep. 487; Matter of a Handicapped Child, 23 id. 415; Application of a Child with a Handicapping Condition, 29 id. 83; Application of a Child with a Handicapping Condition, Appeal No. 90-5). An appropriate placement is one which is reasonably calculated to enable a child to receive educational benefits (Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176). State regulation requires that children in special education classes be appropriately grouped, using the criteria of levels of academic achievement and learning characteristics, levels of social development, levels of physical development and the management needs of the children (8 NYCRR 200.6(a)[3]). In this instance, the hearing officer found that the class at the Dorner School would not provide an age appropriate, language oriented program, because the child should be in a high school setting and because the other children in the class did not have comparable management needs.

Petitioner asserts that the hearing officer ignored substantial evidence in the record which established that the children in the recommended class had comparable needs to those of this child, and failed to consider that the child would be mainstreamed with peers for instruction in special subjects and for lunch. The record does not support petitioner's position with respect to the similarity of abilities and needs of the children in the special class. I find that this 15 year old child would not be appropriately grouped for instructional purposes with younger children who generally have lower cognitive abilities but who are performing at a higher level academically. With regard to the similarity of the social development of the children, the record reveals that this child, despite his difficulties with social interactions, has age appropriate social development. At the hearing, petitioner's attorney acknowledged that the child had been retained, i.e. had repeated a grade, twice. If the child had not been retained, he would have entered tenth grade in the 1991-92 school year. The child's level of social development is not comparable to that of the children in the recommended special class, nor to that of the eighth grade children in the mainstream special subjects. I find that the hearing officer correctly found that the child's social needs would not be met by the proposed placement (Matter of a Handicapped Child, 24 Ed. Dept. Rep 429).

Petitioner also asserts that the hearing officer erred in finding that the management needs of the children in the special class were not comparable to those of respondents' child. Petitioner relies upon the testimony of the speech/language therapist at the Dorner School for the proposition that the management needs of other children in the class at the Dorner School were "at least moderate." However, the testimony to which petitioner refers was about the severity of the communication disorders which the children had, not their management needs. This child's IEP provides that the child requires several behavioral management plans simultaneously. Although the speech/language therapist initially testified that one other child in the class had similar management needs, the therapist subsequently conceded that none of the IEPs for the children in the class called for behavioral management programs in the class because no child required the program. I concur with the hearing officer's finding that the child's management needs were not comparable to those of the other children in the class.

Petitioner also asserts that the hearing officer erred in finding that only one vocational program was available to children in the Dorner School. Petitioner relies upon the testimony of the speech/language therapist, who testified that children in the special class at the Dorner School are mainstreamed for special subjects, one of which is technology. State regulation requires that children must complete a course in technology (8 NYCRR 100.4 [b][2][v]). I note that the child's IEP for the 1989-90 school year provided that the child would take the technology course. I find that the hearing officer correctly determined that the only vocational program available at the Dorner School was the standard technology course which all children must complete by the eighth grade. I further find that petitioner has failed to demonstrate how the proposed placement would have met the child's vocational needs, particularly since he has apparently already taken the course. Because petitioner has performed only the most rudimentary of vocational assessments, it is still not possible to determine the nature and extent of the child's vocational abilities and needs. The CSE must perform a more extensive Level II vocational assessment, as is described in the State Education Department publication, The Vocational Assessment of Students with Handicapping Conditions. Upon the record before me, I find that the record supports the hearing officer's conclusion that petitioner failed to establish the appropriateness of a placement in a middle school setting for this child of average intellectual ability and average social and physical development.

The remaining issue is whether the hearing officer erred in directing that the child be placed at the Pathway School. In doing so, the hearing officer relied upon the testimony of the educational director of the Pathway School, who testified at the previous hearing, and an evaluation of the child's needs which was completed at the Pathway School in April, 1991. The evaluation describes the child's abilities and needs, and asserts that an appropriate class and a residential group were available for the child. The testimony of the school's education director supported the findings in the child's evaluation.

Petitioner asserts that placement at the Pathway School would not be appropriate because the child's private psychologist testified at the previous hearing that the child would need counseling in order to make the transition to a residential school, and that the child should be placed in a program with a milieu therapy approach, rather than a behavior modification approach. Although the psychologist testified that the child and his family might require preparation for the separation if he attended a residential school, he did not testify that a residential placement would be inappropriate. The psychologist's testimony with regard to milieu therapy and behavior modification made the distinction between positive and negative methods of altering the child's behavior, with the psychologist favoring the former. In any event, the program described by the Pathway School's educational director appears to be consistent with the recommendations which the psychologist made at the hearing. I have considered petitioner's other assertions with regard to the appropriateness of the Pathway School, and find them to be without merit.

In the decision in Appeal No. 91-24, I found that there was no evidence as to the availability of other, less restrictive placements for the child, and directed the CSE to explore alternative placements. The testimony of the CSE chairperson, the special education supervisor for the Putnam and Westchester BOCES and the speech/language therapist at the Dorner School established that they were unable to locate a day, high school level program with a language oriented curriculum disorder program available within a reasonable distance from the child's home. Accordingly, I now find that placement at the Pathway School would be consistent with the requirement of Federal and State regulation that each child be placed in the least restrictive environment (34 CFR 300.550[b]; 8 NYCRR 200.6[a][1]), and the New York State Education Law requirement that no child be placed in a residential school, unless there is no appropriate non-residential school available (Section 4402 [2][b][2]).

THE APPEAL IS DISMISSED.