92-014

Petitioner appeals from the decision of an impartial hearing officer which annulled the Board of Education's rejection of the recommendation of petitioner's committee on special education (CSE) that petitioner provide respondents' child with the services of a consultant teacher, classroom aide, a speech therapist and an occupational therapist at the site of a private school selected by respondents. The appeal must be sustained.

Respondents' ten year old child is classified as mentally retarded. The child's classification is not in dispute. In a May, 1991 psychological evaluation, the child achieved a verbal IQ score of 59, a performance IQ score of 45, and a full scale IQ score of 48. The school psychologist reported that the child had severe weaknesses in her vocabulary, attention span, visual organization and visual motor functioning. Academically, the child was described as reading at a beginning first grade level, and working on mathematics at the end of kindergarten level.

The child attended a special education pre-school program, prior to being enrolled in petitioner's schools in September, 1986. For the next two school years, the child was enrolled in a special education class of the Diagnostic Development Program of the Board of Cooperative Educational Services of Albany, Schoharie and Schenectady Counties (BOCES) in the Altamont Elementary School of the Guilderland Central School District. For the next three school years, the child was enrolled in a BOCES Fundamental Skills Instruction class in the Westmere Elementary School in the Guilderland Central School District. The latter class was described by the CSE chairperson at the hearing as a class of twelve children of similar academic achievement, taught by a special education teacher with the assistance of an aide. The child's mother testified that the child was mainstreamed only for physical education and lunch at the Westmere School.

The child's parents believed that the child would be more challenged in a regular education program, with supportive services. In April, 1991, respondents arranged for an independent educational evaluation of the child. In a report dated May 27, 1991, the independent evaluator found that the child generally scored at the pre-primary and first grade levels in academic areas. The evaluator reported that the child had a good sight vocabulary, but had difficulty reading for comprehension. The child's adaptive behavior was reported to be in the average range, when compared with peers with mild disabilities. The evaluator recommended that the child should be in a program which focused upon the development of abilities which would be of use to the child as an older student and as an adult, e.g. reading and writing simple messages and using coins to make change. The evaluator further recommended that the child's program be provided in the same setting in which her siblings and the children in her neighborhood receive instruction, and that the child be placed in a program with the same social demands as her peers, but with modified academic requirements.

On May 29, 1991, the CSE met with respondent to discuss the child's program and placement for the 1991-92 school year. Three members of the CSE voted to recommend that the child be placed in a regular education class in petitioner's elementary school, with the services of a part-time consultant teacher and a full-time aide and the related services of speech therapy and occupational therapy, and appropriate test modifications. Three members of the CSE, including the child's mother who was the parent member of the CSE present, voted to recommend that the child be provided with the same services at the St. Brigid's Regional School, a parochial school in Watervliet which respondents favored. On June 17, 1991, the CSE, by a vote of five to four, recommended that petitioner provide the services to the child at the St. Brigid's Regional School. The child's mother also voted at the June 17, 1991 CSE meeting, although another parent member of the CSE also voted at such meeting. On June 18, 1991, petitioner rejected the June 17 recommendation of the CSE.

Respondents requested that an impartial hearing be held to review the action of the Board of Education. Respondents informed petitioner that, in the interim, they would accept the child's placement in a regular education fourth grade class in petitioner's elementary school, where she has remained. A hearing was held on November 15 and 20, 1991. In a decision dated January 29, 1992, the hearing officer held that petitioner had the legal authority and obligation to provide the child with the services which had been recommended by the CSE at the site of the private school selected by respondents.

The parties agree that respondents do not seek, nor would they be eligible to receive, tuition for the child's attendance at St. Brigid's Regional School (34 CFR 300.403 [a]). They further agree that the child could not function in a regular education class, without the extensive efforts of a consultant teacher and an aide. The parties also agree that the child's individualized education program (IEP) which the CSE prepared is appropriate for the child. They disagree on the location of the services to be provided pursuant to the child's IEP, and whether each of the recommended services is a related service.

State regulation defines consultant teacher services as:

"Consultant teacher services means direct and/or indirect services, as defined in this subdivision, provided to a pupil with a handicapping condition who attends a regular education program on a full-time basis and/or to such pupil's regular education teachers.

(1) Direct consultant teacher services means specially designed individualized or group instruction provided by a certified special education teacher to a pupil with a handicapping condition to aid such pupil to benefit from the pupil's regular education program.

(2) Indirect consultant teacher services means consultation provided by a certified special education teacher to regular education teachers to assist them in adjusting the learning environment and/or modifying their instructional methods to meet the individual needs of a pupil with a handicapping condition who attends their classes". (8 NYCRR 200.1 [pp])

State statute defines a child with a handicapping condition, in part, as one who can receive appropriate educational opportunities from certain special services or programs (Section 4401 [1] of the Education Law). Special services and programs are defined to include a variety of instructional options, as well as related services which are supportive of the instruction program. The use of a consultant teacher is an instructional option (Section 4401 [2][a]). The statute does not specifically include the use of a classroom aide within the instructional options, or within the definition of related services (Section 4401 [2][k]). Neither does the State regulation which defines related services (8 NYCRR 200.1 [gg]). State regulation which defines the duties of supplementary school personnel provides that an aide may perform support teaching duties when such services are determined and supervised by teachers (8 NYCRR 80.33 [a][iii]). The record in this appeal demonstrates that the aide would be expected to provide support teaching duties. In any event, the distinction between special education and related services may be of less significance than the parties appear to believe.

Federal and State law require that boards of education make special education and related services available to children who are placed by their parents in private schools (20 USC 1413 [a][4][A]; Section 3602-c of the Education Law). To satisfy its obligation to these children, boards of education must not only offer to provide appropriate public placements for the children, but must also offer them appropriate special education and related services in the event their parents choose to continue their enrollment in private schools (34 CFR 300.452). Boards of education may provide appropriate special education and related services to children unilaterally enrolled by their parents in private schools, either in the public schools, in private schools or at neutral sites (Bd. of Ed. Monroe-Woodbury Central School District v. Weider et. al., 72 NY 2d 174. In the Weider decision, the Court of Appeals stated that, under State law, school officials may fashion an appropriate program for each child within statutory guidelines and constitutional constraints. The Court of Appeals did not attempt to determine where any specific service could be provided in accordance with constitutional principles, because the nature of specific services to be provided had not been addressed in that litigation.

On one other occasion, I was asked to address the issue of the constitutionality of providing the services of a consultant teacher and an aide in a sectarian school. However, that issue was not reached, because some of the educational goals of a child were not appropriate for a regular education class in which the services of such teacher and aide were sought (Application of a Child with a Handicapping Condition, Appeal No. 91-13).

Petitioner asserts that the services of a consultant teacher for one-half hour per day for four days and an additional one-half day per week and the full-time services of an aide are direct instructional services, and that it cannot be compelled to provide such services at the site of a parochial school. The Board of Education further asserts that it may not be required to provide the related services of speech therapy and occupational therapy at the site of a parochial school, if such services can be provided in a public school or at a neutral site.

Respondents assert that the term "direct instructional service" is not defined in statute or regulation. They further assert that petitioner has the obligation to provide appropriate special education and related services to a child enrolled in a private school, pursuant to the provisions of Federal and State law, and that the recommended services are appropriate for this child. Respondents contend that the recommended services are related services, because they are necessary to enable the child to benefit from her regular education program. They wish to have the child attend the St. Brigid's Regional School because the child's two siblings attend that school.

Although the parties in the present appeal urge that I find a constitutional basis for their respective positions regarding the provision of the recommended services in a sectarian school, I do not reach that issue. There are substantial procedural irregularities in the way in which the child's IEP was developed, and the record reveals that there is no clear consensus on the respective tasks of the consultant teacher and the aide.

Section 4402 (1)(b)(1) of the Education Law requires that each CSE include the parent of a child with a handicapping condition. Federal and State regulations accord parents the right to attend and participate in a CSE meeting at which their children's IEPs are prepared (34 CFR 300.345; 8 NYCRR 200.4 [c][3]). However, it is an inherent conflict of interest for a child's parent to serve as the parent member of the CSE when the child's IEP is prepared. Although another parent voted at the June 17, 1991 CSE meeting, the child's mother voted as a CSE member upon the recommendation to provide the services which she and her husband had requested for the child. I find that it is improper for a parent to serve as the parent member of a CSE when the CSE is making a recommendation involving the child of such parent. However, in this case it would appear to be inequitable to rely upon petitioner's own failure to ensure that its CSE was properly constituted as a basis for sustaining petitioner's appeal. Petitioner must ensure that its parent members of the CSE do not function as the parent member of the CSE when the CSE makes recommendations involving their children.

The CSE must reconsider the proposed IEP. State regulation provides that each child requiring consultant teacher services shall receive direct and/or indirect services consistent with the child's IEP, for a minimum of two hours (8 NYCRR 200.6 [k][2]). This child's IEP provides that the child is to receive consultant teacher services for one class period per day four days each week, and an additional one-half day of such services. It does not specify whether such services are to be direct or indirect. This omission is particularly significant in view of the testimony by the CSE chairperson at the hearing that he did not know how the consultant teacher would function if the program were implemented at the private school. The consultant teacher in the child's interim placement at the Watervliet Elementary School and her regular education teacher testified that there was little formal consultation between them about the child's academic program, i.e. indirect consultant teacher service. Notwithstanding the amount of consultant teacher services specified in the child's IEP, the consultant teacher testified that she spent the first teaching period of the day advising the child's aide what work the child was to do during the day, and the second period providing direct instruction to the child either in mathematics or reading. The consultant teacher further testified that she devoted additional time to the child, during the teacher's preparation and lunch periods, and that more indirect consultant teacher services would be needed if the child enrolled in the private school.

The IEP does not clearly reveal the subjects in which the child is to receive primary instruction from a special education teacher. An IEP, if appropriate, shall indicate the areas of the regular education program, in which the child will receive consultant teaching services 8 NYCRR 200.4 (c)(2)(iv). The child's consultant teacher testified that she provided direct instruction for approximately one period per day in mathematics or reading. I conclude from the teacher's testimony that instruction was also given by the child's aide in these and other subjects. With the exception of science in which the child participates with the rest of her fourth grade class, all of her subjects appear to be taught by the special education teacher or the aide. The child's fourth grade teacher testified that she was primarily responsible for the socialization of the child, and that the consultant teacher was responsible for grading the child's work and preparing the child's report card. In this case the IEP must be specific in delineating the responsibilities of the child's regular education and consultant teachers. Further guidance is provided by the contemporaneous amendment of the Regulations of the Commissioner of Education which provide that when consultant teacher services are specified in a child's IEP, the regular education teachers for whom such services are planned must be given the opportunity to participate in the instructional planning process with the consultant teacher to discuss the objectives and to determine the methods and schedules for those services (8 NYCRR 200.4 [d][2]). In view of the obvious need for coordination and cooperation between the child's regular education and consultant teachers, it is essential that the CSE invite representatives of the private school to discuss the feasibility and implementation of the proposed program with the CSE, before the CSE recommends such a program.

The role of the child's aide must also be clarified by the CSE with regard to the nature of her duties, consistent with the provisions of 8 NYCRR 80.33, and the supervision of the aide. Both the consultant teacher and the child's regular education teacher testified that they each supervised the aide. The supervision of the aide by a regular education teacher in a sectarian school would appear to be a significant issue that would be addressed in determining the constitutionality of the proposed program (Aguilar et al. v. Felton et al., 473 U.S. 402).

For all of the foregoing reasons, the matter must be remanded to the CSE.

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that within 30 calendar days after the date of this decision, petitioner's CSE shall reconsider its recommendation and make a recommendation concerning the appropriate special education and related services to be provided to the child in the event that respondents wish to have the child enrolled in a private school.