92-015

Petitioners appeal from the decision of an impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) that the 1991-92 school year educational program for petitioners' child consist of primary instruction in academic subjects in a special education class, and of mainstreamed instruction in all other subjects. The appeal must be sustained.

Petitioners' child, who is fourteen years old, has Down Syndrome. While attending a preschool in the 1981-82 school year, the child received speech therapy. Upon entry into respondent's schools in the 1982-83 school year, the child was classified as speech impaired. A psychologist, who evaluated the child at the age of six, testified at the hearing that the child had age appropriate adaptive behavior which precluded his classification as mentally retarded. In March, 1990, the child was re-evaluated by the psychologist, who reported that the child's cognitive abilities and adaptive skills were within the mildly retarded range. The psychologist further reported that the child has a verbal IQ of 50, a performance IQ of 61 and a full scale IQ of 57, and had achieved grade equivalents of 2.5 in mathematics, 3.3 in reading and 2.0 in spelling. The psychologist found that the child displayed relative strength in social skills and relative weakness in verbal reasoning and expression. In May, 1990, the CSE recommended that the child's classification be changed to mentally retarded. Petitioners assert that the classification of mentally retarded may not fully address all of the child's needs, but they do not challenge the appropriateness of that classification in this appeal.

For three years, during the 1982-83, 1983-84, and 1984-85 school years, the child remained enrolled in a special education kindergarten class, with partial mainstreaming in a prekindergarten class, and the related service of speech therapy. The child also received occupational therapy during the 1984-85 school year. He continued to receive both speech therapy and occupational therapy, through the 1989-90 school year. The child was enrolled in regular education classes from the first through the fifth grade. During first grade, the child received supplementary instruction for mathematics in a resource room. In second grade, he received resource room instruction for mathematics and reading. While in the third grade during the 1987-88 school year, the child received primary instruction in mathematics in a special education class, with supplementary instruction for reading and language arts in a resource room. An aide was assigned to assist the child in the regular education portion of his program. The child received the same group of services while in fourth grade during the 1988-89 school year. For fifth grade, during the 1989-90 school year, the child received instruction in reading and mathematics in a special education class. The child also received supplementary instruction for spelling and language arts from his special education teacher in a resource room, in addition to instruction in those subjects from his regular education teacher.

For the 1990-91 school year, when the child moved from elementary school to middle school, a subcommittee of the CSE recommended that the child's classification be changed to mentally retarded, and that the child receive primary instruction for all academic subjects in a special education class located at respondent's DeWitt Middle School. Petitioners disagreed with the recommendation of the subcommittee, which was referred to the CSE. Petitioners asked the CSE to recommend that the child continue to receive in the middle school a program similar to his fifth grade program. On May 22, 1990 the CSE modified the subcommittee's recommendation to provide that the child attend the Boynton Middle School, which he would have attended if he did not have a handicapping condition. However, the CSE accepted the subcommittee's recommendation that the child receive primary instruction for all academic subjects in a special education class of not more than 12 children with a teacher and an aide.

Petitioners did not accept the CSE's recommendation. They met twice with respondent's staff in August, 1990, but were unable to reach agreement concerning their child's sixth grade educational program. On September 4, 1990, petitioners and their then attorney met with respondent's superintendent of schools, who agreed to place the child with an aide in regular education classes, on a trial basis for a thirty day period, with one period per day of resource room services, and speech and occupational therapies. While the child would have the assistance of a special education teacher in the resource room and an aide in the regular classrooms, the child was expected to meet the requirements of the regular sixth grade curriculum.

On October 9, 1990, the CSE reviewed the child's performance in sixth grade. The CSE recommended that the child receive primary instruction in mathematics, science, social studies, English and reading in a special education class at the DeWitt Middle School, and that the child be mainstreamed for other subjects. Petitioners requested that an impartial hearing be held to review the CSE's recommendation. However, a disagreement arose between the parties concerning the child's placement during the pendency of the hearing. Petitioners commenced an action in the U.S. District Court for the Northern District of New York, to compel respondent to maintain the child's placement in the regular education sixth grade classes. On November 29, 1990, the District Court denied petitioners' request for a temporary restraining order. On December 4, 1990, petitioners advised respondent that they would send the child to school for instruction in all subjects, except reading, language arts and mathematics, which they would teach the child at home. Respondent rejected petitioners' proposal, and petitioners then asked the hearing officer to issue an interim order establishing the child's pendency placement. The hearing officer declined to issue an order, because the same issue was pending before the District Court.

In late December, 1990, petitioners discontinued their Federal court action. On December 31, 1990, the hearing officer ruled that the child's pendency placement was the program in effect when the hearing was requested, i.e. the trial program which the superintendent of schools had agreed to on September 4, 1990. On February 7, 1991, the parties entered into a stipulation that for the remainder of the 1990-91 school year the child would receive a regular sixth grade educational program, supplemented by one period per day of resource room services and one period per day of speech therapy. The parties further agreed that the child would receive blended services. The term blended services was defined in the parties' stipulation as a planning process to provide for the review of a child's course content and needs by the child's teachers, in order to ascertain how special education and related service would support the child in a regular education program. The parties further agreed that respondent would assist its teachers with staff development, and that a member of the child's instructional team would review proposed instructional units for the child with petitioners. Although a Phase I individualized education program (IEP) was annexed to the stipulation signed by the parties, the CSE chairperson testified at the hearing that the IEP was not adopted by the CSE to implement the agreement reached by the parties. The chairperson further testified that a Phase II IEP was subsequently prepared.

By letter dated March 27, 1991, petitioners requested an impartial hearing. Following a subsequent meeting with petitioners and their then attorney, the CSE met on May 28, 1991, to prepare the child's IEP for the 1991-92 school year. The CSE recommended that the child be enrolled in a special education class at the DeWitt Middle School for the subjects of mathematics, science, social studies, English/language arts and reading, and that the child be mainstreamed for all other subjects with the assistance of an aide. The CSE further recommended that the child receive daily speech/language therapy, and that the child be allowed to use alternative test techniques.

The hearing commenced on August 12, 1991, and concluded on September 13, 1991. During the hearing, the parties agreed that the child's pendency placement would be a continuation of the program described in their February 7, 1991 stipulation. By decision dated January 16, 1992, the hearing officer found that the child's IEP accurately reflected the results of the child's evaluations and set forth specific goals which addressed the child's handicapping condition. The hearing officer also found that the program recommended by the CSE was appropriate for the child and was the least restrictive placement.

Petitioners object to respondent's submission of documents in this appeal which were not part of the record before the hearing officer. The documents, which are annexed to respondent's memorandum of law include an affidavit by respondent's director of pupil personnel services which purportedly addresses new issues raised by petitioners concerning the child's performance in school for the 1991-92 school year. Other documents annexed to respondent's memorandum of law relate to the child's school work in the 1990-91 school year and the efforts of respondent's staff to observe programs in other school districts. In response, petitioners have submitted additional documents, including affidavits by each of the petitioners and by an administrator of one of the school districts visited by respondent's staff to observe its special education program, as well as samples of the child's school work during the 1991-92 school year.

As a general rule, evidence which was not in the record before the hearing officer will not be considered in a review of the hearing officer's decision, unless such evidence was not available at the time of the hearing or unless the record is incomplete (Application of a Child with a Handicapping Condition, Appeal No. 91-34). The issue of respondent's staff observation of other school district programs was raised at the hearing. In the absence of any explanation why such evidence was not introduced at the hearing, I find that the documents relating to such observations should not be accepted in this appeal. The evidence submitted by both parties concerning the child's academic performance in the 1991-92 school year could not have been submitted to the hearing officer, because it was not available at the time of the hearing. However, those documents are not necessary to reach a decision in this appeal. Nor would it be prudent to consider them because the accuracy and significance of the documents have not been established at a hearing.

Petitioners challenge the appropriateness of the CSE's recommendation of May 22, 1990, for the 1990-91 school year, and each subsequent recommendation by the CSE. They assert that respondent has systematically refused to provide special education services, including the use of a modified curriculum, a consultant teacher, a plan to facilitate peer support and a behavior management plan, within its regular education classes. They assert that the child has been deprived of an appropriate program, and that the child's right to receive an appropriate education in the least restrictive environment as required by Federal and State regulation has been violated. Petitioners also challenge respondent's failure to provide the child with an IEP during the 1990-91 school year, and respondent's unilateral decision to replace the child's mainstreamed instruction for academic subjects with special education in November, 1990.

Respondent asserts that petitioners should be estopped from challenging the appropriateness of the child's 1990-91 educational program, because the program which was ultimately implemented resulted from the February, 1991 stipulation, to which petitioners agreed. Respondent further asserts that the CSE prepared an IEP for the 1990-91 school year, at its May 22, 1990 meeting, but petitioners challenged such IEP, and that petitioners ultimately accepted an IEP incorporated by reference into the February, 1991 stipulation. Respondent asserts that it offered to provide an appropriate program for the 1990-91 and 1991-92 school years, and that it is not obligated to provide the parallel program of special education within regular education classes which petitioners seek.

With regard to the child's IEP for the 1990-91 school year, the record reveals that petitioners challenged the IEP which the CSE had prepared at its May 22, 1990 meeting, by requesting an impartial hearing to review the CSE's recommendation. In accordance with the pendency provisions of Federal and State Law (20 USC 1415 [e] [3]; New York Education Law Section 4404[4]), the child would remain in his then current educational placement, unless the parents and the board of education agreed to an alternative. In this instance, the parties agreed that the child would enter sixth grade at the Boynton Middle School, and agreed to the program described by respondent's superintendent in a letter summarizing his meeting with petitioners held on September 4, 1990. The parties disagree on whether such program was intended to be temporary as stated by the superintendent, or permanent, as the child's father testified at the hearing. Even if the agreed upon program was temporary, I find that an IEP should have been prepared for the child, to guide the delivery of resource room and related services (34 CFR 300.342 [b][1]). In any event, a new IEP was prepared at the October 9, 1990 CSE meeting, which was also challenged by petitioners. Thereafter, the parties were engaged in a dispute about the child's pendency placement, which was not resolved until the hearing officer ruled, on December 31, 1990, that the program outlined in the superintendent's letter was the child's pendency placement. A new IEP was prepared and incorporated into the February, 1991 stipulation between the parties. However, the CSE neither developed nor approved the IEP, nor did respondent approve the IEP (cf. 34 CFR 300.344; 8 NYCRR 200.4[c] and [d]). I find that the purported IEP was not validly created, and could not afford a basis for developing instructional objectives.

With regard to the change in child's placement in November, 1990, I find that the matter of the pendency placement was resolved by the hearing officer's December 31, 1990 decision. That decision was not appealed and the hearing in which it was rendered was canceled after the parties entered into their February, 1991 stipulation. There is no basis for me to reopen that matter to address the issue of the change of placement.

The central issue in this appeal is the appropriateness of the CSE's recommendation for the 1991-92 school year. An appropriate program begins with an IEP which adequately reflects the results of a child's evaluation and describes the relevant needs of the child to be addressed by the proposed program. I find that the IEP prepared by the CSE at its May 28, 1991 meeting is inadequate. State regulation requires that an IEP set forth the child's level of performance and individual needs in the areas of educational achievement and learning characteristics, social development, physical development and management needs (8 NYCRR 200.4 [c] [2] [i]). The child's IEP reports his educational achievement in terms of annual results on tests which did not measure the areas of the child's academic needs. The record reveals that the child has difficulty following oral directions, and learns best when oral instruction is supplemented with visual and/or manipulative materials. The child also requires repetition in instruction. The child's IEP does not address the child's learning style. The IEP's description of the child's social development does not include any discussion of his activities for daily living skills and adaptive behavior. Although the record reveals that the child has deficits in fine motor skills, the child's IEP provides no information about such deficits, which would afford a basis for determining the child's need, if any, for adaptive equipment such as a word processor for written expression. With regard to the child's management needs, the IEP merely reports that the child's behavior does not seriously interfere with instruction. However, the IEP supports the placement of the child for a portion of the day in a special education class which includes a teacher and an aide, and which by State regulation is intended for children whose management needs interfere with the instructional process (8 NYCRR 200.4 [f] [4] [i]). The child's IEP also provides that the child should have an aide for instruction in the practical arts, without revealing a basis for having an aide involved in such instruction.

The child's IEP does not adequately describe the child's needs in each of the four areas required by the regulation. There is no description of any of the child's functional academic needs. The IEP suggests that the child's self-concept needs improvement, but does not identify the child's need for assistance in developing appropriate skills for initiating and maintaining interaction with peers and adults. The IEP does not describe the child's vocational needs, nor does the record reveal whether the child has received a vocational assessment, as required by 8 NYCRR 200.4 (b) (4) (vi). Although the IEP provides for daily speech therapy for the child, it does not describe the child's speech and language needs.

A child's IEP should include annual goals which are consistent with the child's needs and abilities, in all of the areas or subjects in which the child receives special education and related services. Annual goals must be sufficiently specific to provide direction to the child's teachers concerning the expectation of the CSE, and must address the individual needs of the child (Application of a Child with a Handicapping Condition, Appeal No. 91-25). This child's IEP reports his annual goals in a format which provides that his performance in reading and mathematics will increase from his present grade level equivalents to certain grade level equivalents, using individualized instruction. These goals do not address the nature of his disability, or of his skill deficits. IEP goals and objectives should focus on offsetting or reducing the problems resulting from the child's disability which interfere with the child's educational performance (34 CFR 300, Appendix C, Question 40), rather than purporting to predict the child's performance on specific tests. The CSE has confused the requirement for appropriate objective criteria and evaluation procedures for determining the achievement of short term instructional objectives (34 CFR 300.346 [e]) with annual goals.

In essence, the parties dispute the child's need for primary instruction by a special education teacher in one or more academic subjects and the location in which such instruction is provided. I do not reach those issues, because of the substantial defects in the child's IEP. The CSE must first prepare an IEP which identifies the child's special education needs, and then identifies his annual goals. The CSE must then select a program in which the child can be reasonably expected to achieve his annual goals. Federal and State regulations require that, to the maximum extent appropriate, each disabled child must be educated in the least restrictive environment (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a] [1]). A child may be removed from the regular educational environment, only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be satisfactorily achieved (34 CFR 300.550 [b] [2]). It is not necessary to establish that the child will learn at the same rate, or master as much of the regular education curriculum as his non-disabled peers, in order to place the child in a regular education class (Daniel R.R. v State Board of Education, 874 F. 2d 1036 [5th Cir., 198]9). The relevant inquiry is whether the child can achieve the goals of his IEP within a regular education program, with supplementary aids and services (Application of the Board of Education of the Schalmont Central School District, Appeal No. 90-19). Despite the extensive record in this appeal which established that the child was not able to achieve the purported IEP goals for the 1990-91 school year, there is no basis in the record for me to conclude that the child could, or could not, achieve appropriate annual IEP goals, with supplementary aids and services in a regular education class. Therefore, I must find that respondent has not met its burden of proof in establishing the appropriateness of the CSE's recommendation for the 1991-92 school year. Given the lateness in the school year which will only make it an unnecessarily burdensome academic exercise, I will not direct the CSE to prepare a new IEP for the 1991-92 school year. However, I shall direct the CSE to prepare an IEP for the 1992-93 school year which is consistent with the finding in this decision that the 1991-92 IEP is deficient, and will require the CSE to insure that the deficiencies identified are not repeated.

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, respondent's CSE shall recommend an appropriate program for the child for the 1992-93 school year, in accordance with the tenor of this decision.