92-027

Petitioner appeals from the decision of an impartial hearing officer finding that petitioner's child was appropriately placed for the 1991-92 school year in a special education class of the Board of Cooperative Educational Services of the Second Supervisory District of Suffolk County (BOCES), and denying petitioner's request for an order that the child be placed in a residential school. The appeal must be dismissed.

In 1986, when the petitioner's child was two and one-half years old, he was diagnosed as having autism by the Schneider Children's Hospital on Long Island. In January and February, 1990, when the child was six years old, he was extensively evaluated at the Developmental Evaluation Clinic of the Children's Hospital of Boston (DEC) because the child's parents wanted confirmation of the initial diagnosis of autism. A DEC psychologist assessed the child's mental age to be equivalent to that of a ten month old child and his adaptive behavior was assessed to be equivalent to that of a one year old child. In view of the child's significantly impaired reciprocal social interaction, impaired verbal and nonverbal communication, and stereotypical behavior, the psychologist opined that the child's behavior was consistent with autism, noted that the child's parents appeared to have minimal expectations for the child, and opined that the child had the capacity to improve his adaptive functioning in social and self-care skills, with appropriate training and increased parental expectations about his performance. A DEC psychiatrist confirmed the diagnosis of autism, and opined that the child appeared to have the capability to improve his communication. A BOCES psychological evaluation of the child in June, 1991 reported that child responded to simple commands, but did not interact with his peers. The child's cognitive functioning was reported to be that of a two year and one month old child, which corresponded to an IQ of 31. There is no dispute about the child's classification as autistic.

The child, who is now eight years old, entered public school in New York City, where he was in a specialized instructional environment-VIII (SIE-VIII) program on a twelve-month basis. On January 2, 1991, the child was referred to respondent's committee on special education (CSE), after the child and his parents became residents of respondent's district. On January 9, 1991, the CSE recommended that the child be classified as autistic, and that he be placed in a special education class of not more than six children with a teacher and an aide at the BOCES Forest Brook Learning Center. The CSE's recommendation specified that the BOCES class would use the total communication method of instruction. The CSE further recommended that the child receive individual speech therapy on a daily basis and be evaluated by staff of the BOCES program to determine his need for physical therapy and occupational therapy.

Petitioner consented to the CSE's recommendation, and the child entered the BOCES program in mid-January, 1991. On February 14, 1991, respondent approved the CSE's recommendation. In the same month, a BOCES speech assessment of the child revealed that the child's receptive language skills were equivalent to those of a five to six month old child, and his expressive language skills were found to be equivalent to those of a four to five month old child. The BOCES evaluator recommended that the child's speech/language goals focus upon improving his attending and listening skills, developing his social-awareness and developing his receptive and expressive language through representational and imitative play.

On March 7, 1991, the CSE conducted an annual review of the child. For the 1991-92 school year, the CSE recommended that the child continue in the BOCES Forest Brook program, in which the total communication approach would be used, on a twelve month basis. The CSE recommended that the child continue to receive individual speech therapy on a daily basis, and that the BOCES complete its evaluations of the child's need for physical therapy and occupational therapy. An occupational therapy evaluation, which was completed on March 4, 1991, reported that the child had some tactile defensiveness, but did not require any therapeutic intervention by an occupational therapist. The record reveals that a physical therapy evaluation was performed in February, 1991, but the results of such evaluation are not in the record.

On October 9, 1991, the CSE reviewed the child's program and placement, at petitioner's request. The CSE recommended that the child remain in the BOCES program, and continue to receive individual speech therapy on a daily basis. The CSE further recommended that respondent transport the child to a daily respite child care program provided at the Developmental Disabilities Institute, under the auspices of the New York State Office of Mental Retardation and Developmental Disabilities. At the hearing, petitioner testified that the child attended the respite program every school day from 3:00 p.m. to 7:15 p.m.

On October 10, 1991, the child was evaluated, at the request of his parents, by a psychiatrist at the State University of New York at Stony Brook. The psychiatrist reviewed the reports of others who had evaluated the child, briefly observed the child, and opined, that the child should be in a residential treatment center. The psychiatrist premised her opinion upon the report of the child's father that the child was unmanageable at home, despite concluding that the father was not a good informer about the child.

Petitioner did not attend the October 9, 1991 CSE meeting because she was hospitalized. The record reveals that she expressed her disagreement with the CSE's recommendation, and was advised by respondent's staff to request an impartial hearing. By letter dated December 13, 1991, petitioner requested that a hearing be held. In a letter dated December 20, 1991, petitioner reiterated her request for hearing.

A hearing was held on March 6, 1992. In an undated decision which petitioner alleges that her attorney received on May 18, 1992, the hearing officer held that the child should remain in the BOCES day program because the child was receiving appropriate education and training in the areas of his identified needs.

Before reaching the issue of the appropriateness of the BOCES day program, I note that respondent has annexed to an affidavit in opposition to the petition a copy of a classroom observation report, dated March 13, 1992, by respondent's school psychologist. The report was not prepared until after the hearing had been held. Evidence which was not in the record before the hearing officer will generally 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; Application of Child with a Handicapping Condition, Appeal No. 92-23). Respondent has not offered any explanation of why such observation was not conducted before the hearing was held, and, in any event, the report is merely cumulative with the testimony of the child's teacher and the child's principal. I will not consider the document. The record is complete without the document.

There is one other preliminary issue. Respondent asserts that it was inappropriate for petitioner's attorney to testify as a witness during the hearing. The record reveals that respondent rested its case after presenting the testimony of the child's BOCES teacher and principal. When the hearing officer asked petitioner's attorney to present any witnesses to testify on behalf of petitioner, the attorney stated that she wished to testify and to have her co-counsel question her. Over the objection of respondent's representative, the hearing officer permitted the attorney to testify concerning the attorney's February 26, 1992 observation of the child in his BOCES class. The attorney then testified about what she had observed in the classroom, as well as about her conversation with the child's teacher.

With certain exceptions not relevant here, an attorney may not accept employment by a client when the attorney knows he or she will, or it is obvious that the attorney ought to, be called as a witness in a matter involving the client (Disciplinary Rule 5-101 [B], Appendix to the Judiciary Law). After accepting employment, an attorney must withdraw as an advocate when the attorney learns or it is obvious that the attorney ought to be called as a witness on behalf of the client (Disciplinary Rule 5-102 [A], Appendix to the Judiciary Law). The rules are intended to avoid blurring the line between argument and evidence (U.S. v. Arrington, 867 F. 2d 122 [2d Cir. 1989]), and to avoid the "... unseemly and ineffective position of [an attorney] arguing his own credibility." (Ethical Consideration 5-9 of the American Bar Association). The professed purpose of the attorney's testimony at the hearing was to demonstrate alleged contradictions between the teacher's testimony and that of the attorney, in order to impeach the teacher's credibility (Transcript pp. 114-115). I find that the petitioner's attorney should not have continued to represent petitioner, after testifying on petitioner's behalf. Nevertheless, the error is not dispositive of this appeal, and I now turn to the substantive issues of the appeal.

Petitioner asserts that the child's individualized education program (IEP) for the 1991-92 school year did not address all of the child's needs. Petitioner further asserts that the hearing officer erred in premising his conclusion that the child's BOCES placement was appropriate upon a finding that the child's behavior had not deteriorated while at the BOCES. Petitioner asserts that the BOCES placement was inappropriate because the child was not meeting his IEP annual goals and had not made progress in developing communications and self-help skills. She requests that I find that a day placement is inappropriate, and direct respondent to obtain a residential placement for the child.

Respondent asserts that the child's learning has progressed at a rate commensurate with his level of functioning, and that the BOCES day placement is the least restrictive environment.

It is well established that a board of education bears the burden of establishing the appropriateness of a child's program or placement (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, Appeal No. 91-24). An appropriate program or placement begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's needs, and establishes annual goals which are related to the child's educational deficits (Application of a Child with a Handicapping Condition, Appeal No. 92-21; Application of a Child with a Handicapping Condition, Appeal. No. 92-1).

In support of her assertion that the child's 1991-92 IEP did not address the child's needs, petitioner refers to a document which is identified in the record as School District Exhibit 6. However, that document is a proposed IEP prepared by BOCES. There is no proof in the record that such document was approved by the CSE. A document identified as School District Exhibit 4 is the child's IEP for the 1991-92 school year, as considered by the CSE at its October 9, 1991 meeting. The record reveals that the CSE and the BOCES prepared separate IEPs for the child, and that the CSE was not aware of the IEPs prepared by the BOCES. Indeed, respondent's representative at the hearing unsuccessfully attempted to exclude the child's BOCES IEPs from admission into evidence, upon the ground that such documents had not been disclosed to respondent at least five days in advance of the hearing (8 NYCRR 200.5 [c][8]). Although a CSE should seek information about the child from a BOCES which provides services to the child, the CSE remains responsible for preparing the child's IEP (8 NYCRR 200.4 [d] [3]). In the future, the CSE must work more closely with the BOCES, as the CSE develops the child's IEP.

As identified by the DEC evaluation, the child's needs include improvement of his ability to communicate and to relate to others, development of his self-care skills (eating, dressing, toileting), increasing his attention span, and decreasing his tactile defensiveness. The child's IEP for the 1991-92 school year addresses each of those needs, with the exception of the child's tactile defensiveness. However, a March 4, 1991 BOCES occupational therapy evaluation of the child reported that the child's tactile defensiveness had improved. State regulation requires that the child's IEP identify the child's needs and level of performance in the areas of educational achievement and learning characteristics, social development and physical development (8 NYCRR 200.4 [c] [2] [i]). While this child's IEP generally addresses his major needs, the child's needs should be described more precisely and the IEP should present a clear description of the child's level of performance. In part, this may be the result of using what appears to be a standardized IEP form, some of the portions of which are not applicable to this child and his disability. The child's IEP goals do relate to reducing the problems resulting from the child's disability which interfere with his educational performance (34 CFR 300, Appendix C, Question 40), but the goals should be more precisely drawn to provide for reasonably specific outcomes.

The deficiencies found in the child's IEP do not require a finding that the child's day placement at the BOCES is inappropriate. A board of education may meet its burden of establishing the appropriateness of a placement by showing that the placement is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176). The central point of disagreement between the parties is the degree of progress which the child has made at the BOCES. Petitioner asserts that the child has not made any progress at BOCES, by comparing the child's skills and behavior as described in the DEC evaluations and as described by the child's teacher and his principal at BOCES in their testimony at the hearing. However, I find that the record does not support petitioner's assertion that the child has not progressed since he was evaluated by the DEC in 1990. The child's performance at the BOCES has varied, but the record demonstrates that he has made progress which is reasonably consistent with that expected of a child functioning in the severely retarded range.

The child's teacher testified that the child's ability to be part of a group had improved. The teacher further testified that the child's ability to interact with others in other settings, such as in art and music classes, had improved. The teacher also testified that his attention span and ability to attend to tasks had improved. The child was able to sit at a computer and watch the monitor for as long as 15 minutes, and to produce a sound or picture by depressing the space bar on the keyboard. The teacher testified that the child responded to the use of total communications by looking at the teacher and following what the teacher was doing, for varying periods of time. While the DEC had recommended that the child receive occupational therapy to decrease his tactile sensitivity during the teaching of self-care skills, the child's teacher testified that the child could now, with help, tolerate the use of a toothbrush and toothpaste. The teacher testified that the child was unable to dress and undress himself completely, but that she was working with him on those tasks. The BOCES principal testified that the child could set a table, with help, and was learning to sort objects by size, shape and color. Indeed, petitioner's attorney testified that she observed the child briefly sorting objects by color. The attorney observed the child having a tantrum, which the DEC evaluators had reported that the child used to express his anger. However, the child's teacher testified that the children in her class occasionally display inappropriate behaviors. There is nothing in the record which suggests that the behavior of petitioner's child is atypical. Upon the record before me, I find that the day program which respondent has provided was appropriate.

Under Federal and State law, a residential placement is appropriate only if such placement is required in order for the child to benefit from the child's educational program, i.e. to make educational progress (Abrahamson v. Hershman, 701 F. 2d 223 [1st Cir., 1983]; Burke County Bd. of Ed. v. Denton, 895 F. 2d 973 [4th Cir., 1990]; Kerkam v. Superintendent, D. C. Public Schools, 931 F. 2d 84 [D. C. Cir., 1991], Applications of Bd. of Ed. Hoosic Valley CSD and a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 129). There is no basis in the record upon which I could conclude that this child cannot benefit from instruction in a day program. Indeed, the record demonstrates that he has benefitted from such instruction. Although petitioner testified that the child was becoming increasingly difficult to manage at home, there is no evidence in the record that the child's behavior at home impacts upon his ability to benefit from his educational program. In any event, the child's behavior at home does not, per se, afford a basis for concluding that the child requires a residential program (Application of a Child with a Handicapping Condition, Appeal No. 91-28; Matter of a Handicapped Child, 21 Ed. Dept. Rep. 293). State regulation requires boards of education to provide for parent counseling and education for the purpose of enabling the parents of autistic children to perform appropriate follow-up activities at home (8 NYCRR 200.13 [d]). The DEC evaluators noted the need for such services, in order for this child's parents to be able to provide the necessary structure at home to permit the child to function more adaptively. The BOCES principal testified at the hearing that the BOCES does provide parent training to assist parents in helping their children with behavior, speech and toileting and that such assistance is provided at the convenience of the parents. The principal testified that the parents of children entering the BOCES program are advised of the availability of such training. If she has not done so, petitioner should take advantage of such training.

In view of my finding that the BOCES program is appropriate, and the absence of evidence that the child requires a residential placement in order to benefit from instruction, a residential placement would not be the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]).

THE APPEAL IS DISMISSED.