92-028

Petitioners appeal from the determination of an impartial hearing officer upholding the December 5, 1990 recommendation of respondent's committee on special education (CSE) that the educational program of petitioners' child be changed from a regular education class with related services to a special education class with related services, and directing the CSE to re-evaluate the child in the event that the child re-enrolls in respondent's schools. The appeal must be dismissed.

Petitioners' child, who is now eleven years old, has been classified by the CSE as learning disabled. The child's classification is not disputed in this appeal. The child's parents had the child initially evaluated at the age of two, because he did not speak. The evaluator attributed the child's speech delay to the audiological condition of otitis, for which the child was treated surgically. The child received speech/language therapy and occupational therapy, while enrolled in a Board of Cooperative Educational Services preschool program. The child received medication for his hyperactivity.

The child entered kindergarten in respondent's schools in September, 1986. The child reportedly had behavior tantrums in kindergarten. Petitioners obtained counseling for the child by a psychologist affiliated with the State University of New York at Binghamton. Respondent provided staff development services to the child's kindergarten teacher to assist her in dealing with the child's needs, and the teacher was assisted by an aide.

For the 1987-88 school year, the child was enrolled in a pre-first grade class. In June, 1988, the child was referred by his teacher to respondent's committee on special education (CSE). A school psychologist who evaluated the child reported that the child was functioning at the low end of the average range of ability, with a divergent pattern of strengths and weaknesses. Weaknesses were noted in the child's fund of general information, mental computation skill and short-term auditory memory. The child's receptive language skills were approximately two years below expectancy, and deficits were noted in the child's visual motor skills, spatial reasoning, whole/part organization and fine motor skills.

In August, 1988, the CSE recommended that the child be classified as learning disabled, and that he be placed in a regular education first grade class for the 1988-89 school year. The CSE also recommended that the child receive resource room services one period per day and speech/language therapy twice per week. The child had difficulties in first grade. Respondent's school psychologist testified at the hearing that during the 1988-89 school year she worked with a representative of the child's private psychologist to implement a behavior modification plan which the private psychologist had designed. In June, 1989, a subcommittee of the CSE considered the possibility of changing the child's classification to emotionally disturbed, and referred the matter to the CSE for an appropriate classification and program for the 1989-90 school year.

On September 13, 1989, the CSE declined to change the child's classification, because it believed it needed a more current psychological evaluation, and notified petitioners that it would have an additional evaluation performed. The CSE recommended that the child be placed in a regular second grade, and that he receive resource room services for two hours per day, small group speech/language therapy twice per week, and individual counseling once per week. The CSE further recommended that the child's program be reviewed at the end of the first marking period. On December 13, 1989, the CSE recommended that the child's resource room services be reduced to eight and one-half hours per week, and that an aide be provided to be with the child when time-out procedures were required, i.e. when the child left the classroom to go to another room because his emotions were too intense to permit him to benefit from instruction.

In January, 1990, a private neurological evaluation of the child was completed. The evaluator described the child as cooperative, but distractible, during the evaluation. The child achieved a verbal IQ score of 75 and a performance IQ score of 77. However, the evaluator hypothesized that the child's performance was affected by his limited verbal fluency, poor fine motor skills and inconsistent attention to task, and that the child's performance on particular verbal and non-verbal subtests of the IQ test in which he achieved scores of 115 and 110, respectively, was a more accurate representation of the child's ability. The child's arithmetic skills were assessed to be well below his reading and spelling skills. However the evaluator cautioned that, despite the child's achievements in reading decoding and spelling, the child did not have sufficient comprehension or motor ability to permit his independent application of those skills in novel contexts. The evaluator recommended that the child receive individualized instruction to develop his basic cognitive, perceptual and motor abilities, with greater emphasis on habilitative training at a basic level.

In March, 1990, respondent completed a speech/language re-evaluation. Although the child was nine years old, his receptive and expressive one word vocabulary scores were equivalent to those of children at the ages of six years, and ten months and seven years and four months, respectively. The child achieved scores at or above his chronological age expectancy on most subtests of a language test of problem solving, except the subtest involving determining causes, on which the child's performance was equivalent to that of a four year and ten month old child.

Notwithstanding petitioners' objection to the child's evaluation by school district employees, a school psychologist evaluated the child on two occasions during the 1989-90 school year, while the child was in second grade. In May, 1990, a CSE subcommittee in the child's school decided to refer the child to the CSE, so that a more integrated program could be provided to the child. A meeting of the CSE to consider the child's classification and placement for the 1990-91 school year was scheduled for June 20, 1990. However, petitioners obtained a temporary restraining order from the United States District Court for the Northern District Court of New York (Court), which precluded the CSE from meeting until petitioners had the opportunity to submit information about the child to the CSE.

Petitioners also requested that an impartial hearing (hereafter "First impartial hearing") be held to review the use of the evaluations which the district's school psychologist had performed. The hearing commenced in August, 1990, and ended on February 1, 1991. During the pendency of that hearing, the child was enrolled in a regular third grade at respondent's Roosevelt Elementary School, where he continued to receive speech therapy and resource room services, as well as counseling. An aide was assigned to remove the child from class, when necessary, and to supervise him in a "time-out" room.

The child's behavior, as reported by the school staff, deteriorated during the Fall of 1990. At the hearing, respondent's staff, including the child's third grade teacher, resource room teacher and speech/language therapist, testified that the child had struck school employees, thrown objects at other children, and was disruptive in their classes. A meeting of the CSE was scheduled for December 5, 1990, for the purpose of considering a change in the child's program. Petitioners were given notice of the meeting, which specified that the CSE would not consider the psychological evaluation performed by its school psychologist which was the subject of the first impartial hearing. On December 4, 1990, the parents asked the hearing officer in the first impartial hearing to enjoin the CSE from meeting on the next day. The hearing officer declined to do so, on the ground that he lacked the jurisdiction to enjoin the CSE from meeting.

On December 5, 1990, the CSE recommended that the child remain classified as learning disabled pending the outcome of the first impartial hearing, and that the child's program be changed to a self-contained special education class of not more than twelve children with a teacher and an aide, located in respondent's Horace Mann School. The CSE also recommended that the child receive speech/language therapy twice per week in a small group, and receive individual counseling twice per week. The child's parents did not attend the December 5, 1990 CSE meeting. On December 11, 1990, the board of education approved the recommendation of the CSE. On December 14, 1990, petitioners' then attorney filed a request on their behalf for an impartial hearing to review the CSE's December 5, 1990 recommendation (hereafter "second impartial hearing"). The child last attended class in respondent's schools on December 19, 1990. In January, 1991, he was briefly enrolled in a parochial school. At the hearing, the child's father revealed that the child was enrolled in a home study program of instruction, and that petitioners did not intend to enroll the child in respondent's schools for the 1991-92 school year.

Petitioners appealed to the State Review Officer from the hearing officer's refusal to enjoin the CSE from meeting on December 5, 1990, and they also asked for an order from the State Review Officer annulling the CSE's recommendation and/or precluding the board of education from implementing the recommendation until it could be reviewed in an impartial hearing. The parents' appeal was dismissed on the grounds of mootness and failure to exhaust their administrative remedy of a hearing on the merits of the self-contained class (Application of a Child with a Handicapping Condition, Appeal No. 90-25). The matter was moot, because on December 19, 1990, the board of education commenced a separate action in the Court, to obtain an order allowing it to change the child's program, notwithstanding the pendency provisions of Federal and State law (20 USC 1415 [e][3]; New York State Education Law Section 4404 [4]). The Court granted a temporary restraining order allowing the child's program to be changed, as of January 4, 1991, and held an evidentiary hearing on January 11, 1991, with respect to the board of education's request for a preliminary injunction.

In a memorandum decision and order dated March 5, 1991, the Court noted the parties' consent for the Court to rule upon respondent's motion as a request for a permanent injunction and granted the board of education's motion allowing the child to be unilaterally placed on an interim basis in the class recommended by the CSE, pending the outcome of administrative proceedings under the Education Law, i.e., an impartial hearing. The issues before the Court were whether there was a substantial likelihood of injury to the child or other children if the child remained in a regular third grade class during the pendency of the hearing to review the appropriateness of the self-contained class (See, Honig v. Doe, 484 U.S. 305) and whether the self-contained class was more appropriate than the regular class as an interim placement. The Court expressly declined to rule upon the appropriateness of the special education class recommended by the CSE as a long-term placement for the child.

In a decision dated August 12, 1991, the hearing officer in the first hearing held that parental consent to the re-evaluation of the child was not a prerequisite under Federal or State law and that the record provided ample support for the need to conduct a further evaluation of the child. The hearing officer also held that the CSE had failed to provide adequate notice of its intention to conduct a further evaluation of the child. The hearing officer, noting that the parents had withdrawn the child from public school, directed the CSE to re-evaluate the child in the event that he was re-enrolled in the Binghamton public schools.

The second impartial hearing commenced on March 3, 1991. Petitioners were initially represented by an attorney, who agreed with respondent's attorney to admit into evidence at the second impartial hearing the transcript and exhibits from the first impartial hearing and the transcript and exhibits from the United States District Court hearing of January 11, 1991. However, petitioners subsequently elected to proceed without an attorney, and would not agree to the admission of the records of the first impartial hearing and the Court hearing. The hearing officer ruled that he would not accept the transcripts of the two hearings, in the absence of a stipulation between the parties, but did agree to consider the exhibits from the prior proceedings, if offered by either party.

Respondent appealed from the hearing officer's interim decision with regard to the admission into evidence of the records of the first impartial hearing and the Court hearing. Respondent's appeal was dismissed upon the ground that it had no clear legal right to the relief which it sought (Application of the Board of Education of the City School District of the City of Binghamton, Appeal No. 91-31).

The second impartial hearing was completed on September 17, 1991. By decision dated May 19, 1992, the hearing officer held that the special education class recommended by the CSE on December 5, 1990 was appropriate and was the least restrictive environment for the child at the time the recommendation was made. The hearing officer further held that the notice given to petitioners of the CSE's recommendation did not comply with the State regulatory requirement (8 NYCRR 200.5 [a][4][ii][c]) that the parents be advised that the child will remain in his then current placement during the pendency of any proceeding to review the CSE's recommendation. However, the hearing officer concluded that petitioners had not been prejudiced by respondent's omission. The hearing officer noted that petitioners' removal of their child from respondent's schools precluded respondent from performing an annual review or triennial re-evaluation. He directed respondent to comprehensively re-evaluate the child, if the child is ever re-enrolled in the Binghamton Public Schools. Pending such a re-evaluation of the child, the hearing officer held that the child's current placement, for purposes of Section 4404 (4) of the Education Law, was the special education class recommended by the CSE on December 5, 1990. Lastly, the hearing officer declined to rule upon the issue of the reimbursement of petitioners for the costs of speech therapy and counseling which they might incur, because they raised the issue for the first time in their post-hearing summation.

Before considering the merits of petitioners' appeal, I will first address a procedural issue which they raise. In a reply to the answer, petitioners assert that the answer is untimely. The record reveals that the petition was served on July 6, 1992. Petitioners assert that they received the answer on July 8, 1992. However, the affidavit of service of the answer reveals that the answer was mailed to petitioners on July 16, 1992. Service by mail is completed when the document to be served is deposited at a post office or its depository. Consequently, I find that the answer was timely because it was served within 10 days after service of the petition (8 NYCRR 279.5; 8 NYCRR 275.8 [b]).

Petitioners assert that the hearing officer erred by not addressing the issue of respondent's CSE attempting to change the child's placement during the pendency of the first impartial hearing. In essence, petitioners seek to re-litigate the issue which was before the Court. Both Federal and State law provide that during the pendency of any proceeding to review the proposed action by a school district, the child shall remain in his then current placement until all proceedings are complete, unless the parents and school district otherwise agree (20 USC 1415 [e][3]; Section 4404 (4) of the New York State Education Law). In Honig v. Doe, 484 US 305, the Supreme Court held that school officials could invoke the aid of the courts pursuant to 20 USC 1415 (e)(2) to obtain injunctive relief to change a child's placement pending the completion of an impartial hearing, upon a showing that maintaining a child in his or her current placement is substantially likely to result in injury to the child or to others. Respondent obtained such an injunctive order from the Court. At the hearing, petitioners suggested that the CSE should have convened an impartial hearing to effect a change in the child's program with which petitioners disagreed. However, respondent complied with the holding in Honig v. Doe, supra, and the Court authorized a change in the child's program on an interim basis pending the completion of the first and second impartial hearings. The purpose of the second impartial hearing was to determine if the child should remain in the interim program after both administrative proceedings and any reviews were concluded.

Petitioners assert that the hearing officer disregarded the opinions of experts, such as the psychologist who performed the 1990 neuropsychological evaluation, and gave too much credence to the testimony of respondent's employees. In essence, petitioners assert that the child's difficulties in school arise from his expressive/receptive language deficits, and that respondent's staff do not know how to address the child's needs. They urge that the child be permitted to continue in a regular education program, with appropriate special education services.

Respondent bears the burden of establishing the appropriateness of the program recommended by its CSE, and may meet that burden by showing that the program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176). Because of the protracted dispute over the re-evaluation of the child by respondent's staff there is a dearth of current information about the child in the record. However, the evaluation information and testimony which are in the record strongly suggest that the child requires a small, structured learning environment in which specialized instruction could be provided to address the child's specific needs. The child's neuropsychological evaluation revealed the need to develop the child's cognitive, perceptual and motor abilities, which in view of the child's age should be developed on a full-time, immediate basis to enable the child to benefit from generalized instruction. The child has weaknesses in mathematical concepts and calculations, which are appropriately addressed by using manipulative materials. Although there is a degree of uncertainty concerning the extent of the child's expressive and receptive language deficits, there is no dispute that the child does have deficits which can be appropriately addressed through the use of whole language instructional techniques. The special educator member of the CSE testified at the hearing that the whole language approach would assist a child with expressive language deficits, because in a class where the whole language technique is used, there is a greater need to express oneself. The record reveals that the child needs to develop appropriate social skills, to reduce his verbal and physical aggression, his difficulty in working cooperatively in groups and his lack of control of his emotions. The child's management needs require that he receive instruction in a consistent, structured environment, with a minimum of change in his daily environment.

To address the child's needs, the CSE recommended that the child receive primary instruction in a class of no more than twelve children, with a teacher assisted by an aide. Respondent's school psychologist testified that a class with fewer children would provide less distraction for this child, and that the recommended class would address the child's educational needs. The special educator member of the CSE testified that the special education class could provide services which the child needed, in a less fragmented manner than a regular education class from which the child would be removed for specialized instruction. Although petitioners did not present any expert witnesses at the hearing, I have considered the written reports of their experts which are in the record. I find that there is not a substantial discrepancy between the opinions expressed by their experts and respondent's staff.

Federal and State regulations require that each child's program or placement be in the least restrictive environment (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]). A child may not be removed from a regular education class and placed in a special education class, except when education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. The record reveals that respondent has tried a variety of techniques, including the use of an aide in the classroom, the "time-out" room, and the behavior management plan of the child's psychologist. The child's increased need for time away from class in a "time-out" room was seriously impacting upon his ability to benefit from instruction. Upon the record before me, I find that a special education class with appropriate related services was the least restrictive environment for the child at the time of the CSE's recommendation. In view of the passage of approximately eighteen months since then, it is apparent that the child must be re-evaluated, so that the CSE can discharge its obligation to recommend an appropriate program for the 1992-93 school year.

THE APPEAL IS DISMISSED.