92-029

Petitioners appeal from the decision of an impartial hearing officer upholding the recommendation by respondent's committee on special education (CSE) that petitioners' child be enrolled in a regular education second grade class for all subjects except reading, mathematics and writing, which were to be taught in one of respondent's special education classes, for the 1991-92 school year. The appeal must be sustained.

Petitioners' child is 10 years old, and was initially classified as learning disabled while attending school in the Guilderland Central School District. The child received IQ scores which were in the mildly retarded range when he was tested in 1988, 1989 and 1990. Nonetheless, his evaluators have opined that such scores may not accurately reflect his cognitive ability because of the child's high level of distractibility and short attention span. In 1986 at the age of four, the child was evaluated by a neurologist, because the child's speech was delayed and he exhibited hyperactive behavior. The neurologist found no organic basis for the child's speech delay or hyperactivity, but suggested that the child receive Ritalin, a medication, shortly before undergoing a psychometric examination, to determine whether the child had a behavioral disorder or an organic disability. The neurologist's suggestion was not acted upon, and the etiology of the child's disability remains uncertain.

The child's disability is manifested by difficulties with immediate recall of information whether presented orally or visually, visual motor coordination, gross and fine motor coordination, an attention deficit, and somewhat unintelligible speech when he speaks rapidly. A psychologist engaged by respondent to evaluate the child in August, 1991, reported that the child performed reasonably well on tasks requiring nonverbal reasoning and the ability to separate essential from non-essential detail with pictorially presented information. The psychologist found that the child could gather and retain information at an almost age appropriate level, and recommended that he be taught strategies to enhance his ability to memorize. An independent educational evaluator testified at the hearing that the child's ability to understand what is said to him exceeds his ability to express what he is thinking. The independent educational evaluation of the child completed in August, 1991, when the child was 9 years old, revealed that his reading, arithmetic and writing skills were at the kindergarten to beginning first grade level.

Although an independent psychological evaluator suggested to the CSE that the child might be more appropriately classified as mentally retarded, the child's adaptive behavior has not been assessed. No child may be classified as mentally retarded without an assessment that shows deficits in adaptive behavior, as well as deficits in general intellectual functioning (8 NYCRR 200.1 [ff][4]). However, neither party has challenged the child's present classification as learning disabled, and it is therefore not an issue that I may review (Hiller v. Brunswick Central School District Board of Education, 674 F Supp. 73 [N.D. NY, 1987]).

During the 1986-87 and 1987-88 school years, the child attended two nursery schools. He remained at home for the 1988-89 school year, although he was old enough to attend school. For the 1989-90 school year, he was placed by the Guilderland Central School District in a special education class operated by the Board of Cooperative Educational Services of Albany, Schenectady and Schoharie Counties (BOCES). The child's mother testified at the hearing that the child was mainstreamed for a portion of the time into a regular kindergarten. In a year-end summary of the child's performance in the program, the BOCES reported that the child initially attended the regular kindergarten with an aide, but eventually was able to attend the class without the aide, and that he was performing academically as a mid-year kindergarten child.

In the Summer of 1990, petitioners became residents of respondent school district. Relying upon information provided to it by the BOCES, respondent's CSE recommended that the child be placed in a special education first grade class and that he be mainstreamed for special subjects such as art, music and physical education. The CSE further recommended that the child receive the related service of speech/language therapy, and be evaluated to determined his need for occupational therapy which he had received in his prior placement.

The child attended the recommended special education class for only five days, after which he was instructed at home by his mother, at the request of the then chairperson of the CSE. The principal of respondent's Lincoln Elementary School testified at the hearing that there were several incidents involving the child's inability to remain focused, and his expression of frustration, which culminated with the child biting a teaching assistant on both arms.

Although the child's instruction at home was intended to be for a short duration, he remained at home while the parties disagreed about whether an additional evaluation of the child should be conducted. While the dispute continued, the child was brought to school by his mother to receive speech/language therapy and occupational therapy, but respondent did not provide any instruction to the child. A letter dated September 14, 1990 from respondent's then director of pupil personnel services to petitioners reveals that respondent agreed that the child's mother would provide him with instruction.

In April, 1991, the parties resolved their dispute about the child's evaluation by agreeing that respondent would obtain a psychological evaluation and pay for an independent evaluation to be obtained by petitioners. The child's mother initially stayed with the child in school to assist him in making the transition back to school. The principal testified that upon his return to school the child again exhibited some of the behaviors he had displayed at the beginning of the school year. However, the school staff had moderated the child's behavior and had restored the child to the full program set forth in his individualized education program (IEP) by the end of the school year.

On August 17, 1991, the CSE met with petitioners and their independent educational and psychological evaluators to prepare the child's program for the 1991-92 school year. The CSE recommended that a final decision on the child's program be deferred until medical and neurological examinations were performed and their results considered by the CSE. The attorneys for the parties attempted, but were unsuccessful, in agreeing to an alternative interim program for the child. Petitioners unilaterally placed the child in a local Montessori School, which was not approved to provide instruction for children with handicapping conditions.

On October 25, 1991, the CSE considered the report of a school physician, who opined that there was no evidence of any medical problem, except an attention deficit disorder, which affected the child's ability to learn. The CSE also considered the report of the child's neurologist, who reported that the child's neurological exam was unremarkable, except for the child's decreased fine motor coordination. The CSE recommended that the child be placed in respondent's pilot inclusionary (regular education) second grade program, but that he receive special education instruction in respondent's learning center (a special education class) for no more than 3 hours each day for assistance in attaining his reading, mathematics, writing and socialization goals. The CSE also recommended that the child receive individual speech/language therapy once each week in his second grade class and twice each week at the therapist's office. The CSE deferred its recommendation for occupational therapy until a BOCES therapist could attend a CSE meeting. The CSE further recommended that the child be evaluated by a social worker to obtain an analysis of the child's behavior in school, and that he receive various test modifications. The child's IEP provided that the child's progress was to be reviewed prior to January 15, 1992. Respondent subsequently approved the CSE's recommendation.

In November, 1991, the child's independent psychological and educational evaluators observed the recommended placement. On January 3, 1992, petitioners' attorney requested, on petitioners' behalf, that an impartial hearing be held, because the independent evaluators had opined that the removal of the child from the regular education program for special education was not appropriate.

The hearing commenced on February 26, 1992, and was completed on April 15, 1992. By decision dated June 5, 1992, the hearing officer rejected petitioners' assertion that the child's IEP was defective because it provided for up to 3 hours of special education each day instead of specifying the exact amount of special education which the child was to receive, and held that the CSE properly accorded the child's teachers flexibility in determining the amount of special education. The hearing officer also held that the child's IEP provided appropriately modified academic annual goals for the child and that the recommended program was appropriate and the least restrictive environment for the child. For the 1992-93 school year, the hearing officer directed the CSE to consider any academic gains which the child had made, and directed petitioners to cooperate with the CSE.

Petitioners challenge the adequacy of the child's IEP because it does not specify the amount of time during which the child was to have received special education. They assert that they have been deprived of the opportunity to participate in the process of deciding how much special education the child was to have received, and that the CSE has improperly delegated that decision to the child's teachers. They further assert that the IEP should have provided for consultant teacher services to assist the child's regular education teacher by modifying the instruction which the regular teacher was to provide to the child. Respondent asserts that the child's IEP complies with all applicable provisions of Federal and State regulations.

Both Federal and State regulations expressly establish the parents' right to participate in meetings at which their children's IEPs are prepared (34 CFR 300.415 [a]; 8 NYCRR 200.4 [c][3]). Parental participation must include participation when a CSE decides what services it will recommend that a board of education shall provide for a child (34 CFR 300, Appendix C, Question 26). Although the Federal regulation prescribing the contents of an IEP (34 CFR 300.346) does not explicitly require the IEP to list the amount of time to be committed to each special service, the U.S. Department of Education has opined that boards of education must ensure that the amount of services is stated in a manner which is appropriate to each service and is clear to all participants in the development of the IEP (17 EHLR 287). It has further opined that the use of ranges of time in an IEP to describe the extent of special education services would not be consistent with Federal requirements (Ibid.). State regulation requires that an IEP set forth the extent to which a child will participate in regular education programs and the amount of time per day that the child will receive special education services (8 NYCRR 200.4 [c][2][iv] and [v]). I find that the designation of "three hours/day maximum special class instruction" in the child's IEP does not comply with either Federal or State regulation. Petitioners' assertion concerning the use of a consultant teacher involves the appropriateness of the child's program and will be considered in that context, rather than as a defect in the child's IEP.

The central issue in this appeal is the appropriateness of the program recommended by the CSE for the 1991-92 school year. Petitioners do not challenge the appropriateness of the child's IEP annual goals and objectives, but they assert that the child, with appropriate supportive services, could have achieved those goals in the less restrictive inclusionary second grade class, rather than in the special class which the CSE recommended for his reading, mathematics and writing instruction. Respondent asserts that the child has significant academic deficits and management needs which require that he receive special education in a special education class for a portion of the school day.

It is well established that a board of education bears the burden of establishing the appropriateness of the program which it has recommended for a child (Matter of a Handicapped Child, 22 Ed. Dept. Rep. 487; 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 (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176). 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]). 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., 1989]). Rather, the relevant question is whether the child can achieve the goals of his IEP within a regular education program, with the assistance of supplementary aids and services (Application of the Bd. of Ed. Schalmont CSD, Appeal No. 90-19; Application of a Child with a Handicapping Condition, Appeal No. 92-15).

The record discloses a certain amount of confusion about respondent's inclusionary program. At the hearing, respondent's director of pupil personnel services testified that the program was designed to allow disabled children to receive appropriate instruction in a regular education setting. The director testified that specialized instruction with appropriate curriculum modifications is provided by the inclusionary class teacher and a special education teacher who cooperatively meet the children's needs. If their needs in reading, writing or mathematics cannot be met in the inclusionary class, the children are removed from that class for a portion of the school day to receive instruction in respondent's learning center, which is a special education class physically adjacent to the inclusionary class. The teacher of the inclusionary class also testified that curricular modifications and specialized instruction are provided to disabled children in the class, and further testified that the learning center was used only as a place where children with temporary emotional difficulties could go to regain their self-control. However, the learning center teacher informed the independent psychological evaluator that if a child in the inclusionary program required any significant curriculum modifications, the child was removed from the regular class for instruction in the learning center. It is not necessary to resolve the apparent discrepancy involving the amount of curricular modifications made for other children, since the appropriateness of a regular class placement for this child does not depend upon what respondent may do for other children with different needs.

At the hearing, the district pupil personnel director conceded that the child could receive specialized instruction in reading, writing and mathematics in the inclusionary class, but asserted that the child's distractibility would hinder his performance in a large class. The chairperson of the CSE testified that the child required instruction in the learning center because his performance in the basic skills was too far below that of other children in the second grade inclusionary class. However, the inclusionary class teacher testified that three of the five disabled children in her class also functioned at the beginning first grade level and received specialized instruction from the learning center teacher in the inclusionary classroom. The record reveals that petitioners' child was functioning at a beginning first grade level. The CSE chairperson also conceded that the child could receive appropriate instruction within the inclusionary class, but expressed his preference for instruction in the learning center because of the child's management needs. The psychologist engaged by respondent to evaluate the child testified at the hearing that the child's most significant problem was behavioral, but that with appropriate adult guidance, the child performed well. The psychologist also expressed his preference for at least partial instruction in the learning center. At the hearing, the independent educational evaluator and the independent psychological evaluator each testified that the child could achieve the short-term objectives and the annual goals set forth in his IEP in a regular education second grade class, provided that the child received appropriate curriculum modifications. Both evaluators testified that the child required an aide to refocus the child and to make clear to him exactly what was expected of him. Although respondent's pupil personnel services director conceded that the child could use the services of an aide, the director did not offer an explanation for the CSE's failure to recommend an aide.

Upon careful consideration of the record before me, I find that there is an insufficient basis to conclude that the child could not have achieved his IEP goals in the inclusionary second grade class with appropriate curriculum modifications and the services of an aide. Consequently, I find that respondent has failed to demonstrate that the removal of the child from his regular education class for special education was required, and that the recommended program was not the least restrictive environment for the child.

In view of the fact that school will begin again in less than one month, it is essential that the CSE meet and prepare an IEP for the child which is consistent with this decision and the programming recommendations set forth in the August, 1991 report by the independent evaluators. Thereafter, the CSE should obtain an assessment of the child's adaptive behavior, to better understand the nature of the child's handicapping conditions and to plan appropriate goals for the child. After the child is in school, the CSE must obtain a behavioral analysis of the child by a psychologist, in order to ascertain effective classroom management techniques. In the event that the CSE recommends that the child be placed in a regular education class other than an inclusionary class, the CSE shall make provision for appropriate curriculum revisions, and shall consider the use of consultant teacher services. The child's IEP shall specify the time and location of the special education services to be provided to the child.

I have considered petitioners' remaining assertions, and find them to be without merit.

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, the CSE shall recommend a program for the 1992-93 school year for the child, in accordance with the tenor of this decision.