92-033

Petitioner appeals from the decision of an impartial hearing officer that held that respondent had not met its burden of proving the appropriateness of a Board of Cooperative Educational Services of the First Supervisory District of Suffolk County (BOCES) special education program which respondent's committee on special education (CSE) had recommended for petitioner's child, but nevertheless authorized the CSE to place the child in such program for the 1992-93 school year, upon the CSE's receipt of additional information about the BOCES program. The appeal must be sustained.

Petitioner's child is 17 years old. The child initially attended respondent's Westhampton Beach Elementary School, while living with petitioner following her divorce from the child's father. While in first grade, the child experienced difficulty listening, following directions and working with a group of peers. In August, 1982, the child was evaluated for the existence of a handicapping condition. The child exhibited cognitive abilities within the average range, and demonstrated that his academic proficiency was at the appropriate grade level. On the basis of personality test results, the psychological evaluator opined that the child was reacting to his parents' divorce, and recommended counseling. The record does not reveal whether the child was classified or received counseling.

After living with petitioner for approximately four years, the child moved to his father's residence in the Riverhead Central School District, where he completed the eighth grade. A psychiatric evaluation of the child performed in June, 1989 reached the conclusion that the child had a conduct disorder. On June 15, 1989, the Riverhead CSE recommended that the child be classified as emotionally disturbed and that he receive one period per day of resource room services and group counseling.

The child returned to live with petitioner, and entered eighth grade in respondent's schools, in September, 1989. The record does not reveal why the child repeated eighth grade. In October, 1989, the child was psychologically evaluated, as a result of his inappropriate behavior. Respondent's school psychologist found that the child's affect was constricted, and that he was highly guarded and restrained in his interaction with others. The school psychologist described the child as highly impulsive, heedless and not understanding the need to alter his behavior to conform to school rules. The school psychologist recommended that the child be placed in a BOCES special education class, and that he receive psychotherapy. The record contains little other information about the child's academic performance or behavioral difficulties and no information about the educational program during the 1989-90 school year. On May 9, 1990, the child was evaluated by a BOCES psychiatrist, who found that the child's mood was depressed and his affect was constricted. The psychiatrist reported that the child was aware of his personal problems, but exhibited a tendency to avoid conflict and project blame. The psychiatrist opined that the child demonstrated signs of a conduct disorder and recommended another psychiatric evaluation to rule out the existence of major depression. Noting that the child had suffered significant stress through his life and had a pervasive feeling of not being wanted, the psychiatrist further opined that the child's underlying anger should be promptly addressed.

In August, 1990, an additional psychiatric evaluation was conducted at petitioner's request at the Stonybrook University Hospital, where he was diagnosed as having an oppositional defiant disorder, with chronic moderate stressors. The Stonybrook psychiatrists recommended that a psycho-educational evaluation be performed.

For the 1990-91 school year, the child's ninth grade program included academic instruction in a self-contained special education class in respondent's school and mainstreamed occupational education at the BOCES. During that school year, the CSE recommended that the child be enrolled in a BOCES special education class for academic instruction. Petitioner objected to the CSE's recommendation. At an impartial hearing held on April 12, 1991, petitioner and respondent stipulated that the child would remain in respondent's special education class, using a behavior modification program to be developed by the child's psychologist and a school psychologist, for the remainder of the 1990-91 school year. The parties further agreed that if the child demonstrated success, he would remain in the special education class for the 1991-92 school year and he would be mainstreamed for at least one of the three subjects for which he had previously received special education. If the chid was not successful for the balance of the 1990-91 school year, it was agreed that he would attend the BOCES for academic instruction during the 1991-92 school year. The hearing was terminated, but the hearing officer retained jurisdiction.

The chairperson of the CSE testified at a subsequent hearing that the child generally behaved satisfactorily for the remainder of the 1990-91 school year. The child's academic achievement, as of April, 1991, was at or above grade level in reading, mathematics, and spelling (Exhibit 15). In a psychological evaluation performed in June, 1991, respondent's psychologist reported that there was a wide variation in the child's cognitive skills, ranging from very superior to borderline. The school psychologist opined that the child's emotional problems, which included anxiety, tension, and feelings of inadequacy and vulnerability, affected his academic achievement, and recommended that the child receive psychotherapy.

On June 25, 1991, the CSE recommended that the child remain in respondent's special education program for instruction in mathematics and social studies, and be mainstreamed for the remainder of the school day during the 1991-92 school year. The minutes of various CSE meetings conducted during the 1991-92 school year reveal that the child was mainstreamed for mathematics for a portion of the school year and received special education in English, and social studies in the morning. The child also received regular occupational education during each afternoon. The child's special education teacher for most of the school year testified that the child had done well in English and social studies for the first two quarters of the school year. However, the teacher testified that the behavior modification program, which was focused upon the child's use of inappropriate language, refusal to follow directions and striking or threatening of his peers, had not been effective. Whenever the child exhibited any of these behaviors, the program provided that he would be sent to a "time-out" area in the classroom, or ultimately removed from the class for repeated misbehavior. The teacher testified that as the child's behavior worsened, he was sent to "time-out" or removed from class more frequently and began to flounder academically.

At the request of the child's teacher, the CSE met in early March, 1992 to review the child's performance. The minutes of the CSE's March 11, 1992 meeting reveal that the CSE recommended that the child receive individual counseling from a school psychologist twice per week. On March 25, 1992, the child was evaluated, at respondent's request, by a psychiatrist, who opined that the child had an atypical depression and an oppositional defiant disorder. The psychiatrist recommended that the child receive both in-school and out-of-school counseling, and that petitioner participate in the child's out-of-school counseling. On March 26, 1992, the child was suspended from school for having brought a "knuckle knife" to school.

On March 31, 1992, the CSE met to consider whether the child's program should be changed as a result of his misconduct and suspension from school. Petitioner did not attend the CSE meeting. The CSE, with the apparent prior agreement of petitioner, revised the child's program to include special occupational education at the BOCES in the mornings, and a different special education class in respondent's school for two periods of academic instruction in the afternoons. The CSE chairperson testified that the child's behavior modification program was discontinued. The CSE minutes reveal that the CSE concluded that a different special education program available at the BOCES would better serve the child's needs, but the CSE deferred making a recommendation because of petitioner's absence.

On April 6, 1992, the child began attending the afternoon special education class. During an in-school suspension on April 9, 1992, the child made inappropriate remarks about respondent's staff, for which he received an out-of-school suspension.

On May 1, 1992, the CSE recommended that, as of June 1, 1992, the child be placed in the BOCES special education program, with a child to adult ratio of 8:1+1, for instruction in English, science, mathematics and social studies, and continue with BOCES special occupational education, "as tolerated". The CSE further recommended that the child receive individual counseling at the BOCES, three times per week. Petitioner did not agree with the CSE's recommendation. The hearing officer reconvened the impartial hearing, which was held on May 21, 1992.

By decision dated July 7, 1992, the hearing officer found that respondent had not established that the BOCES would accept the child, because the CSE had not submitted the child's records to the BOCES, and that there was little in the record which demonstrated how the proposed program was sufficiently different from the child's current program to warrant the proposed change in programs. Nevertheless, the hearing officer remanded the matter to the CSE, with directions to share the child's records with the BOCES, have a BOCES representative available at a CSE meeting to discuss the BOCES program with petitioner, and authorized the CSE to place the child in the BOCES program for the 1992-93 school year. On July 16, 1992, the CSE met with a representative of BOCES. Petitioner did not attend the CSE meeting, because she mistakenly believed that the meeting was to be held on the next day. The CSE recommended that the child be placed in the BOCES program which it had recommended on May 1, 1992. On August 3, 1992, respondent approved the CSE's recommendation.

Before considering the merits of petitioner's appeal, I will first address a procedural issue raised in petitioner's reply to respondent's answer. Petitioner asserts that the answer is untimely, because she served the petition upon respondent on August 10, 1992, but did not receive respondent's answer until August 22, 1992. An answer must be served within 10 days after service of the petition (8 NYCRR 279.5). The affidavit of service submitted with the answer reveals that the answer was served upon petitioner, by depositing a copy in the mail on August 20, 1992. Although petitioner asserts that the envelope in which she received the answer was postmarked August 21, 1992, I find that there is insufficient evidence to rebut the affidavit of service, and further find that the answer is timely.

The remainder of petitioner's reply cannot be considered in this appeal. In accordance with the provisions of 8 NYCRR 279.6, a reply may be considered only with respect to any procedural defenses interposed in the answer or any additional documentary evidence submitted with the answer. The answer does not raise any procedural defense. Although three of the four exhibits annexed to the answer were not part of the hearing record, petitioner also submitted a copy of one of the exhibits with her petition, and the other two exhibits (the minutes of the CSE's July 16, 1992 meeting and the CSE chairperson's letter to petitioner dated July 24, 1992) do not raise new issues and are not specifically addressed in the reply.

Petitioner asserts that she has never received a detailed delineation of the related services which would be offered to her child in the recommended BOCES program. State regulation requires that a CSE indicate on a child's individualized education program (IEP) the initiation date and amount of each related service which the child will receive (8 NYCRR 200.4 [c][2][v]). The child's IEP prepared at the May 1, 1992 CSE meeting specifies that the child would receive 30 minutes of individual counseling three times per week, to begin on June 1, 1992. The CSE chairperson testified at the hearing that the CSE had not recommended any other related service. I find that respondent complied with the regulatory requirement, and that petitioner's assertion is without merit.

Petitioner challenges the appropriateness of the recommended program, upon the ground that the witnesses presented by respondent in support of the program lacked personal knowledge of the BOCES program. Petitioner also asserts that the child's private psychologist, his guidance counselor and the director of the BOCES special occupational program have both opined that the recommended BOCES academic program would not be appropriate for the child. However, none of these individuals testified at the hearing and there is no documentary evidence reflecting the opinions of these individuals in the record. With regard to petitioner's assertion about the witnesses' lack of personal knowledge of the BOCES program, the record reveals that neither the child's two special education teachers for the 1991-92 school year who testified in support of the BOCES program had personal knowledge of the program. The CSE chairperson and a school psychologist who was also a member of the CSE demonstrated some familiarity with a BOCES program in the testimony. In any event, the absence of personal knowledge by CSE members of a proposed placement is not per se proof of the inappropriateness of the placement (Matter of Handicapped Child, 23 Ed. Dept. Rep. 386; Matter of Handicapped Child, 24 id. 7). However, it may affect the weight to be given to their testimony in support of such placement.

It is well established that a board of education hears the burden of establishing the appropriateness of its recommended program or placement (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Matter of Handicapped Child, 23 id. 415; Application of a Child with a Handicapping Condition, Appeal No. 92-7). To meet its burden, respondent must demonstrate that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176), and that the recommended program or placement is the least restrictive environment for the child (34 CFR 300.550 [b]); 8 NYCRR 200.6 [a][1]). The placement of a child in a BOCES center, which the record reveals serves only disabled children, and is not the school which the child would attend but for his disability, is a more restrictive environment than the child's present placement. Therefore, it was necessary for respondent to establish that the child's needs could not be met in the less restrictive environment.

I find, as did the hearing officer, that the CSE had not discharged its responsibility to recommend an appropriate program or placement. The CSE chairperson testified that he had been informally advised by a BOCES representative that the child could be appropriately placed in the BOCES, but conceded that the CSE had not submitted the child's records to the BOCES for screening and had not received any formal representation from the BOCES about the availability and appropriateness of its programs. A CSE may not delegate its responsibility to recommend a program or placement to a BOCES (Application of a Child with a Handicapping Condition, Appeal No. 91-25; Application of a Child with a Handicapping Condition, 28 Ed. Dept. Rep. 376). Nevertheless, respondent's CSE could not determine whether the proposed BOCES program could be implemented, i.e. was available and appropriate, because it had not provided the BOCES with the necessary information about the child. A placement recommendation which cannot be implemented is not an appropriate placement (Matter of a Handicapped Child, 20 Ed. Dept. Rep. 138; Matter of Bd. of Ed. Buffalo City School District, 21 id. 527).

I find that the hearing officer was correct in remanding the matter to the CSE, because the CSE's recommendation for a BOCES program was, at best, tentative (Application of a Child with a Handicapping Condition, Appeal No. 92-3). I further find that the hearing officer erred in authorizing the CSE to place the child in the BOCES program after affording petitioner the opportunity to meet with a BOCES representative and the CSE. Petitioner has the right to challenge the appropriateness of a specific program recommended by the CSE. The CSE has now made a specific program recommendation, presumably based upon information provided to it by the BOCES representative at the July 16, 1992 CSE meeting. However, that information was not available to the hearing officer and is not part of the record before me. In effect, the hearing officer's order authorizing the CSE to place the child in the BOCES program allows the CSE to avoid having its recommendation of July 16, 1992 subject to the due process procedures of Federal and State law.

Even if respondent had established at the hearing that the recommended BOCES program were available, I would nevertheless find that respondent had not met it burden of proving that it had offered an appropriate program. While respondent asserts that it demonstrated that the child's educational needs could not be met in its own self-contained class with a child to adult ratio of 12:1+1, and that the child requires the BOCES program with an 8:1+1 ratio, there is very little information about the child's educational needs in the record. The record does include a brief description of April, 1991 test results on the child's IEP and two very brief statements about the child's academic performance by his two special education teachers during their testimony, but is otherwise devoid of information about the child's educational performance.

The record focuses upon the child's behavior and management needs. Despite respondent's assertion that the child's previously agreed upon behavior management program was ineffective from the beginning of school in September, 1991, the CSE did not act to change the child's program until March, 1992, when it discontinued the behavioral management program and instituted counseling by the school psychologist. However, the CSE chairperson testified that the child had, in fact, received little of his recommended counseling because of his in-school and out-of-school suspensions. The efficacy of such counseling as a means of maintaining the child in the less restrictive in-district program had therefore not been determined. The chairperson further testified that the BOCES program would be appropriate because counseling could be provided three times per week, but was only available to children in respondent's school on a once per week basis. Respondent's unwillingness to provide counseling more than once per week does not afford a basis for placing a child in a more restrictive program.

The CSE chairperson also testified that the BOCES program could provide more structure and more individual contact with the child because of the lower adult to child ratio of 8:1+1 in the BOCES program, as opposed to the 12:1+1 ratio in respondent's own program. There is nothing in the record to support the chairperson's conclusory statement that the BOCES program would provide more structure. The record further reveals that in the second class to which the child was assigned in the district, the child to adult ratio was, in fact, smaller than that of the BOCES. Upon the record before me, I find that respondent has not offered an adequate basis for its CSE's recommendation to place the child in a more restrictive program.

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 days after the date of this decision respondent's committee on special education shall recommend a program for the child for the 1992-93 school year which is consistent with the tenor of this decision.