92-039

Petitioner appeals from the determination of an impartial hearing officer upholding the recommendation of respondent's committee on special education (CSE) that petitioner's child be enrolled in a modified instructional services-V (MIS-V) program in Intermediate School 237, for the 1992-93 school year. The appeal must be sustained.

Petitioner's child, who is twelve years old, has been classified as mentally retarded since his entry into kindergarten in respondent's P.S. 201 in September, 1985. Although petitioner challenged the child's classification in two prior proceedings, in this appeal the record reveals that she did not dispute the correctness of the child's classification at the proceeding from which petitioner now appeals. Moreover, the psychological evaluations which are in the record demonstrate that the child's general intellectual functioning is more than 1.5 standard deviations below the mean, with concurrent deficits in the child's adaptive behavior. Accordingly, the child is appropriately classified as mentally retarded (8 NYCRR 200.1 [ff][4]).

For the 1985-86 and 1986-87 school years, the child was enrolled in a MIS-V program, and received speech/language therapy. In July, 1987, an impartial hearing was held to review the child's classification and placement. In a decision dated August 10, 1987, a hearing officer found that the child was appropriately classified as mentally retarded, and that respondent's MIS-V program was appropriate for the child. The hearing officer cautioned that the child should be closely monitored because of his aggressive behavior. In December, 1987, the child was re-evaluated. The CSE recommended that the child be enrolled in respondent's specialized instructional environment-VI (SIE-VI) program, which one witness at the hearing testified is a program for children with severe emotional and behavioral needs. Petitioner agreed with the CSE's recommendation. In April, 1988, the child entered the SIE-VI program at P.S. 186. The child remained in the SIE-VI program through the 1990-91 school year. For the 1991-92 school year, the CSE proposed that the child continue in the same program, but matriculate to P.S. 177. The proposed change of location was based upon the child's age. Petitioner objected to the proposed change of location. The CSE then recommended that the child be re-enrolled in the MIS-V program and that he receive one period per day of resource room services. Petitioner objected to the CSE's recommendation, and received permission to instruct the child at home for the 1991-92 school year (8 NYCRR 100.10).

In February, 1992, petitioner asked respondent to provide a public placement for the child. On February 12, 1992, respondent received a request from petitioner for an impartial hearing, for the stated purpose of having the child placed in a MIS-I program or being provided with home instruction by a certified teacher. In her request, petitioner advised respondent that she intended to bring a legal action against respondent for alleged negligence in educating the child.

The parties agreed that the child would be re-evaluated by the CSE. In a social history update, petitioner reportedly informed a school social worker that she sought a school placement because the child lacked contact with others and that she intended to seek approval for the placement of the child in a private school, at respondent's expense. Petitioner also stated that the child had self-help skills, but had some difficulty putting on his sneakers and using clothing snaps. In a psychological evaluation completed on February 25, 1992, the child attained a score of 36 on the Stanford-Binet Intelligence Scale. The psychologist who performed the evaluation reported that the child's performance in all areas tested was in the mentally retarded range. The child's score on a test of perceptual-motor integration was equivalent to that of a four year old child. The psychologist opined that the child was easily distracted, somewhat anxious, and impulsive when challenged.

In an educational assessment also completed on February 25, 1992, the child was reported to have displayed significant articulation and language delays, and his short-term auditory memory was described as very poor. The evaluator reported that the child was unable to write a full sentence, and that his spelling skills were equivalent to those of a six year old child. The child's word recognition ability was at a 2.2 grade level equivalent, but the child's silent reading comprehension skill was assessed to be at a 1.4 grade equivalent. The evaluator found that the child had poor listening comprehension skills, and very poor graphomotor skills. Although the child could correctly identify numbers, ordinal positions and numbers in consecutive order, he was unable to do basic addition or subtraction. The evaluator recommended that the child be instructed in a very small structured setting, with much individual attention.

The CSE recommended that the child remain classified as mentally retarded, and that he be instructed in an unspecified, private, day school program. At the hearing, the CSE chairperson testified that the CSE had recommended a private school program because the only available MIS-V program for the child was located in P.S. 201 and petitioner objected to any placement in that school. Petitioner rejected the CSE's recommendation. An impartial hearing was held on May 11, 1992, to review the CSE's recommendation. During the course of the hearing, respondent offered to place the child in a MIS-V program at the intermediate school level for the 1992-93 school year. In a decision dated May 29, 1992, the hearing officer held that the child was appropriately classified as mentally retarded. The hearing officer further held that the child required placement in a small class where he could be taught academics on his functional level and where he could have an opportunity to socialize with non-disabled peers. While noting that the child could no longer be educated in an elementary school site and that respondent had attempted to find an appropriate site for the remainder of the 1991-92 school year, the hearing officer held that respondent could not offer a new program for the 1992-93 school year to petitioner without affording her the notice and other procedural safeguards set forth in Federal and State regulations. The hearing found that the child's receptive language and auditory memory skills were far below his age expectancy, and directed respondent to provide speech/language therapy in an amount to be determined after a physical examination and consultation with a private evaluator. The hearing officer further directed respondent to provide a program for the child in the least restrictive environment.

On June 19, 1992, the CSE recommended that for the 1992-93 school year the child be enrolled in a MIS-V program located in I.S. 237, where he would receive individual speech/language therapy twice per week. The next day, petitioner requested that a hearing be held to review the CSE's recommendation. A hearing was held on August 25, 1992. At the outset of the hearing, the parties disclosed to the hearing officer that they had agreed that the child should not receive speech/language therapy, notwithstanding the other hearing officer's decision and the child's IEP for the 1992-93 school year.

In a decision dated September 22, 1992, the hearing officer held that the MIS-V program recommended by the CSE was appropriate to meet the child's special educational needs. The hearing officer found that the child required "functional academics", i.e. instruction in life skills, rather than the academic instruction sought by petitioner. Relying upon the testimony of respondent's witnesses, as well as a documentary description of the MIS-V program, the hearing officer found that the MIS-V program would provide the child with instruction in life skills, while permitting the child to participate with non-disabled children in appropriate activities. The hearing officer further found that the class at I.S. 237 recommended for the child was suitable.

Respondent asserts that petitioner should be required to re-serve her petition upon respondent, because she failed to comply with the requirement imposed by 8 NYCRR 279.2 (b) that a notice of intention to seek review be served not less than ten days before the petition is served. Petitioner served the notice of intention and the petition together, on October 16, 1992. I find that no purpose would be served by requiring petitioner to serve the petition again. Respondent has answered the petition, and under the circumstance I excuse its brief delay in answering the petition.

Petitioner in this appeal makes a number of assertions about matters which are not within the scope of my review of the hearing officer's decision. Petitioner's assertion that her child's academic difficulties originated with an allegedly inadequate evaluation of the child is both untimely and barred by her failure to appeal from the August 10, 1987 hearing officer's decision upholding the child's classification and placement. Her challenge to the impartiality of the hearing officer who rendered the 1987 decision is also untimely. Petitioner also complains about the conduct of teachers and the principal of P.S. 201, and asks that an investigation of their fitness to teach be conducted. Such a request is clearly outside the scope of a review of a hearing officer's decision, as is petitioner's request for an order directing the school psychologist to refrain from harassing petitioner.

The central issue in this appeal is whether the program recommended by the CSE is appropriate. Respondent bears the burden of establishing the appropriateness of its recommended program (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 it 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 is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]).

An appropriate program begins with an IEP which has been prepared in accordance with the requirements of Federal and State regulations. Federal and State regulations require that the child's teacher be present at a CSE meeting at which an IEP's prepared (34 CFR 300.344 [a][2]; 8 NYCRR 200.4 [c][3]). Where a child has previously been classified as disabled, the child's special education teacher must attend. In this instance, the child had been previously classified, but was not receiving any special education while being instructed by petitioner at home. Where a child has not previously been classified, either the child's regular education teacher or a teacher qualified to provide instruction in the area of the child's suspected disability must be present at the CSE meeting (34 CFR Part 300, Appendix C, Question 15). It is clear that the regulatory scheme requires the participation of an appropriately credentialed teacher. Under the unique facts of this case, I find that the CSE erred in not including a teacher qualified to provide instruction to a mentally retarded child. The child's IEP reveals that at the June 19, 1992 CSE meeting when the child's 1992-93 IEP was prepared no teacher of the mentally retarded participated. At the hearing, someone identified only as an educational evaluator testified that he had taught special education classes and that he had attended various CSE meetings involving the child. However, the record failed to show whether the evaluator was licensed or certified to teach the mentally retarded or whether he was even a participant at the June 19, 1992 CSE meeting. Accordingly, I find that respondent has failed to demonstrate that the child's IEP was prepared by a validly composed CSE (Application of a Child with a Handicapping Condition, Appeal No. 92-31).

State regulation requires that, in developing a child's IEP, a CSE must consider the child's academic or educational achievement and learning characteristics, the child's social development, the child's physical development and the child's management needs (8 NYCRR 200.1 [kk][1]). This child's IEP describes the child's management needs as:

"Small class for mentally retarded youngsters who require functional academic instruction. Speech and language therapy as directed by Impartial Hearing decision. Language stimulation in the classroom"

I find this description to be inadequate, in light of the CSE's recommendation that the child be placed in a class of not more than ten children, with a teacher and an aide. In the continuum of alternative placements which must be available for disabled children (34 CFR 300.551), the program recommended by the CSE is one of the more restrictive programs. State regulation provides that classes of that approximate size which are taught by a teacher with the assistance of an aide are for children whose management needs interfere with the instructional process, to the extent that an additional adult is needed within the classroom (8 NYCRR 200.6 [f][4][i]). Neither the child's IEP nor the entire record reveals a basis for concluding that the child's management needs require his placement in such a restrictive setting. I find that respondent has failed to demonstrate that the recommended program is the least restrictive environment.

Although I concur with the hearing officer's finding that the child requires instruction in functional academics, the record is inadequate to establish that the MIS-V class at I.S. 237 would be appropriate. In his decision, the hearing officer quoted from a document published by respondent which purportedly described respondent's MIS-V program. However, without explanation, the document is not part of the record. I have previously held that the use of written program descriptions which are not included in the record of the hearing is improper (Application of a Child with a Handicapping Condition, Appeal No. 92-31). In any event, such a general program description would be insufficient to determine the appropriateness of a program. At the hearing, respondent offered the testimony of a special education site supervisor, who did not supervise the MIS-V program at I.S. 237. The supervisor based her testimony about the MIS-V program upon her experience supervising elementary-level special education programs. No other witness with actual knowledge of the recommended program testified on behalf of respondent. The special education site supervisor also briefly testified concerning the characteristics of the other children in the proposed class at I.S. 237, apparently on the basis of a class profile which could not be introduced into evidence because it had not been properly disclosed to petitioner before the hearing (8 NYCRR 200.5 [c][10]). I find that the brief testimony by the site supervisor was inadequate to establish that the child would have been appropriately grouped with children of similar needs (8 NYCRR 200.6 [f][2]).

Finally, I note that the issue of the child's need for speech/language therapy is not before me because of the parties' agreement to dispense with that related service (Hiller v. Brunswick Central School District Board of Education, 674 F. Supp. 73 [N.D.N.Y., 1987]). Nevertheless, I must point out that changes in the amount of services to be provided to a child cannot be made without holding a CSE meeting to revise the child's IEP (34 Part 300, Appendix C, Question 51).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer 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 an appropriate program for the child for the 1992-93 school year.