92-041

Petitioner appeals from the determination of an impartial hearing officer upholding the recommendation by respondent's committee on special education (CSE) that petitioner's child be reassigned from a class in respondent's modified instructional services-II (MIS-II) program with a child to adult ratio of 12:1+1 to a class in respondent's specialized instructional environment-VII (SIE-VII) program with a child to adult ratio of 10:1+1. The appeal must be sustained.

Petitioner's child, who is now 9 years old, entered kindergarten in September, 1988. The child was referred to the CSE, because he displayed hyperactivity in school. The child was classified as emotionally disturbed, and was placed in the modified instructional services-IV (MIS-IV) program, where he remained for two school years. In November, 1990, the child was reassigned to a MIS-II class located in respondent's P.S. 272. For at least part of the 1990-91 school year, the child also received tutoring.

Early in the 1991-92 school year, the special education site supervisor for P.S. 272 advised petitioner that the child was not being adequately served by the MIS-II program because the child was increasingly difficult to handle and was spending more and more time in a crisis intervention room. The site supervisor testified at the hearing that petitioner urged that the child be allowed to remain in the MIS-II program, while adjustments were made in the medication which the child received to control his hyperactivity. The child remained in the MIS-II program, while his teacher kept an anecdotal record of behavioral incidents involving the child. On December 12, 1991, the child's guidance counselor referred the child to the CSE for possible placement in a more restrictive setting. In his referral, the counselor described the child as angry, frustrated, and unable to control his aggressive impulses. The guidance counselor also referred to the child's self-destructive behavior, such as banging his head against a wall and picking at his skin until it bled.

In January, 1992, a social history of the child was prepared. The social history revealed that the child has been receiving psychiatric care since 1990, and that Haitian-Creole is the primary language in the child's home. On January 11, 1992, the child was evaluated by a psychologist who was fluent in Haitian-Creole. The psychologist found that the child used English for expression and learning, and Haitian-Creole to obtain attention. The child demonstrated skills between the average and retarded range on an intelligence test. The psychologist reported that the child's scores on an informal assessment of his word recognition and arithmetic computation skills were equivalent to beginning second grade and end of second grade, respectively. At the time of his evaluation, the child was midway through third grade. The psychologist reported that the child's visual-motor integration skills were approximately one year below average. After administering projective psychological tests, the psychologist opined that the child revealed feelings of depressed affect, poor self-esteem and a sense of aloneness. The psychologist recommended that the child continue in special education, receive psychotherapy, and be evaluated by a psychiatrist.

In a January 23, 1992 bilingual psychiatric evaluation, the child was diagnosed as having an attention deficit disorder with hyperactivity. Noting that the child had received two other medications for his hyperactivity, the psychiatrist recommended that a third medication be tried, and that the child and his family receive psychotherapy.

A bilingual educational evaluator, who tested the child on January 13, 1992, reported that the child's language of choice was English, but that the child was unable to follow more than a two-step direction because of his distractibility. The educational evaluator found the child's reading and mathematics skills to be at a first grade level, and reported that the child displayed his greatest weakness in performing visual-auditory learning tasks on which he exhibited poor short-term memory skills. The evaluator further reported that the child was unable to accurately sequence events or actions, and had insignificant concepts of time and money.

At a meeting held on March 13, 1992, the CSE recommended that the child remain classified as emotionally disturbed, but that his program be changed to a SIE-VII program with a lower child to adult ratio than the MIS-II program. The CSE further recommended that the child receive small group counseling once per week, small group speech/language therapy twice per week, and adaptive physical education. Petitioner was offered a specific placement for the child at P.S. 231 which is within P.S. 180.

Petitioner did not accept the CSE's recommendation, and asked for an impartial hearing. The hearing was not completed, because the parties reached an agreement to allow the child to remain in the MIS-II program to ascertain whether the child's medication would have a positive effect upon his behavior. By the end of the 1991-92 school year, respondent concluded that the CSE's recommendation for a change of programs should be implemented. Petitioner renewed his request for a hearing, which was held on September 16, 1992.

In a decision dated October 16, 1992, the hearing officer found that respondent had presented overwhelming evidence of the appropriateness of the recommended SIE-VII program, while noting that the child had exhibited extreme behavioral problems over an extended period of time while he was in the MIS-II program. The hearing officer further found that the child required speech/language therapy, notwithstanding petitioner's objection to the child's removal from class to receive such therapy.

In this appeal, petitioner does not challenge the child's classification as emotionally disturbed. However, he asserts that the child should not be placed in the more restrictive SIE-VII program, because his behavior has improved since his entry into the MIS-II program. Petitioner further asserts that the child's behavior has improved to the point that he no longer requires medication. Petitioner also objects to the provision of what he asserts is a bilingual program of instruction, on the ground that the child does not require bilingual instruction. Petitioner requests that I find that the child should remain in the MIS-II program.

Respondent requests that I remand the matter to the CSE, upon the ground that the March 13, 1992 CSE recommendation was fatally flawed by the absence of the child's teacher from the CSE meeting of that date.

Federal and State regulations require that a child's teacher be present for a CSE meeting at which the child's individualized education program (IEP) is prepared (34 CFR 300.344 [a][2]; 8 NYCRR 200.4 [c][3]). If the child has previously been classified as disabled, the child's special education teacher must attend the CSE meeting. As respondent well knows, a failure to have the child's teacher present at a CSE meeting affords a basis for annulling any CSE recommendation prepared at such meeting (Application of a Child with a Handicapping Condition, Appeal No. 92-24; Application of a Child with a Handicapping Condition, Appeal No. 92-9; Application of a Child with a Handicapping Condition, Appeal No. 91-39; Application of a Child with a Handicapping Condition, Appeal No. 90-22).

Although respondent concedes that the CSE meeting was procedurally flawed, it asserts that the CSE's recommendation is appropriate, and, that the hearing officer's decision is supported by substantial evidence. I disagree and find that there are deficiencies in the child's IEP. Moreover, respondent has not demonstrated that the recommended program is the least restrictive environment. 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 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 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 accurately identifies and addresses a child's needs (Application of a Child with a Handicapping Condition, Appeal No. 92-1).

The CSE recommended a change in the child's program because of the child's alleged inability to benefit from the MIS-II program. The special education site supervisor for P.S. 272 testified at the hearing that the child is capable of progressing academically, but that his progress had been limited by his distractibility. The site supervisor further testified that the child had great difficulty interacting with his peers, and reacted aggressively to perceived slights by his peers. As a result of his behavioral outbursts, the child frequently required unscheduled counseling by the site supervisor, guidance counselor or the crisis intervention teacher. The child's IEP does not, however, address the child's management needs in the classroom. The child's management needs, which are described in the IEP as severe, are to be addressed, if at all, through counseling performed outside of the classroom. However, the child's guidance counselor testified that the child was generally well behaved during counseling, but was unable to contain himself when he returned to the classroom. I also note that both the site supervisor and the guidance counselor testified that the child required a more intensive level of therapeutic intervention than could be provided through school counseling. The IEP provides that counseling shall be provided in English, but sets forth two annual counseling goals which refer to an "ESL approach". Respondent has not explained what was intended by the reference to ESL, which has been traditionally referred to as English as a second language. I find that the child's IEP is inadequate because it fails to prescribe any techniques or services which would be provided in the classroom to alleviate the child's distractibility or his inability to function with peers.

State regulation requires that a child's IEP indicate whether the child is eligible for a 12-month educational program (8 NYCRR 200.4 [c][2][v]). Although neither the child's IEP nor the notice of the CSE's recommendation sent to petitioner reveals that the CSE was recommending a 12-month program for the child, the CSE chairperson testified in response to a question by the hearing officer that the CSE had recommended a 12-month program. If so, the child's IEP was deficient.

In addition to the IEP deficiencies, the record does not afford a basis for concluding that the child's needs would be met in the proposed SIE-VII program. Although the child to adult ratio of the SIE-VII program is slightly less than that of the child's present MIS-II program, that fact alone does not establish the appropriateness of the program. Another site supervisor, who supervised the SIE-VII program at P.S. 180, testified that the children in the SIE-VII program require a highly structured and therapeutic program. The P.S. 180 site supervisor, who was not personally familiar with this child, nevertheless testified that the child appeared to be typical of other children in the SIE-VII program, which the supervisor described as a nurturing program. In her testimony, the P.S. 180 site supervisor described the SIE-VII behavior modification system, as a system involving the award of points each day for appropriate behavior. However, neither the supervisor nor any other witness attempted to link this child's specific management needs to the resources of the SIE-VII program. I must find that the proposed program was not adequately described in the record.

I must also note that when the hearing officer inquired of the site supervisor about the provision of adaptive physical education, the site supervisor testified that all of the children in the program receive such physical education, basically as a means of keeping them together and apart from other children in the school. State regulation requires that a CSE consider and describe in an IEP the extent to which a child should participate in regular education, including physical education (8 NYCRR 200.4 [c][2][iv]). The CSE chairperson did not offer any explanation for the CSE's recommendation that this child receive adaptive physical education. When challenged at the hearing by petitioner about the child's need for speech/language therapy, the CSE chairperson testified that the CSE had recommended that the child receive such therapy on a 1:1 basis because he does much "better in a one to one situation...where he could be helped to focus on the way that he had to do in the classroom itself" (transcript, page 89). I find that respondent has not demonstrated an appropriate basis for the CSE's recommendation of adaptive physical education and for one to one speech/language therapy.

In the continuum of alternative placements which respondent must make available to its disabled children (34 CFR 300.351; 8 NYCRR 200.6), the SIE-VII program with its lower child to adult ratio than that of the MIS-II program is a more restrictive setting. It was incumbent upon respondent to demonstrate why the child could not be satisfactorily educated in the less restrictive MIS-II program. I find that, on the record before me, respondent failed to meet its burden of proof. The record does not include a copy of the child's IEP for the 1991-92 school year, making it difficult to ascertain what services were provided to the child. The testimony offered by respondent's witnesses did not explain what, if any, measures or techniques including a behavioral management program, and use of an aide were used in the MIS-II classroom to address the child's distractibility and his inability to maintain satisfactory relationships with his peers. The record does reveal that the child was allowed to leave class whenever he wished to speak to the site supervisor, guidance counselor or crisis intervention teacher. Removal from the classroom is clearly an inadequate, single behavioral management technique, and respondent has not demonstrated that it employed any other technique.

Finally, I note that there is an apparent error or omission in the transcript of the hearing. As filed with the Office of State Review, there was a gap between pages 73 and 91 of the transcript. Respondent thereafter provided pages 74 through 90, which were duplicative of the testimony reported on pages 91-98 of the transcript. While the error in this transcript is merely a redundancy, respondent is reminded of its legal responsibility to maintain an accurate and complete record of its hearings.

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, in an IEP which describes appropriate short-term objectives with the techniques which would be used to address the child's needs, for the remainder of the 1992-93 school year.