93-029

Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that for the 1992-93 school year petitioner's child be placed in an unspecified, but out-of-district, special education class, and which directed the CSE to determine the specific location of an appropriate program for the child. The appeal must be sustained.

Petitioner's child, who is 10 years old, is classified as other health impaired (OHI). The child's classification, which is not in dispute, is based upon a medical diagnosis that he has an attention deficit hyperactivity disorder, for which he is treated. At the hearing in this proceeding, the child's private psychologist testified that an attention deficit hyperactivity disorder is a neurological, impulse control disorder, and that children with the disorder are frequently impulsive and have a low frustration tolerance. The child's disability is manifested by his inability to remain on task and his frequent oppositional behavior in school which have seriously affected his ability to achieve academically.

In the 1987-88 school year, the child attended kindergarten in respondent's Milburn Elementary School. Respondent's school psychologist testified at the hearing in this proceeding that the child had been resistant during screening for kindergarten, but that he had not exhibited any behavioral difficulty requiring psychological intervention while in kindergarten. Petitioner testified that the child had some behavioral difficulties in first and second grade. In 1990, while in third grade, the child was referred to the CSE because of his behavior, which reportedly included striking peers and adults, chewing on his clothing and running away from school.

A school psychologist attempted to evaluate the child in December, 1990, but was unable to complete the evaluation because the child fled. In a report dated January 7, 1991, the school psychologist reported that she had been unable to assess the child's ability and achievement, despite a second attempt to evaluate the child. The school psychologist also reported that projective personality tests and behavioral observations of the child did not reveal evidence of severe psychopathy, but that his behavior met the criteria for having an oppositional defiant disorder. The school psychologist opined that the child did not have an educationally disabling condition, and recommended out-of-school psychotherapy for the child. On February 12, 1991, the school psychologist was able to administer an IQ test to the child. His verbal IQ was reported to be 100, while his performance IQ was reported to be 78. However, the school psychologist opined that the test scores were minimal estimates of the child's ability because he had not put forth his best effort on the test.

A speech/language evaluation completed on February 8, 1991 reported that the child was extremely verbal and had no language disability, although he exhibited below average listening skills. In an education evaluation completed on March 7, 1991, the child was described as having grade appropriate academic achievement. His memory and language skills were reported to be good, but he was reported to have exhibited difficulty in writing. The evaluator opined that a resource room program would not assist the child.

In March, 1991, the child was also evaluated at petitioner's request by the Child Development Center of Nassau Community Medical Center. In an assessment of his cognitive skills, a psychologist reported that the child's verbal IQ was 122, his performance IQ was 102, and his full scale IQ was 114, and that the child exhibited significantly higher visually based cognitive skills. The child displayed relative weakness in performing perceptual motor and timed tasks. The evaluator reported that the selective nature of the child's participation in assigned tasks had been a critical factor in his performance. The evaluator recommended that the child and his family receive psychological counseling. A physician in the Child Development Center reported that he had been unable to complete a neurological examination because of the child's behavior, but did not observe any sign of organic brain disorder. In a psychoeducational evaluation, the child was described as being able to read at approximately the fifth grade level, while in the third grade. However, the evaluator reported that the child's attention deficit had interfered with his performance on various tasks, including passage comprehension when reading. The evaluator opined that the child might have a visual processing disorder, which had contributed to his difficulty in comprehending third grade level material which he had read, and suggested that the child could benefit from resource room assistance. The consensus of the Child Development Center staff was that the child had an oppositional defiant disorder, an attention deficit hyperactivity disorder and dyslexia. The staff recommended that the child continue to use medication to treat his attention deficit hyperactivity disorder, participate in psychological counseling with his family and receive resource room services.

On April 18, 1991, the CSE, which had initially favored recommending that the child be classified as emotionally disturbed, recommended that the child be classified as OHI, with an emotional overlay. At the hearing in this proceeding, the CSE chairperson testified that the CSE agreed to the OHI classification, after reviewing the results of the evaluation performed by the Child Development Center. The CSE also recommended that the child remain in his regular education class, while receiving one period per day of resource room services and occupational therapy once per week. The CSE further recommended that the child receive counseling on an as-needed basis. The recommended program was implemented late in the school year.

For the 1991-92 school year, the CSE recommended that the child be placed in a regular education fourth grade class and that he continue to receive resource room services, occupational therapy and counseling on an as-needed basis. At the hearing in this proceeding, the principal of the Milburn School testified that the child began to exhibit unusual behavior, such as eating inedible objects, in fourth grade. Behavior modification plans involving contracts with the child, positive reinforcement and counseling were attempted. The child's teacher also consulted with the child's private psychologist. The principal testified that the child's behavior varied during fourth grade. In October, 1991, the child refused to participate in the resource room program. An agreement was reached which allowed the child to remain in class during the period he had been scheduled to attend the resource room, provided that his behavior and work in the fourth grade class were satisfactory. The principal advised the CSE chairperson that the child continued to have some behavioral difficulty, but much less frequently than when he had attended the resource room, which had been used to allow the child to complete his regular class assignments with modifications for written assignments. In March 1992, the child voluntarily returned to the resource room program, and respondent assigned a teaching assistant to work in the child's class.

During the 1991-92 school year, changes in the child's medications for attention deficit hyperactivity disorder resulted in variations in the child's behavior. He was disciplined with in-school suspensions for leaving the school building without permission. In March, 1992, the child was briefly suspended from school for allegedly having injured another child in an incident on a playground slide. He was suspended again for biting the gloved finger of a lunchroom aide. The CSE chairperson testified that the child's behavior worsened in the Spring of 1992.

On May 15, 1992, petitioner agreed to an interim placement in which the child was to receive two hours per day of instruction at home and one hour per week of occupational therapy for the remainder of the 1991-92 school year. The CSE and respondent approved the child's interim placement. Instruction was provided to the child in the Baldwin Public Library. However, the child's instructor discontinued his services, because the child would not remain in the library to receive instruction.

For the 1992-93 school year, the CSE recommended a 30 day trial placement of the child in a regular education fifth grade class in respondent's Steele Street Elementary School. The CSE chairperson testified that the Steele Street School was selected because the school psychologist and the resource room teacher assigned to the school had previously worked with the child, and because the child could be placed with a male teacher. The chairperson further testified that the child was to receive psychological counseling and crisis intervention assistance, social work support services, and as-needed resource room services in the trial placement, which petitioner accepted.

The CSE chairperson testified that the trial placement was not successful, in that the child continued to exhibit non-compliant behavior, despite attempts by the child's teachers to accommodate his needs. To address his difficulty with writing, the child was allowed to submit one word answers in certain English and social studies assignments and to use numerical answers or responses for tests or assignments which presented lists of choices. In spelling and mathematics, he was allowed to copy fewer words and problems than his peers were required to do. The child's resource room teacher offered to write the child's responses to questions, if the child would dictate to her. The resource room teacher also made a word processor available to the child, but he declined to use that equipment. In consultation with the child's private psychologist, individualized rules of classroom behavior were prepared for the child. The principal of the Steele Street School testified that the child exhibited oppositional behavior with each of his teachers, and that the child was socially isolated from the children in his class. The child's fifth grade teacher maintained an anecdotal record of the child's behavior. The anecdotal record reveals that there were numerous instances in which the child arrived late and without his homework, refused to participate in class activities, and left the classroom without permission when requested to perform a task he disliked. The fifth grade teacher testified that the extensive amount of time and attention which he had given to the child detracted from his ability to serve the needs of the other children in the class.

On October 29, 1992, the CSE recommended that the child's placement be changed to a special education class with a child to adult ratio of 12:1+1 for all of his instructional needs, and that such placement be on a 12-month basis. The CSE further recommended that the child receive one session of individual and one session of group counseling per week and that he be provided with the services of a scribe, i.e., an aide to write for him. The CSE did not identify the school in which the recommended placement was to be made, but did indicate that such placement would be "out-of-district". Petitioner did not accept the CSE's recommendation.

The child ceased to attend school on or about November 24, 1992. Petitioner testified at the hearing that the child refused to attend school because of his dislike for the fifth grade teacher, and that she and her husband were unable to get the child to attend school. Petitioner acknowledged that there was a child neglect proceeding pending in the Nassau County Family Court because of the child's failure to attend school, and that the Court had orally directed her to send the child to school. As of the last day of the hearing in this proceeding on May 11, 1993, the child had still not returned to school.

Although petitioner did not expressly request a hearing, respondent initiated a hearing, because of petitioner's opposition to the CSE's October 29, 1992 recommendation. The hearing commenced on January 5, 1993 and concluded on May 11, 1993. During the course of the hearing, respondent asked the hearing officer to appoint a guardian ad litem for the child, pursuant to 8 NYCRR 200.1 (p) and 200.5 (c)(7). However, the hearing officer found that there was an insufficient basis in the record for making such an appointment. In a decision dated June 7, 1993, the hearing officer held that a self-contained special education class would afford the child an opportunity to learn behavior control skills while making academic progress and would be the least restrictive environment for the child. The hearing officer directed respondent to implement a behavior management plan for the child to address his classroom management needs and to develop positive peer relationships. The hearing officer found that respondent had demonstrated that none of its special education programs within the district was appropriate, and remanded the matter to the CSE to determine the location of an appropriate program.

It is well established that a board of education bears the burden of establishing the appropriateness of its recommended program or placement (Matter of Handicapped Child, 22 Ed. Dept. Rep. 47; 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]). State regulation requires that a CSE prepare a recommendation which reveals the recommended placement for the child (8 NYCRR 200.4 [c][2][viii]). In this instance, the CSE recommended a change in placement, as that term is defined in 8 NYCRR 200.1 (f), but did not identify the school in which the child would receive instruction. At the hearing in this matter, respondent's representatives alluded to a possible BOCES placement for the child however, there was no description in the record of the proposed BOCES placement. Indeed, there is no basis in the record to assume that the BOCES had space or would otherwise accept the child. Therefore, I find that the CSE failed to recommend an appropriate placement for the child for the 1992-93 school year (Application of a Child with a Handicapping Condition, Appeal No. 92-3; Application of a Child with a Handicapping Condition, Appeal No. 92-33). The CSE's failure to meet its responsibility has also delayed the ultimate resolution of the dispute between petitioner and respondent, while the child has not received any instruction.

Petitioner challenges the hearing officer's determination that a 12:1+1 special education class would meet the child's need in the least restrictive environment. Federal regulation requires:

"That special classes, separate schooling or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." (34 CFR 300.550 [b][2]); see also, Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 339, Application of a Child with a Handicapping Condition, Appeal 92-30.

The record reveals that the child's disability impacts upon his school performance through his impulsivity and his inconsistent fine motor control. As noted in the child's evaluations, the child has adequate functional skills. Indeed, the most recent educational evaluation of the child in the record reported that the child continued to perform academically at or above his current grade level. Although the child evidences a need for the specialized services of a special education teacher, the record does not support the hearing officer's holding that the child requires a self-contained special education class. The child has the academic skills to function in a regular education class. Respondent's CSE chairperson testified that none of respondent's special education classes would be appropriate, because the child's academic skills were too high. However, he does require the services of either a consultant teacher or a resource room teacher, who could provide assistance to the child's regular education teachers in developing appropriate teaching techniques to address the child's learning style and give direction to supplementary staff.

It is essential that all of respondent's staff who work with the child and the child's parents adhere to a consistent behavior management program for the child. No instructional technique will be effective, if the child is allowed to remove himself from class or school. The child clearly requires closer supervision while in school. Although the CSE chairperson testified at the hearing the CSE had decided not to recommend the assignment of a one-to-one aide for the child because the CSE feared that the child might feel pressured. Respondent asserts in its answer that it employed a teaching assistant to work with the child in fourth grade. However, the record reveals that the teaching assistant was assigned in March, 1992, and the child was placed on home instruction in May, 1992. The record does not reveal what assistance the teaching assistant provided to the child during this brief period. I find that there is an inadequate basis in the record for rejecting the use of an aide to address the child's management needs (Application of a Child with a Handicapping Condition, Appeal No. 90-9). Respondent's assertion that there is no evidence in the record that a mainstream program would meet the needs of the child if a consultant teacher, paraprofessional or the use of adaptive equipment were provided is not persuasive because there is a dearth of evidence that such services have in fact, been provided. A school district may place a child with a disability in a more restrictive placement only after supplementary aids and services have been provided and are unsuccessful.

Finally, I find that there is no basis in the record for the portion of the CSE's recommendation that the child receive a twelve-month program. State regulation requires CSEs to consider the eligibility of children for twelve-month programs and services "in accordance with their need to prevent substantial regression" (8 NYCRR 200.6 [j]). The term substantial regression is defined by State regulation to mean:

"a student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year." (8 NYCRR 200.1 [an])

Respondent offered no evidence of possible regression by the child, if he did not receive a program during the months of July and August.

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 CSE recommend a program for the child for the 1993-94 school year which is consistent with the terms of this decision.