93-035

Petitioners appeal from the decision of an impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) that for the 1992-93 school year the placement of petitioners' child be changed from a regular education class with resource room services to a self-contained special education class. The appeal must be sustained.

Petitioners' child, who is 10 years old, contracted encephalitis and had seizures when he was 2 1/2 years old. The child reportedly regressed to the behavioral level of a six-month old child as a result of his illness. The child was enrolled in a preschool program prior to his entry into a regular education kindergarten in respondent's Port Leydon Elementary School in September, 1988. In February, 1989, the child had tubes inserted in his ears to correct a substantial loss of hearing. Although not identified as a child with a disability, the child received speech/language therapy during the 1988-89 school year. The child was retained in kindergarten for the 1989-90 school year.

In January, 1990, the child was referred by his teacher to the school psychologist for an evaluation, because the child reportedly had listening and perception skill difficulty and difficulty with eye-hand coordination. The school psychologist did not evaluate the child until March, 1990, at which time the child achieved a verbal IQ score of 58, a performance IQ score of 58, and a full scale IQ score of 54, which is in the mildly retarded range. The school psychologist found that the child demonstrated relative strength in verbal fluency, spatial reasoning, and socialization skills. The results of a test of the child's adaptive behavior were consistent with the child's cognitive ability. The child's score on a test of his visual motor integration skills was three standard deviations below the norm. The school psychologist opined that the child's performance was consistent with that of other children who have been found to have neurological difficulties. The school psychologist recommended that the child be referred to the CSE for classification as a mentally retarded child and placement in a special class.

Following the evaluation, the school psychologist met with petitioners who did not accept the school psychologist's findings or recommendations. However, they agreed to have the child evaluated by a school psychologist employed by another school district. The second evaluation was completed in April, 1990. On a different test of his cognitive ability than was used in the March evaluation, the child achieved a composite score of 57. The second school psychologist reported that the child was functioning below his chronological age in most areas, and opined that the inconsistencies in the child's performance were evidence of a neurological disability, rather than a lack of innate ability to learn. Noting that the child had made remarkable progress in the four years since he had contracted encephalitis, the second school psychologist stated that it was not possible to predict how much more achievement the child would make. The second school psychologist recommended that the child be neurologically evaluated to ascertain if he had specific areas of deficit and to determine what effect the deficits would have upon his ability to learn. The second school psychologist also opined that the best placement for the child would be in a self-contained class with a low child to teacher ratio.

On June 26, 1990, both school psychologists, the child's teacher, and the principal met with petitioners to discuss the results of the two evaluations. It was agreed that the child would be referred to the CSE for identification as an other health impaired child and a recommendation that the child be placed in a regular education first grade class for the 1990-91 school year. Shortly after the June meeting, the child was referred to the CSE.

On August 21, 1990, the CSE recommended that the child be classified as other health impaired, and that he receive three hours per week of resource room services and two hours per week of speech/language therapy to assist him in his instructional program in a regular education first grade class. The child's first grade teacher during the 1990-91 school year reported that the child was unable to participate in any reading or math group activities after the first month of school. The teacher further reported that the child had consistently not attended to, i.e., paid attention to, stories read to the children in class but instead engaged in disruptive behavior. The child reportedly was unable to interact with other children in a satisfactory manner.

On June 4, 1991, the CSE recommended that the child remain in the first grade for the 1991-92 school year and continue to receive the same amount of resource room services and speech/language therapy. The CSE further recommended that the child receive a psychoneurological evaluation by a physician, as well as a new psychological evaluation, and be observed in his classroom. The child's individualized education program (IEP) which was prepared at the CSE meeting disclosed that the child had deficits of approximately three years in his receptive language skills and four years in his expressive language skills. He was reported to be unable to use written language to express ideas, and his reading skills were described as being at the readiness level. The child's mathematical skills were reported to be below the beginning first grade level.

In December, 1991, an independent neuropsychological evaluation was completed by a licensed psychologist who reported that the child achieved a verbal IQ score of 52, a performance IQ score of 74, and a full scale IQ score of 61. The psychologist reported that the child had experienced some difficulty in comprehending oral instruction, and exhibited a marked difference in his sequential and simultaneous processing abilities. The child's achievement test scores were generally in the borderline range and slightly below what would be expected for a child of his age, but higher than expected for a child with his IQ scores. The psychologist opined that the results were consistent with the possibility that the child had a neurologically based developmental information processing deficit. Although the psychologist opined that the child would benefit from placement in a class in which he could receive 1:1 instruction and in which external distractions were limited, he further opined that the necessary cognitive remediation of the child could be done in a regular education class with resource room services and speech/language therapy and suggested that the child be mainstreamed as long as he continued to improve academically.

The CSE met again with petitioners in March, 1992, to discuss the results of the independent evaluation. Although petitioners' representative at that meeting requested that the child be provided with the services of a consultant teacher, the CSE declined to recommend that he receive such services. However, the CSE did recommend that the child's first grade, resource room, reading, and speech/language teachers meet for 30 minutes each week to consult about the child.

In preparation for the child's annual review, the child's regular education and resource room teachers reported to the CSE that the child's sight-word vocabulary was very limited, but had increased. They also reported that the child read at the preprimer level by naming words, but could not apply the meaning of the words. In mathematics, the child was reported to be using manipulatives and a number line to perform mathematical tasks, but that he had a limited knowledge of mathematical concepts. The teachers further reported that the child's oral and written language skills were very limited. They also reported that the child's low level of academic performance had affected his social and behavioral effectiveness in the classroom. They recommended that the child be placed in a special education class with mainstreaming in special subjects. The child's speech/language teacher reported that the child's expressive language skills were equivalent to those of a four and a half to a five year old child while his receptive language skills were equivalent to those of a five to six year old child.

At a meeting of the CSE held on May 13, 1992, the child's first grade teacher advised the CSE that the child had made academic progress during the 1991-92 school year, but that the child was frustrated by his lack of academic success and was regressing socially. The CSE recommended that for the 1992-93 school year the child be placed in a special education class of the BOCES of Jefferson and Lewis Counties, in a location which the record does not disclose, and that he be mainstreamed for art, music, physical education, lunch, and "other courses at teacher discretion" (cf. 8 NYCRR 200.4 [c][2][iv]). The CSE further recommended that the child continue to receive two hours of speech/language therapy per week and that he receive an occupational therapy evaluation. It must be noted that the minutes of the CSE meeting, the child's IEP and the notice to petitioners of the CSE's recommendation refer to the recommended program as an "Option 1" or "Option 1 15.1.1." Although State regulations do not use the term "Option," it is frequently used by special educators to refer to the special education classes, the sizes of which are set forth in 8 NYCRR 200.6 (g)(4). The term "Option 1" usually refers to the least restrictive class, i.e., a class of no more than 15 children and in which there is no aide (Application of a Child with a Handicapping Condition, Appeal No. 92-13). The next least restrictive class is a class of no more than 12 children and in which an aide assists the teacher (8 NYCRR 200.6 [g][4][i]). It is not clear from the record whether the CSE intended that the child should be in a special education class without an aide, i.e., a 15:1 class or a special education class with an aide, i.e., a 12:1+1 class.

Petitioners did not accept the CSE's recommendation. The hearing in this proceeding did not commence until October 8, 1992, reportedly because of scheduling delays requested by petitioners' attorney. The hearing continued on November 6, 1992, and was concluded on December 18, 1992. The parties were afforded the opportunity to submit post-hearing memoranda of law in February, 1993. The hearing officer rendered his decision on June 18, 1993. In his decision, the hearing officer expressed concern at the CSE's failure in 1990 to promptly evaluate the child and make its recommendation, notwithstanding respondent's assertion that the child's referral to the school psychologist in January, 1990 was not a formal referral of the child to the CSE. The hearing officer also questioned whether the child could have received more appropriate services sooner, and whether respondent's staff had adequately explained to petitioners the various program options which were available during the child's first few years in school. While cautioning the CSE to be more semantically precise in its notices to parents, the hearing officer held that the CSE's procedural failures had not denied the child a free appropriate public education.

With regard to the CSE's recommendation for the 1992-93 school year, the hearing officer found that the child's IEP annual goals were ambiguous, and directed the CSE to prepare appropriate goals in the future. The hearing officer further found that the record demonstrated that the child had not progressed from grade to grade at a rate consistent with that of his peers and that his continued placement in a regular education class would not allow him to attain his IEP goals. With regard to the issue of placement in the least restrictive environment, the hearing officer found that there was no basis in the child's removal from regular education as a result of his behavior, because respondent had not made an effort to establish a consistent behavior modification program for the child. However, the hearing officer further found that the child's academic progress was so insufficient, even with the use of supplementary aids and services, to warrant his removal from regular education and placement in a special education class for primary instruction. The hearing officer concluded that the child could be placed in a class having a child to adult ratio of 12:1, rather than 15:1 which he believed that the CSE had recommended. His conclusion was apparently based upon a former provision of the Regulations of the Commissioner of Education establishing such a class size limit, which was amended to permit special education classes with a child to adult ratio of 15:1 (8 NYCRR 200.6 [g][4]). However, as noted above, it is not possible to ascertain what the CSE may have intended. The hearing officer further held that the child could be placed in the BOCES class, upon finding that a profile of the children in such class demonstrated that the child would be appropriately grouped with those children (8 NYCRR 200.6 [a][3]).

Petitioners assert that respondent violated the procedural rights accorded by the Individuals with Disabilities Education Act, 20 USC 1400 et seq., with respect to the CSE's recommendation for the child's program during the 1992-93 school year and with respect to its actions and recommendations in prior school years. Respondent asserts that the issues of the content of, and procedures used to develop, the child's IEP's were improperly raised by petitioners in their post-hearing memorandum of law and should not be considered in this appeal. Respondent further asserts that it was not put on notice either by petitioners' opening statement at the hearing or during the hearing that these issues would be raised. I find that respondent's assertion is without merit. The record reveals that respondent's initial witness, who was a member of the CSE, was cross-examined about the alleged non-referral of the child to the CSE until June, 1990. The witness was also cross-examined about the lack of specificity of the IEP goals for the 1991-92 school year. I find that respondent was clearly on notice about the issues which petitioners have raised in this appeal. Nevertheless, I further find that a determination about the specificity of the goals of a prior IEP would not substantially advance the resolution of the parties present disagreement, which concerns the child's IEP for the 1992-93 school year. I shall consider petitioners' assertion about an alleged delay in referring the child to the CSE, because a significant delay in evaluating a child subsequently found to be in need of special education services would afford a basis for holding that the child had been denied a free appropriate public education (W.G. v. Target Range Sch. Dist. 23, 960 F.2d 1479 [9th Cir., 1992]).

Although the 1992-93 school year for which the disputed CSE recommendation was made is now over, I am not persuaded that the matter is moot (Application of a Child with a Disability, Appeal No. 93-20). There is a continuing disagreement between the parties about whether the child should receive his primary instruction in a regular education class or in a special education class. I need not, and do not, reach the issue of the appropriateness of the specific class recommended by the CSE for the child during the 1992-93 school year, but I will address the other issues raised by the parties concerning the CSE's recommendation for the 1992-93 school year.

Petitioners assert that respondent violated State Regulation by not affirmatively locating and identifying the child as disabled. State regulation (8 NYCRR 200.2 [a]) requires each board of education to locate and identify all children with disabilities who reside in the school district. The regulation is intended to ensure that boards of education will be prepared to provide appropriate services to children with disabilities when they become eligible to receive those services. However, the record does not disclose what, if any, action respondent took prior to the child's enrollment in respondent's schools, and provides little useful information about the child's initial enrollment in kindergarten during the 1988-89 school year.

Petitioners further assert that respondent failed to ensure that the child was promptly evaluated upon his referral to the CSE by petitioners and/or his teacher in the Fall of 1989. A CSE's responsibility to perform an evaluation of, and make recommendation for, a child begins with a written referral of the child to the CSE by the child's parent, a professional staff member of the school district, or certain other individuals (8 NYCRR 200.4 [a]). The CSE must make its recommendation for the provision of services within 40 days after the CSE's receipt of a referral or 30 days after a child's parent consents to the child's evaluation, whichever period ends earlier (8 NYCRR 200.4 [c]).

Petitioners' assertion that either they or the child's kindergarten teacher referred the child to the CSE in the Fall of 1989 rests upon the testimony of the school psychologist, who testified that some of the forms which he received in January, 1990 were completed by petitioners and/or the teacher in the Fall of 1989. However, there is no evidence that the forms were submitted to any representative of the CSE prior to January, 1990. The school psychologist, who was also the CSE chairperson in January, 1990, testified at the hearing in this proceeding that the child was not formally referred to the CSE at that time, but was merely referred for a psychological evaluation. The school psychologist further testified that, notwithstanding his recommendation in March, 1990 that the child be referred to the CSE, the child was not formally referred until after an agreement was reached with petitioners in June, 1990 that the CSE would recommend that the child be classified as other health impaired and that he remain in a regular education class. Although the CSE's legal obligation to perform its responsibilities begins with the written referral of a child, I am concerned by respondent's reliance upon a purported distinction between a referral to its school psychologist and to the CSE as its justification for not evaluating the child more promptly (Application of a Child with a Disability, Appeal No. 93-33). At the hearing, the child's mother testified that she agreed to have the child evaluated, at the suggestion of the child's teacher, in order to obtain the services of a classroom aide for the child. It is the responsibility of the CSE to determine whether a child requires the services of an aide. I find that the chairperson's delay of a referral to the CSE until agreement could be reached upon what the CSE would recommend to be inexplicable.

Petitioners also assert that respondent failed to provide them with adequate notice of the CSE's recommendation. There are two slightly different versions of a notice of recommendation in the record. The first identifies the recommended placement as "OPTION 1 15.1.1", while the second identifies the recommended placement as " OPTION 1". At least one version of the notice of recommendation was sent to petitioners, together with a copy of the minutes of the May 13, 1992 CSE meeting and a copy of the child's proposed IEP for the 1992-93 school year. The IEP identifies the child's proposed placement by referring to the name of a teacher, but does not otherwise reveal the location of the class. At the hearing, the child's mother testified that she believed that the BOCES class would be in another school, while respondent's attorney asserted in his opening statement that the BOCES class was within the school district. However, nothing in the record before me discloses the specific location of the proposed BOCES class. I find that the use of the contradictory "Option 1, 15.1.1" in the notice also lacks the requisite specificity. Petitioners raise another objection to the notice. Whenever a school district proposes to change, or refuses to change, a child's placement, Federal and State regulations require that the written notice provided to parents must include a description of any options considered by the school district and the reasons why those options were rejected (34 CFR 300.505 [a][2]; 8 NYCRR 200.5 [a][4]). I find that the notice of the CSE's recommendation, together with the other information sent to the petitioners, did not comply with the regulatory requirement (Application of a Child with a Disability, Appeal No. 93-15).

The central issue in this appeal is the appropriateness of the program recommended by the CSE for the 1992-93 school year. Respondent bears the burden of establishing the appropriateness of the program recommended by the CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). 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 CSDv. 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 reflects the results of the evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12). The evaluations of this child reveal that he has specific special education needs within the areas of the development of functional receptive and expressive language, the development of appropriate classroom work habits and social skills, the development of his basic academic skills, and the development of his daily living skills. The child's IEP contains a minimal description of his needs based upon test results, but does not address his behavioral needs or reveal the basis for some of the short-term objectives set forth in the IEP. The annual goals in an IEP must be sufficiently specific to provide direction to the child's teacher concerning the CSE's expectation, and must address the child's individual needs (Application of a Child with a Handicapping Condition, Appeal No. 92-13).

At the hearing, respondent offered a portion of the child's IEP which did not include any annual goals or objectives (Exhibit 4). The record also includes as a separate exhibit (Exhibit 6) three pages of annual goals which purportedly relate to the child's IEP for the 1992-93 school year. The first page of the goals, which relates to academic skills implies that the goals are to be achieved in a resource room program, notwithstanding the fact that the CSE had recommended that the child be enrolled in a special class. Assuming that Exhibit 6 is in fact a list of the annual goals which the CSE prepared for the 1992-93 school year, I find that annual goals such as "improve receptive/expressive language skills" and "improve speech skills" used in the child's IEP are too vague to be of value (Application of a Child with a Disability, Appeal No. 93-24). The short-term objectives set forth for those annual goals do not address the child's language needs in the classroom. Although the child's teachers have identified other concerns, such as the child's disorientation in finding his way to and from class, or recognizing his own space and that of others, the child's IEP does not address these needs.

Federal regulation provides that a child's IEP must include appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether the child's short-term instructional objectives are being achieved (34 CFR 300.346 [a][5]). Exhibit 6 provides that the child's achievement of the short-term objectives related to his academic goals is to be assessed merely by "teacher observation". I find that respondent has not provided objective evaluation criteria as required by the Federal regulation.

The defects in the child's IEP compel me to conclude that respondent has failed to meet its burden of proving the appropriateness of the CSE's recommendation (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child with a Disability, Appeal No. 93-1). In preparing a new IEP for the child for use during the 1993-94 school year, the CSE must use more care to address the child's academic and behavioral needs. It must also consider the least restrictive placement for the child.

Federal regulation provides 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])

In determining whether a child can be educated in regular classes, 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 or her non-disabled peers (Daniel R.R. v. State Bd. of Ed., 874 F. 2d 1036 [5th Cir., 1989], cert. denied, 484 U.S. 847). Rather, the relevant question is whether the child can achieve the goals of his or her IEP within a regular education program, with the assistance of supplementary aids and services (Application of a Child with a Handicapping Condition, Appeal No. 90-17; Application of the Bd. of Ed. of Schalmont CSD, Appeal No. 90-19; Application of a Child with a Handicapping Condition, Appeal No. 92-15; Application of a Child with a Handicapping Condition, Appeal No. 92-29; Application of a Child with a Disability, Appeal No. 93-4). The CSE must also consider the unique benefits, academic and otherwise, which the child may receive by remaining in regular classes, e.g. language and role modeling with non-disabled peers(Greer v. Rome City Sch. Dist., 950 F. 2d 688 [11th Cir., 1991]). The fact that a child with disabilities might make greater academic progress in a segregated, special education class may not warrant excluding the child from a regular education environment (Oberti v. Bd. of Ed. Borough of Clementon Sch. Dist., 995 F. 2d 1204 [3rd Cir., 1993]).

Although in this instance respondent asserts that the child would not benefit by remaining in regular education, the record reveals that the child did make academic progress during the 1991-92 school year. His first grade teacher, his resource room teacher and his speech/language teacher each acknowledged during their testimony that the child had progressed. In reading, the child progressed from the first of three preprimer levels through the third preprimer level. In mathematics, the child progressed through the first grade curriculum, albeit with some modifications.

A board of education must also make an effort to modify the regular education program, including its curriculum, to accommodate a child with a disability (Oberti. v. Bd. of Ed. Borough of Clementon Sch. Dist., supra; 34 CFR Part 300, Appendix C, Question 48). Although respondent asserts that the child has not been successful despite curriculum modifications, I note that the child's first grade teacher did not identify any curriculum modifications other than the use of manipulatives and a number line in mathematics. The resource room teacher, who would be an appropriate person to assist the child's first grade teacher in making curriculum modifications, testified that she did not believe that the child's curriculum had been modified. Respondent has also not established why it should not have provided the child with an aide.

In determining the least restrictive environment for a child, a CSE must also consider the possible negative effects of the inclusion of the child upon the education of the other children in the class (Daniel R.R. v. State Bd. of Ed. supra; Oberti v. Bd. of Ed. Borough of Clementon Sch. Dist., supra). I find that there is no basis in this record for excluding the child from regular education classes because of his behavior, especially in view of respondent's failure to provide a behavior modification plan prior to the CSE's recommendation for the 1992-93 school year. Even if the child's IEP had been appropriate, I would nevertheless be constrained to find that respondent had failed to demonstrate that the recommended placement was the least restrictive environment for the child.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is annulled.