93-037

Petitioner appeals from a decision of the impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) that the placement of petitioner's child during the 1992-93 school year be changed from a modified instructional services-I (MIS-I) class in respondent's P.S. 71 to a modified instructional services-III (MIS-III) class in respondent's P.S. 246. The appeal must be sustained.

Petitioner's child is 10 years old. During the 1992-93 school year, the child was enrolled in the fourth grade in a MIS-I special education class in P.S. 71, the school which he has attended since entering kindergarten in September, 1988. In October, 1988, petitioner referred the child to the CSE, which initially recommended that the child be multiply classified as emotionally disturbed, speech impaired and mentally retarded and that he be placed in a specialized instructional environment-VII (SIE-VII) class. Petitioner did not accept the CSE's recommendation. The CSE subsequently recommended that the child be classified as speech impaired and be placed in a modified instructional services-IV (MIS-IV) class. Petitioner accepted the recommended classification, and after the CSE agreed to provide the child with an individual crisis management aide, she consented to the child's placement in the MIS-IV class.

In April, 1991, the CSE recommended that the child's classification be changed to emotionally disturbed and that he be placed in a SIE-VII class for the 1991-92 school year. Petitioner requested that the CSE's recommendation be reviewed by an impartial hearing officer. By an interim order in August, 1991, the hearing officer remanded the matter to the CSE because there was no parent member of the CSE present when the CSE made its recommendation. The hearing officer also afforded petitioner the opportunity to obtain independent evaluations of the child because petitioner had alleged at the hearing that the child's evaluations might be tainted by alleged discrimination. Thereafter, petitioner advised the chairperson of the CSE that she did not wish to obtain independent evaluations, and asked the hearing officer to render a final decision. The CSE did not meet to make a new recommendation.

In a decision dated October 3, 1991, the hearing officer noted that the CSE had not been validly composed because of the absence of the parent member, but nevertheless held that there was sufficient evidence in the record to support the primary classification of the child as emotionally disturbed. However, the hearing officer found that the SIE-VII program recommended by the CSE was too restrictive, and directed the CSE to place the child in a MIS-II program with an individual aide for the 1991-92 school year.

Petitioner appealed from the hearing officer's decision. In Application of a Child with a Handicapping Condition, Appeal No. 91-41, dated January 21, 1992, I held that the CSE's recommendation was fatally flawed because of the invalid composition of the CSE, and annulled the hearing officer's decision. The CSE was directed to recommend an appropriate classification and placement for petitioner's child for the remainder of the 1991-92 school year, within 30 days after the date of the decision.

By agreement of the parties, the child remained classified as speech impaired, and in February, 1992, he was placed in a MIS-I class in P.S. 71, where he remained for the rest of the 1991-92 school year. Although classes in the MIS-I program may have a maximum child to adult ratio of 15:1, the child's class in P.S. 71 had only 10 children. In April, 1992, the child's teacher reported that the child was unable to begin or complete assignments on time or to remain on task for any length of time, and requested that the CSE review the child's placement. During the Spring of 1992, new evaluations were performed and existing evaluations were updated. The child's reading skills were reported to be just below the second grade level, while his mathematics skills were reported to be at or near the first grade level. The child's spelling skills were reported to be at the mid-second grade level. The child's expressive language was described as immature for his age, with many articulation problems, echolalia and perseveration, i.e. repetition of words or sounds. However, the child's speech/language therapist reported that the child had shown significant improvement in some areas of his language ability, while continuing to need assistance with his grammar and syntax. During a classroom observation conducted on June 23, 1992, the child was found to be on task only 40 percent of the time, which was significantly less than his peers.

On June 17, 1992, prior to obtaining the results of the child's educational and speech/language evaluations, the CSE recommended that the child be dually classified as speech impaired and emotionally disturbed. The CSE further recommended that the child be placed in a MIS-II class with the related services of counseling and speech/language therapy in P.S. 146 for the 1992-93 school year. Instruction in the MIS-II program is provided in classes with a child to adult ratio of 12:1+1. However, the child's individualized education program (IEP) prepared at the June 17, 1992 CSE meeting retained one annual goal relating to the child's emotional needs from his prior IEP, but did not otherwise address his alleged need for a more restrictive placement.

Petitioner sought review of the CSE's recommendation. A hearing was held on November 6, 1992. At the hearing, respondent's school psychologist testified that the child had consistently exhibited autistic-like symptoms, including stereotypical behavior, echolalia, a language deficit and a lack of relatedness, but that it would be inappropriate to classify the child as autistic. The school psychologist further testified that the child's primary educational need was to develop interpersonal relations, and that the child's IQ scores in the borderline to mildly retarded range were only a minimal estimate of his cognitive potential because of the child's lack of relatedness.

On December 7, 1992, the hearing officer issued an interim order holding that the record was not adequate to afford a basis for determining the child's appropriate classification and placement. The hearing officer remanded the matter to the CSE, with a suggestion that the CSE consider placing the child in the modified instructional services-III (MIS-III) and the specialized instructional environment-III (SIE-III) programs, as well as in a private school. The CSE was directed by the hearing officer to obtain current and complete psychological and speech/language evaluations prior to making a new recommendation for the child. The hearing officer retained jurisdiction in the event petitioner was dissatisfied with the recommendation to be made by the CSE.

The speech/language therapist who evaluated the child on January 8, 1993, reported that the child displayed an adequate attention span and was able to complete all of the tasks he was given. However, the therapist reported that the child exhibited word perseveration, tangential speech, and was occasionally heard talking to himself. The child also displayed the self-stimulating behavior of wrenching his fists. The child's speech was described as intelligible. However, his language was characterized by the use of less complex sentences than was appropriate for children of his age. The therapist reported that the child exhibited substantial deficits in his receptive and expressive language skills. Although the child's pragmatic conversational skills were described as fair to good, he reportedly had difficulty remaining on the topic and exhibited tangential speech.

On January 12, 1993, the child was observed by one school psychologist in class, where he reportedly made loud noises and walked around the classroom prior to going to lunch with the class. He was further observed to be talking to himself going to and returning from lunch. However, another school psychologist, who observed the child in class on January 19, 1993, reported that the child had been attentive to his teacher and had behaved in a manner appropriate to the situation. The latter school psychologist also reported that the child had briefly exhibited stereotypical behaviors by nodding his head in class.

In a psychological evaluation performed on January 15, 1993, the child achieved a verbal IQ score of 78, a performance IQ score of 78, and a full-scale IQ score of 76. The child's verbal IQ score was 18 points higher than he had achieved when tested in February, 1992. The child's scores on verbal subtests were reported to be more disparate than his performance subtest scores. The school psychologist, who had observed the child on Janury 19, 1993, reported that the child's scores placed him within the upper end of the borderline range of intellectual functioning, but cautioned that the IQ test scores might not accurately reflect the child's cognitive potential. The school psychologist premised her opinion upon the fact that there were significant differences in the results of portions of the IQ tests and the fact that the child appeared to know more than he could receive credit for because of the way in which he responded to questions. The school psychologist reported that the child had made progress both cognitively and behaviorally, but continued to exhibit impaired communications and social interactions. The child's thought processes were described as loose associations with tangential thinking. On a test of his visual motor integration skills, the child exhibited a delay of approximately 2 years. The school psychologist opined that the child displayed symptoms of a pervasive developmental disorder, and that the child would benefit from a small, structured therapeutic environment which fostered the development of his ego growth and provided stability. The school psychologist recommended that the child not be placed in a MIS-II program with children who act out.

On January 20, 1993, the CSE recommended that the child be classified as speech impaired/emotionally disturbed, and that he be placed in a MIS-III class. The CSE further recommended that the child receive small group counseling and individual counseling once per week, and speech/language therapy twice per week. The child's IEP drafted at that meeting included annual goals to improve the child's reciprocal social interactions and to decrease his stereotypical behavior in response to frustration and anxiety. On or about February 24, 1993, respondent notified petitioner that a MIS-III class had been found for the child in P.S. 146.

Petitioner did not accept the CSE's recommendation with regard to either the proposed classification or placement. The hearing in this matter resumed on May 28, 1993. In a decision dated June 25, 1993, the hearing officer held that respondent had satisfied its burden of proving the appropriateness of the child's classification as speech impaired, but that there was insufficient evidence to support the child's classification as emotionally disturbed. The hearing officer held that the proposed MIS-III class in P.S. 146 was appropriate for the child, and declined to find that the class was inappropriate solely because it was located at a greater distance from the child's home than his present class in P.S. 71.

Respondent asserts that the appeal is time-barred because the petition was served in excess of 40 days after the date of the hearing officer's decision. The hearing officer's decision is dated June 25, 1993. The petition was served on August 11, 1993. However, State regulation provides that a petition for review of a hearing officer's decision must be served within 40 days after receipt of the decision (8 NYCRR 279.2 [b]). Respondent has not offered any proof of the date when petitioner received the hearing officer's decision. I find that respondent has failed to meet its burden of proving its affirmative defense (Application of a Child with a Disability, Appeal No. 93-23).

Neither party disputes the hearing officer's conclusion that the child should be classified solely as speech impaired. Therefore, the issue to be determined is the appropriateness of the program which the CSE has recommended. 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]).

In this appeal, the central issue is whether the recommended program is the least restrictive environment for the child. Federal regulation provides that each school district must offer a continuum of alternative placements (34 CFR 300.551 [a]). Respondent's MIS-III program, with a child to adult ratio of 12:1+1, is a more restrictive placement than the MIS-I program (15:1) in which the child is presently placed. State regulation provides that placement in a special class with a teacher and an aide is appropriate only for children whose management needs interfere with the instructional process to the extent that an additional adult is needed within the classroom to assist in instruction (8 NYCRR 200.6 [g][4][i]). At the hearing in this proceeding, respondent's school psychologist testified that placement in a MIS-III class would allow the child to receive more individual attention from an adult and provide less distraction than his present MIS-I class. During her testimony, the school psychologist emphasized that the child needs to be refocused occasionally, and that an additional adult in his class could perform this service. However, I note that the child's IEP does not address the issue of the child's need to be refocused. Although the IEP reports that the child works well on a 1:1 basis, it does not reveal a basis for changing the child's placement to a more restrictive placement. Nor has respondent presented evidence that the child's IEP goals and objectives could not be achieved in a MIS-I class.

A less restrictive placement would not be appropriate if the child could not benefit from instruction in such placement. The parties sharply differ on the effectiveness of the child's present MIS-I program. Petitioner asserts that the child has made significant gains, while respondent asserts that the child has made progress only in spelling. Respondent has not documented the child's alleged lack of progress. Indeed, its school psychologist stated in her evaluation report that the child had made progress academically and behaviorally. Although the record contains little information about the child's academic achievement since entering the MIS-I program in February, 1992, there are indications in the record that the program has been beneficial to him. The child's verbal IQ score increased by 18 points, in a little less than 1 year. The testimony and documentary evidence in the November, 1992 hearing focused upon the child's behavioral difficulties. However, he is now described in the proposed IEP as polite, obedient and motivated to do well academically. When observed in his class in June, 1992, the child was reportedly on-task only 40 percent of the time. However, in January, 1993, the school psychologist reported that the child was attentive in class and that his behavior did not cause him to stand out from other children. While a second observation also in January, 1993 reported that the child exhibited behavior more like that described in earlier reports, I note that the child was observed shortly before, and on the way to, lunch. There is nothing else in the record to suggest that the behavior reported by the school psychologist was not representative of the child's behavior in class.

In addition to having a lower child to adult ratio, the MIS-III class in P.S. 146 which the CSE has recommended is also more restrictive than the child's present program because it is not the school the child would otherwise attend, i.e., his neighborhood school. The proximity of a child's program to the child's residence is one factor to be considered in determining whether the child has been placed in the least restrictive environment (34 CFR 300.552 [a][3]; 8 NYCRR 200.1 [x][3]; Barnett v. Fairfax County School Board, 927 F. 2d 146 [4th Cir., 1991]). In this instance, it is more than a matter of the distance between home and school. Petitioner asserts that the child has begun to interact with others in his local community, notwithstanding his unusual speaking pattern, and will be harmed if he is forced to attend school elsewhere. However I do not need to determine whether the child's ability to adjust to a new school affords a basis for holding that the new school is inappropriate, because I find that the respondent has failed to present evidence justifying the child's transfer from his neighborhood school.

I will not order the CSE to revise the child's IEP for the 1992-93 school year, which has ended. However, I will direct the CSE to prepare an IEP for the 1993-94 school year which is consistent with the tenor of this decision.

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, the CSE shall recommend an appropriate program for the child during the 1993-94 school year in accordance with the tenor of this decision.