93-049

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 1993-94 school year, petitioner's child be instructed in a modified instructional services-I (MIS-I) class in P.S. 72. The appeal must be dismissed.

Petitioner's child is 8 years old, and has a combination of congenital heart defects, as well as asthma. As a result of his physical condition, the child's physician has opined that the child should not climb stairs and should be in a school equipped with an elevator, as is P.S. 72. In a letter dated October 11, 1993, the child's physician opined that the child was able to participate in all school activities, except competitive sports, but should be provided with periods of rest as needed. The child has a history of delayed academic skills, notwithstanding the fact that his cognitive skills are in the low average range. The child's classification as learning disabled and other health impaired is not in dispute.

Upon his entry into kindergarten in September, 1990, the child was placed in a modified instructional services-IV (MIS-IV) special education class in P.S. 72, which is a barrier-free elementary school in Community School District 19, and was provided with the services of a health paraprofessional to assist him when necessary. The child has remained in respondent's MIS-IV program in P.S. 72. The record reveals that MIS-IV classes have a maximum of 10 children, and are taught by a teacher who is assisted by an aide. Respondent's MIS-IV program is intended for young children. Petitioner's child would have aged out, i.e., have been required to enter a different program because of his age, at the end of the 1992-93 school year. During the 1993-94 school year, the child is in the third grade.

During the 1992-93 school year, the CSE conducted its triennial re-evaluation of the child. In an update of the child's social history, petitioner expressed her belief that the MIS-IV program had benefitted the child, but expressed concern about the child's speech and requested that he have a speech/language evaluation. In a speech/language evaluation conducted in October, 1992, the child was reported to be distractible, reluctant to try new tasks, and easily frustrated when unsure of himself. The evaluator reported that the child exhibited mild delays in receptive language skills involving syntax, listening comprehension and expressive vocabulary, and severe weakness in usage. The evaluator opined that the child's distractibility could be related to his diminished level of functioning and processing difficulties. The evaluator recommended that the child receive speech/language therapy to remediate his language based deficits. The CSE accepted the therapist's recommendation, and the child received speech/language therapy during the 1992-93 school year.

In a psychological evaluation performed in October, 1992, the child was reported to have displayed a significant degree of restlessness and a high activity level. The child's verbal IQ was reported to be 89, while his performance IQ was reported to be 73. The child exhibited deficits in concentration and attention, as well as delays in visual motor skills and vocabulary. Based upon the results of projective tests administered to the child, respondent's school psychologist opined that the child exhibited significant emotional immaturity, and that play fantasy and fulfillment could account for some of the child's distractibility. The child was reported to have displayed a reasonable degree of social awareness. In an update of the psychological evaluation completed in April, 1993, the child demonstrated some improvement in his visual motor skills, which were nevertheless below average. The school psychologist, who reported that the child continued to exhibit restlessness, distractibility and a high activity level, recommended that the child be placed in a well-structured, small class for the 1993-94 school year.

An educational evaluation was performed in March, 1993, in anticipation of the child's aging out of the MIS-IV program at the end of the 1993-94 school year. The evaluator reported that the child was distractible, but to a much lesser degree than he had been in prior evaluations. The evaluator reported that the child, who was then in the second grade, demonstrated reading skills at the end of kindergarten to beginning of the first grade level and mathematics skills at the mid-first grade to beginning of the second grade level.

On May 5, 1993, the CSE recommended that for the 1993-94 school year, the child be placed in a MIS-I class located in P.S. 72, which the child had attended since kindergarten. Although the child's individualized education program (IEP) listed the child/adult ratio of the recommended class as 15:1, respondent's special education supervisor in P.S. 72 testified in the hearing that the MIS-I classes in P.S. 72 were limited to no more than 12 children for safety reasons, because there are children with physical impairments in such classes. The CSE also recommended that the child continue to receive speech/language therapy in a group of no more than five children three times per week and have the assistance of a health aide on an as needed basis.

The record reveals that the CSE which met on May 5, 1993 was not properly composed because neither the child's teacher nor a parent member of the CSE was present (Application of a Child with a Handicapping Condition, Appeal No. 92-31). On August 17, 1993, the CSE, with its required members, reconvened. However, petitioner did not attend the CSE meeting. The minutes of the meeting reveal that petitioner advised the CSE by telephone that she could not attend the meeting, and wished to proceed with an impartial hearing which she had requested and which was scheduled to be held on August 19, 1993. The CSE reaffirmed its prior recommendation that the child be placed in a MIS-I class in P.S. 72, with speech/language therapy and the assistance of an aide.

On August 19, 1993, petitioner requested that the hearing be adjourned because she had not received reports from the child's physicians which she wished to offer as evidence in the hearing. Respondent also requested an adjournment because one of its employees was not available to testify. Both parties agreed to waiver of the 45 day time limit for the hearing officer's decision (34 CFR 300.512 [a] and [c]; 8 NYCRR 200.5 [c][11]). The hearing officer granted an adjournment, upon condition that the child remain in his MIS-IV class.

The hearing reconvened on October 14, 1993, at which time petitioner acknowledged that she was aware of her right to be represented by an attorney and advised the hearing officer that she wished to proceed without an attorney. Petitioner further advised the hearing officer that she did not challenge the appropriateness of the child's classification or related services which the CSE had recommended. However, petitioner asserted at the hearing that her child should be placed in a private school, at respondent's expense, because the child required a smaller class than the recommended class and a private school would provide a safer environment for the child. In essence, petitioner asserted that because of the child's heart condition and asthma, he required an environment in which the children are closely supervised and not allowed to engage in fighting, which had allegedly occurred in P.S. 72.

In a decision dated November 3, 1993, the hearing officer held that the educational program which the CSE had recommended was appropriate for the child, and that petitioner's child would be grouped with children having similar skills and needs in the MIS-I class in which respondent proposed to place petitioner's child. In the hearing, petitioner raised concerns about the suitability of the management techniques used by the teacher of the recommended class. The hearing officer found that the teacher was competent to provide the child with special education instruction. With regard to petitioner's concern about the child's safety, the hearing officer noted that petitioner had not identified any specific incident in which her child had been hurt while in school.

Petitioner asserts that the hearing was conducted unfairly because the hearing officer met privately with a representative of respondent approximately 30 minutes before the hearing began. Petitioner does not identify the individual with whom the hearing officer allegedly met, or whether the alleged ex parte contact occurred on August 19 or October 14. Respondent generally denies petitioner's assertion that such a meeting occurred. Administrative officers who exercise judicial or quasi-judicial powers must avoid even the appearance of impropriety (Grant v. Senkowski, 146 AD 2d 948; DeCamp v. Good Samaritan Hospital, 66 AD 2d 7656). Hearing officers should refrain from communicating with any party or party's representative about any issue of fact or law, except upon notice and opportunity for all parties to participate (State Administrative Procedure Act Section 307 [2]). A hearing officer's ex parte communication with a party may afford a basis for annulling the hearing officer's decision (Signet Construction Corp. v. Goldin, 99 AD 2d 431). However, I must conclude, upon the record before me, that petitioner has not met her burden of proving her allegation of impropriety by the hearing officer.

Petitioner also asserts that the hearing officer's decision should be set aside because the hearing officer failed to develop petitioner's case by asking petitioner to testify about specific instances in which her child had been hurt while attending P.S. 72. When a party is not represented by counsel, a hearing officer has a responsibility to ensure that the party has the opportunity to present his or her case fully (Application of a Child with a Handicapping Condition, Appeal No. 92-38; Application of a Child with a Disability, Appeal No. 93-11). The record reveals that the hearing officer advised petitioner of her right to be represented by an attorney, and questioned petitioner about the nature of her disagreement with the CSE's recommendation. During the hearing, the hearing officer questioned respondent's witnesses about the bases for the opinions they expressed and required respondent's witnesses to demonstrate that the children in the proposed class would have needs and abilities similar to those of petitioner's child. At the outset of petitioner's testimony, the hearing officer asked petitioner to "... tell me anything that you want concerning any of the points that you want to make, medical, safety, etc." (Transcript, page 30). When petitioner paused during her testimony, the hearing officer suggested that petitioner review her notes and consider whether she had additional matters to raise. Upon the record before me, I find that the hearing officer discharged his obligation to afford petitioner an adequate opportunity to present her case.

Petitioner asserts that the hearing officer erred in finding that the proposed placement of the child in the MIS-I class in P.S. 72 would be appropriate for the child, because the hearing officer failed to address the issues of the size of the classroom and the number of children in the classroom. Respondent bears the burden of establishing the appropriateness of the program by its CSE (Matter of a 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. 93-42). 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]).

There is no dispute that the child has academic deficits in reading, mathematics and written expression, and that he requires primary special education instruction to address his academic deficits. In the hearing in this proceeding, respondent adduced documentary and testimonial evidence which established that the children in the class recommended by the CSE have similar academic abilities and deficits, and that their levels of social and physical development are comparable to those of petitioner's child, in accordance with the requirements of 8NYCRR 200.6(g)(2). However, the parties do not agree about the child's management needs, in relation to the number of children to be in the recommended class.

In the hearing, respondent's special education site supervisor testified that the child had made satisfactory academic progress while he was in the MIS-IV program, which has a maximum of 10 children per class and in which each teacher is assisted by a single aide (10:1+1). Although classes in respondent's MIS-I program may have as many as 15 children with no aide (15:1), such classes in P.S. 72 are limited to no more than 12 children because of the physical impairments of some of the children in such classes. The supervisor further testified that he had requested that respondent limit the size of the class recommended for petitioner's child to 10 children because the classroom was somewhat smaller than the rooms of the other MIS-I classes, and opined that his request was likely to be granted. Although MIS-I classes do not, as a matter of course, have aides assigned to assist teachers, the site supervisor testified that there were two aides assigned to the recommended class. Therefore, petitioner's son could receive the assistance of an aide on an as needed basis, as provided in his IEP, in the recommended class, which is presently no larger than the maximum size of the classes in his present program and which could have no more than 2 additional children. I find these arrangements by respondent regarding class size to be appropriate to meet the child's needs. Therefore this information should be reflected in the IEP.

In determining whether the child's management needs would be adequately met in the proposed class, I have considered the written comments of the child's teacher, who reported to the CSE that the child had made suitable progress, but was immature for his age and required a small, structured class, and the testimony of the site supervisor who alleged that the teacher had opined that the MIS-I program would be appropriate. I have also considered the evaluation reports in the record and the child's needs as described in his IEP. Upon the record before me, I find that there is no basis for concluding that the child requires a more restrictive environment, i.e., a setting with a lower child to adult ratio, than the CSE has recommended. Although petitioner briefly alludes to the size of the room in which the recommended class is held, there is no basis in the record for concluding that the classroom would be inadequate in size.

The remaining issue is whether respondent has demonstrated the appropriateness of the proposed placement in terms of the child's safety. In her petition in this appeal, petitioner asserts that her child was repeatedly assaulted by other children while traveling on a school bus, and by another child in the school cafeteria, during the 1992-93 school year. She further asserts that in April, 1993, her child was struck in the eye by another child, while waiting in the auditorium of P.S. 72 for the arrival of his school bus. Although the incidents to which petitioner refers were not disclosed or discussed during the hearing, respondent's site supervisor acknowledged in his testimony that the children in the various special education programs in P.S. 72 during the 1992-93 school year may not have been closely supervised at lunch and dismissal times. However, the supervisor testified that he had made arrangements to assure that the children would be adequately supervised while in school and while going to their school buses, during the 1993-94 school year. Petitioner's concern for the child's safety is entirely appropriate. However, there is no basis in the record for finding that the program and placement recommended by the CSE would be inappropriate, if provided with the degree of supervision which respondent's site supervisor testified would be employed. Respondent is also obligated to provide each child with a disability with suitable transportation to and from special class or programs (Section 4402[4][a] of the Education Law). I find the transportation and supervision described by respondent to be appropriate to meet the child's needs and therefore these arrangements should be reflected in the IEP. If petitioner should have concerns in the future about the suitability of the child's transportation, she should request a meeting with the CSE.

THE APPEAL IS DISMISSED.