94-021

Petitioners appeal from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that petitioners' child be instructed in mathematics in a special education class and receive supplementary instruction in reading in a resource room, during the 1993-94 school year. The appeal must be sustained.

Petitioners' child, who is 12 years old, has Down syndrome. When tested in 1990, the child's verbal IQ was reported to be 72, and her performance IQ was reported to be 75. The child's full scale IQ was reported to be 72, which is in the borderline mentally retarded range. Her adaptive behavior was described as being in the moderately low range, notwithstanding her relative strength in daily living skills. The child's graphomotor skills were reported to be delayed by approximately three years. Respondent's school psychologist reported that the child showed significant deficits in all areas of academic functioning. Although the CSE conducted a triennial evaluation of the child, early in 1993, there is no evidence that respondent conducted a psychological evaluation as part of the child's triennial evaluation (cf. 8 NYCRR 200.4 [c][4]).

The child has hypothyroidism, for which she receives medication, and has low muscle tone (hypotonia) in her upper body, which impairs her ability to sit up straight for extended periods of time. She has received occupational therapy to address deficiencies in her handwriting because of deficits in her fine motor skills. A school health status report reveals that the child has a chronically split lip. She has significant deficits in her receptive and expressive language skills, for which she has received speech/language therapy. Petitioners do not challenge the appropriateness of the child's occupational therapy or speech/language therapy.

The child has been classified as speech impaired. Although petitioners requested a hearing in this proceeding partly because of the recommendation of a CSE subcommittee that the child's classification be changed from speech impaired to mentally retarded, they agreed at the hearing that their child should be classified as mentally retarded. Their acquiescence to the proposed change of the child's classification is based upon a private psycho-educational evaluation which they obtained after they had requested the hearing. Since the child's classification is no longer in dispute, I do not reach the issue of her classification (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D.N.Y.,1987]).

After attending nursery school, the child entered a regular education kindergarten in respondent's schools. The child remained in regular education classes almost exclusively throughout elementary school, while receiving special education assistance in the form of consultant teacher services, resource room services, a 1:1 teaching assistant, counseling, speech/language therapy and occupational therapy.

While in the fourth grade during the 1992-93 school year, the child received regular education primary instruction in all subjects, but reading. The child was in a special education class for reading. She also received supplemental instruction from a special education resource room teacher in language arts and mathematics. The resource room teacher provided such instruction in the child's regular education classes for language arts and mathematics, i.e., as a "push-in" rather than "pull-out" service. The child also received small group speech/language therapy twice per week and individual occupational therapy twice per week. The child's resource room teacher testified at the hearing that the child also received counseling from a school social worker and a school psychologist, although counseling does not appear as a related service on the child's individualized education program (IEP).

At the hearing in this proceeding, the child's mathematics teacher testified that petitioners' child was in a "Level 1" class of approximately 22 children, including five children classified as learning disabled, during the 1992-93 school year. The teacher further testified that the class was instructed in the basics of the regular fourth grade mathematics curriculum, albeit at a slower pace than respondent's Level 2 and Level 3 classes. In addition to the resource room teacher who was in the mathematics class at least three days per week to assist each of the classified children, a full-time teaching assistant was also assigned to the class. The child's IEP provided for test modifications, such as the use of a calculator and extended time limits for tests. The mathematics teacher testified that during the first quarterly marking period the child was instructed in the regular curriculum, and was graded partly on the basis of the expectations for the entire class and partly on the basis of the child's IEP expectations. By the end of the first quarter, the teacher believed that some of the child's IEP goals, such as mastery of multiplication and division operations, were unrealistic in view of the child's ability. The teacher testified that the child's mother agreed that the child would sit with her classmates for the introduction of lessons, but would work separately on a 1:1 basis with the teaching assistant on the child's IEP goals. The child's IEP did not provide for the services of a teaching assistant, but the teaching assistant worked virtually exclusively with the child, according to the testimony of the mathematics teacher. Although the mathematics teacher suggested to the child's mother that the child would be more appropriately placed in a special class for mathematics, or should receive at least some pull-out resource room instruction, the child's mother did not agree. The teacher did not refer the child back to the CSE, despite misgivings about her placement.

A triennial review was conducted by a subcommittee of the CSE on March 10, 1993, at which time the CSE recommended that the child's classification be changed to mentally retarded, but that her educational program remain the same. Petitioners objected to the proposed classification change, which was apparently not implemented in the absence of a current psychological evaluation.

On June 9, 1993, a subcommittee of the CSE conducted an annual review of the child's IEP. In advance of the meeting, the child's teacher for language arts, social studies and science and her mathematics teacher each recommended that the child be placed where she could receive small group instruction and constant support. The subcommittee again recommended that the child's classification be changed to mentally retarded. The subcommittee also recommended that the child remain in the regular education program for fifth grade science and special subjects during the 1993-94 school year, but that she be placed in special education classes for mathematics, social studies, reading and language arts. It further recommended that the child continue to receive small group speech/language therapy and individual occupational therapy.

By letter to respondent dated August 13, 1993, petitioners expressed their disagreement with the proposed classification change, as well as the program changes, recommended by the CSE subcommittee. They requested that an impartial hearing be held.

On September 7, 1993, petitioners and respondent entered into a stipulation about the child's educational program during the pendency of the due process proceedings initiated by petitioners' request for a hearing. They agreed that the child, who was entering respondent's George Fischer Middle School for the fifth grade, would be instructed in reading in a special education class, and that a consultant teacher would assist the child for eight periods per week, in lieu of the resource room services which the child received in elementary school. All other instruction was to be provided as regular education. They further agreed that the child would receive speech/language therapy and occupational therapy, as the CSE subcommittee had recommended. The child's consultant teacher testified that she provided direct consultant services on a daily basis in the child's language arts class, and three times per week in her mathematics class.

The CSE initially met on September 14, 1993, and met again on September 28, 1993. At the latter meeting, the CSE recommended that the child remain classified as speech impaired, and that she be placed in regular education Level 1 classes for all subjects, except mathematics. The CSE recommended that the child be taught mathematics in a special education class. It further recommended that the child receive two and one-half hours of resource room service per week to supplement her regular education instruction in reading. The record reveals that in the Middle School all resource room services are pull-outs, and that in this instance, the recommended services would have been provided during the last period of the school day, when the child participated in music and chorus activities. The CSE also recommended that the child's speech/language therapy be increased to four times per week, and that the child receive psychological and assistive technology evaluations. It recommended that the child continue to be allowed to use a calculator and have extended time limits during testing. The CSE recommended that the child receive counseling, but failed to specify the frequency of such service (cf. 8 NYCRR 200.4 [c][2][v]). At the hearing, the CSE chairperson testified that the CSE also proposed that a consultant be hired to develop a behavior management plan for use with the child in her regular education classes and that a special education teacher assist the teachers of such classes in modifying the curriculum, during the child's pendency placement pursuant to the September 7, 1993 stipulation.

Shortly after the CSE made its recommendation, petitioners obtained a private educational evaluation of the child at the Westchester Institute for Human Development. The Institute's psychologist reported that the child was able to engage in simple conversations, although her speech articulation was frequently imprecise. Her receptive language ability was enhanced when verbal messages were given slowly in simple terms and repeated, or with visual and environmental clues. The psychologist reported that the child could consistently recognize written words at a mid-second grade level, and that her reading comprehension was at an approximately beginning third grade level. The psychologist further reported that the child easily learned how to obtain access to certain computerized reading games, and required little adult supervision while engaging in the interactive learning provided by the computerized games. The child reportedly demonstrated an ability to accurately solve single addition and subtraction problems, as well as an understanding of the concept of regrouping, but had difficulty with word problems requiring her to determine the appropriate numerical process to solve the problems. The psychologist reported that the child had difficulty with the mechanical skills of writing, such as grammar and spelling. The child was described as having more information than she could adequately express. Cognitively, the child was reported as having well developed long term memory skills and relative strength in her visual memory skills, with weaknesses in her auditory memory and auditory processing skills.

The hearing in this proceeding commenced on November 18, 1993, after having been adjourned at the request, or with the consent, of petitioners. It continued on seven additional dates, ending on April 18, 1994. The hearing officer rendered his decision on June 20, 1994. In his decision, the hearing officer noted that he had allowed evidence of events subsequent to the date when the CSE prepared the child's most recent IEP to be entered into the record over respondent's objection, because there was no statutory or regulatory prohibition against the introduction of such evidence. Respondent has not appealed from the hearing officer's evidentiary ruling, which in any event, I find to have been correct. As framed by the hearing officer, the main issue in this proceeding was " ... in what type of class will the child in question receive the education that is most appropriate to ... her needs". The hearing officer found that the child would have obtained all of the benefits of mainstreaming and inclusion by being in regular education classes for all subjects, except mathematics, under the CSE's recommendation. He further found that the child's placement in a special class for mathematics was more appropriate, while also more restrictive, than the regular class placement with supportive services sought by the petitioners. The hearing officer held that Federal law did not require respondent to educate the child in the less restrictive environment of a regular education mathematics class because the child was exposed to non-disabled peers in her other classes. With regard to petitioners' challenge to the CSE's recommendation that the child receive two and one-half hours per week of resource room services, the hearing officer noted an apparent scheduling conflict between the resource room and the music program, and found that "the District has placed educational needs (improving her reading) above her enjoyment of music.

Petitioners request that I annul the hearing officer's decision with respect to the 1993-94 school year, and direct respondent to modify the standard sixth grade curriculum and provide consultant teachers and teaching assistants to the child during the 1994-95 school year. There is no IEP for the 1994-95 school year before me as part of this appeal, and I will not attempt to prescribe a specific program for the child, which is the responsibility of the CSE to perform. The 1993-94 school year ended before this appeal was commenced. To the extent that petitioners seek a review of the child's September 28, 1993 IEP for the 1993-94 school year, the initial question is whether the matter is now moot. A case may not be moot, despite the end of the school year for which the child's IEP was written, if the conduct complained of is capable of repetition (DeVries v. Spillane, 853 F. 2d 264 [4th Cir., 1988]; Daniel R. v. El Paso Indep. School Dist., 874 F. 2d 1036 [5th Cir., 1989]). In this instance, there appears to be a significant misperception of respondent's responsibility to provide the child with an appropriate education in the least restrictive environment, as well as confusion about the concepts of mainstreaming and inclusion, which is likely to lead to similar disputes between the parties in future years. Therefore, I find that the matter is not moot.

Although the record includes evidence of the child's performance in her stipulated placement during the 1993-94 school year, the appropriateness of that placement, to which the parties agreed, is not at issue in this appeal. The central issue in this appeal is the appropriateness of the educational program recommended by the CSE on September 28, 1993 (Exhibit 13). Respondent bears the burden of establishing the appropriateness of the recommended program (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. 93-43). 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 [1982]), and that 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 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 instructional 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 primary question about this child's IEP is whether the CSE had adequate information about the child's needs to design a program which would appropriately meet her needs. State regulation requires that each child with a disability be re-evaluated at least once every three years by a physician and a school psychologist to determine the child's individual needs (8 NYCRR 200.4 [e][4]). The child's IEP of September 28, 1993 reveals that the CSE relied upon a psychological evaluation which was performed in February, 1990, which was outdated for purposes of the regulation. Although petitioners obtained a private psycho-educational evaluation in September, 1993, that evaluation was not completed or shared with the CSE, when the latter prepared the child's IEP on September 28, 1993. The IEP referred to a physical examination performed in October, 1992, which is not included in the record of this appeal, and described the child's health and vitality as good. However, the child's teachers during the 1992-93 school year, as well as a special education teacher who observed the child in class in May, 1993 expressed concern about the child's alleged avoidance behavior in class, such as putting her head down on her desk. The child's mother testified that the child's hypotonia made it difficult for her to remain seated erectly, and that the child also had been diagnosed having hypothyroidism, which made her tired. In view of a possible effect which the child's health could have upon her classroom behavior and the absence of information about the physical examination results upon which the CSE relied, I am constrained to find that the CSE did not adequately assess the child's health needs.

Although the CSE's recommendation that the child no longer be in a regular education class for mathematics was based, in part, upon teacher reports of the child's off-task and inappropriate behavior in her regular education fourth grade mathematics class, there is no evidence in the record that the CSE obtained an adequate description and analysis of such behavior, e.g., documentation of the circumstances surrounding the behavior, its frequency and duration, and the difficulty, if any, in redirecting the child. Three of the six annual goals in the child's IEP relate to the child's behavior and management needs. However, there is no indication in the IEP of the ways in which such goals are to be achieved. Indeed, the CSE appeared to have recognized that it required additional information about the child's behavioral and management needs, by recommending that a consultant be hired to develop a positive behavior management plan for the child. The needed information and plan should have been obtained by the CSE, before it prepared the child's IEP, so that it would have a basis for selecting the appropriate program and services for the child.

The CSE also recommended that the child receive an assistive technology evaluation. The private psychologist who evaluated the child testified that the child should have the assistance of a computer to address her processing and motor deficits. Such an evaluation would have provided the CSE with useful information in determining the appropriate program for the child, especially in view of the dispute between the parties about the least restrictive environment for the child.

Petitioners do not challenge the appropriateness of the child's IEP annual goals and short-term instructional objectives, which were derived from a collaborative process involving the child's mother and respondent's staff. They do challenge the CSE's choice of services to be provided to the child so that she can achieve her annual goals. State regulation requires that a CSE identify the special education and related services, and the amount of time per day that the child will receive such services (8 NYCRR 200.4 [c][2][v]). The child's IEP described her program as "special class - PT/Resource Room 2.5 hours weekly mathematics." The record reveals that, in fact, the CSE recommended that the child was to be in a special class for mathematics, presumably one class period per day, and that she was to receive 2.5 hours per week of resource room for supplementary instruction in reading. I find that the CSE's description was neither clear, nor in compliance with the regulation.

The IEP also disclosed that courses in which the child was to participate in regular education, as required by 8 NYCRR 200.4 (c)(4)(iv). However the CSE meeting minutes annexed to the IEP indicated that the CSE recommended that a special education teacher provide technical support to the child's classroom teacher, i.e., her regular education teacher, in facilitating implementation of the behavior plan, modifying the regular curriculum and providing appropriate instructional material. Although activities of that nature are within the definition of indirect consultant teacher services (8 NYCRR 200.1 [1]), the IEP did not reveal whether the child was to receive such services. The CSE minutes also indicated that the child would receive the assistance of a teaching assistant in each of her regular education classes, except for language arts, but the IEP did not specify that the child have such assistance. The omission may have been intentional, because it appears to be respondent's general practice to assign teaching assistants to Level 1 classes. However, such omission would be questionable, in view of the testimony of the child's fourth and fifth grade teachers that the child required virtually the full-time attention of the teaching assistants in their respective classrooms. If the child in fact requires the services of a teaching assistant or an aide, her IEP should specify that she receive such services.

The ambiguity in the child's IEP about the nature of the services to be provided to the child is reflective of respondent's apparent confusion about the concepts of mainstreaming and inclusion. Both concepts are premised upon the Federal and State regulatory requirements that children with disabilities be educated in the least restrictive environment (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a]). Both regulations preclude the placement of a child with a disability in a special class, or other removal from the regular educational environment, except when the nature or severity of the disability is such that the child's education cannot be satisfactorily achieved, even with the use of supplementary aids and services. Mainstreaming, although not defined in either Federal or State regulation, means that a child with a disability is placed in a regular education class, in which the child is expected to meet the requirements of the curriculum for such class, with supplementary aids and services. Inclusion is also not defined in either Federal or State regulation. It is generally understood to mean the placement of a child with a disability with the child's chronological peers in a regular education class, in which the child is expected to achieve at a level commensurate with the child's ability and IEP requirements, with the assistance of appropriate special education and related services (Application of a Child with a Disability, Appeal No. 94-17; Application of a Child with a Disability, Appeal No. 94-19).

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. v. State Bd. of Ed., supra). Instead, 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]).

Despite the many references to inclusion in the record, it is apparent from the testimony of respondent's witnesses in the hearing that the child's fourth grade mathematics program was viewed as mainstreaming, rather than inclusion. When questioned about her recommendation that the child be placed in a special education class for mathematics in the fifth grade, the child's fourth grade special education teacher acknowledged that the child had made progress towards achieving her IEP annual goals in mathematics during the 1992-93 school year. For example, the teacher acknowledged that the child had done what she was expected to do with regard to improving her ability to understand concepts of time, one of the objectives for the fourth goal on the child's 1992-93 IEP. On the fourth objective of such goal, to improve her ability to understand concepts of money, the child did improve her ability over the course of the year, according to the testimony of the special education teacher. The child's fifth annual goal was to demonstrate an improvement in mathematical computation and application. Her first objective for such goal was to use a calculator to check the accuracy of her work and make corrections with 80 percent accuracy. Although the child did not initially know how to use a calculator, she reportedly learned to use a calculator with regard to the second objective for such goal, to add and subtract full numbers with 80 percent accuracy, the special education teacher testified that the child's regrouping ability did improve. Nevertheless, in redirect testimony the teacher testified that the child was not capable of doing fourth grade mathematics, i.e., the standard for mainstreaming, rather than inclusion.

The child's fourth grade mathematics teacher also testified that the child lacked the skills to be competent in fourth grade mathematics, and opined that the child would be better served in a special education mathematics class because she could focus on her IEP goals and interact more with her peers. Even if it were true that the child might make more academic progress in a special education class, that fact would not be dispositive (Oberti v. Bd. of Ed. Borough of Clementon, supra). The private psychologist who evaluated the child testified that the child could learn the work habits, as well as the attention and behavioral skills, of the other fifth grade children, while in an inclusion setting. Although some of respondent's witnesses, including the child's fourth grade special education teacher and the teaching assistant in the child's mathematics class, testified that the child appeared to be frustrated and depressed about her inability to do the work presented in her fourth grade mathematics class, the record does not clearly reveal the extent of the curriculum modifications which were made for the child, or whether supportive counseling was provided. Although a board of education may not be required to modify the regular curriculum to the extent that a child with a disability is not required to learn any of the skills normally taught in a regular education class (Daniel R. v. El Paso Indep. School Dist., supra), I am not persuaded, on the record before me, that respondent's fifth grade Level 1 mathematics curriculum could not have been modified so as to permit the child to meaningfully participate in the activities of the class. Therefore, I find that respondent has not met its burden of proving that the child could not have benefitted from placement in a regular education fifth grade mathematics class, with the use of appropriate supplementary aids and services (Mavis v. Sobol and Bd. of Ed. South Lewis CSD, 839 F. Supp. 968 [N.D.N.Y., 1994]; Bd. of Ed. Schalmont CSD, supra; Application of a Child with a Disability, Appeal No. 93-4).

With regard to the CSE's recommendation that the child receive two and one-half hours of resource room services to supplement the child's regular education instruction in reading, I find that respondent has failed to offer an adequate explanation for the necessity of such services. Respondent should have explained how the child's reading instruction would have been modified in the regular education program to meet her needs, and how the recommended resource room services would have supplemented the instruction provided in the regular education program.

THE APPEAL IS SUSTAINED. 

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