94-023

Petitioners appeal from the decision of an impartial hearing officer which held that a recommendation by respondent's committee on special education (CSE) for the educational placement and program of petitioners' child during the 1992-93 school year was procedurally flawed, and remanded the matter to the CSE with the direction to consider certain issues. Petitioners, who do not challenge the hearing officer's findings with respect to the CSE's recommendation, assert that the hearing officer erred by opining that there was little evidence in the record of the child's ability to learn or interact with non-disabled peers and thereby foreclosing the CSE from considering all available placement options for the child. They seek an order requiring respondent to place the child in regular education classes with certain supportive services. The appeal must be dismissed.

Petitioners's child, who is 16 years old, reportedly had a normal rate of development as an infant. In June, 1979, when the child was approximately fifteen months old, she developed encephalopathy, a degenerative disease of the brain, after having been vaccinated against measles, mumps and rubella. The child had seizures, but is reportedly now seizure-free. In a neurological examination conducted in 1988, the child was reported to have displayed persistent signs of encephalopathy, including autistic behavior patterns, hyper-reflexia, and mild spasticity and dysfunction of her lower left extremity. Although the child spoke before her illness, she has been essentially non-verbal since 1979. The child's classification as autistic is not disputed in this proceeding.

Shortly after the child's medical condition was diagnosed by a physician, petitioners obtained assistance with developing the child's motor skills from the Syracuse Developmental Center of the State Office of Mental Retardation and Developmental Disabilities. The child was enrolled in a preschool program, and thereafter in a kindergarten, of the campus school of the State University of New York at Cortland. Petitioners also sought assistance from the Institute for Achievement of Human Potential in Philadelphia, Pennsylvania, as a result of which they began a program of home instruction and training for the child, based upon patterning. The child continued to be instructed by her parents at home, until the 1989-90 school year. She reportedly attended a regular education fifth grade art class in respondent's intermediate school during the 1988-89 school year.

In May, 1989, a psychologist employed by an affiliate of the Syracuse Developmental Center attempted to perform a psychological assessment of the child, who was eleven years old. The psychologist reported that the child's conduct (off-task behavior and minimal eye contacts) and weak communicative skills precluded accurate testing of the child with formal test instruments. Although the child only completed two subtests in an assessment of her cognitive skills, the psychologist determined that the child's intellectual abilities exceeded what she had demonstrated in the tests. However, he also opined that the child was moderately retarded. In an analysis of the child's developmental milestones, the psychologist found that the child exhibited relative strength in gross motor skills, and some fine motor skills. He reported that the child required almost complete assistance in grooming tasks, but could go to the bathroom independently. The psychologist reported that the child's communications skills were especially weak, in that she did not appear to process verbal instructions. He also reported that the child exhibited maladaptive behavior, including withdrawal, poor attention span and eye contact, self-injury and stereotypical movements such as rocking, hand flapping and the twirling of objects between her fingers. The psychologist recommended that the child receive instruction in a highly structured and consistent environment, with an emphasis on developing language and socialization skills.

The psychologist's report was used to support respondent's placement of the child on a twelve-month basis in the Children's Unit of the State University of New York at Binghamton (see Section 4401 [2][1] of the Education Law). At the time of her entry into the Children's Unit in the Summer of 1989, the child was reported to randomly vocalize in a loud voice with no observable intent. She was described as playing with sounds in a self-stimulatory manner by changing the rhythm and tone, and being unable to consistently respond to prompts for eye contact or to respond correctly to requests to point to objects or follow simple commands. The child reportedly used physical contact to gain the attention of the Children's Unit staff, and was unresponsive to attempts to use sign language or a communication board. According to a report by the Children's Unit, the child often attempted to avoid instruction by leaving her chair or removing instructional materials. She was described as unable to play appropriately with simple toys, either alone or in the company of other children. The Children's Unit reported that development of the child's skills was impaired by her severe level of maladaptive behavior, including aggression (pinching, biting, and scratching), self-injurious activities (head banging and finger picking) and disruptive conduct (inappropriate vocalizations, tantrums and escape actions). The use of verbal instructions with modeling was described as the most effective instructional method for the child.

During the 1989-90 school year, the child was instructed at the Children's Unit in a program having a child to adult ratio of 2:1. At the end of the school year, the child was reported to have attained goals involving her ability to remain seated in a 1:1 setting, and in a small group of children. She also had some success establishing eye contact with others, following individualized instructions and matching objects and colors. However, the child was reportedly unable to imitate either a vocal or motor model, thereby precluding communication training. Because of her continuing resistance to instruction, the focus of the child's instructional program was split between re-establishing appropriate work behaviors and presenting lessons. The child's aggressive and self-injurious behavior was reported to have decreased significantly. Her adaptive social behavior was reported to be at the age equivalence of thirteen months.

The child continued in the program of the Children's Unit for the 1990-91 school year. In March, 1991, the Children's Unit recommended that the child be placed in a self-contained special education class with a 6:1+1 child to adult ratio for the 1991-92 school year. In its report at the end of the 1990-91 school year, the Children's Unit reported that the child's improvement had been greatest in the area of motor skills, and that she had demonstrated some growth in the areas of concept formation, art, music and life relevant skills. However, the child continued to experience difficulty with language, and with self-help, social and school related skills. She reportedly was unable to make progress on language goals involving the imitation of vowel and consonant sounds or touching body parts on request. Her self-help skills, such as toileting, feeding and dressing, were described as poor, while she was unable to attain social skill goals of greeting people, cooperating in simple games and imitating adult and child behavior with toys. The child continued to exhibit a high level of non-compliant and self-stimulatory behaviors, and an inability to work independently or to learn by observation of her peers. At the time of the report, the child was thirteen years old.

During the 1990-91 school year, petitioners began to use the technique of facilitated communication with the child. For purposes of this decision, I have taken administrative notice of a definition of the term facilitated communication submitted by petitioners in a prior appeal in this proceeding, in which it was defined as:

" . . . a means by which many people with major speech difficulties type or point at letters on an alphabet board or typing device to convey their thoughts. It involves a facilitator who provides physical support to help stabilize the arm, to isolate the index finger if necessary, to pull back the arm after each selection, to remind the individual to maintain focus, and to offer emotional support and encouragement ... " (Biklen, "Autism Orthodoxy versus Free Speech: A Reply to Cummins and Prior," Harvard Educational Review, Vol. 62, No. 2, p. 242).

In its June, 1991 report, the Children's Unit noted that petitioners had asserted that the child could read at an extremely rapid pace and that the child's reading comprehension was at upper elementary school grade level, when facilitated communication was employed. However, the Children's Unit reported that it was unable to verify the child's progress as described by petitioners. Although the child had been asked to respond to simple interpersonal questions by typing an answer on a computer in the Children's Unit, her responses were reported to have been fairly random key strokes which could not be interpreted. The Children's Unit also expressed concern about the child's ability to use the information which she had reportedly acquired in a functional context. On the Slosson Intelligence Test, the child achieved an age equivalent score of fourteen and one-half months, which was consistent with the child's performance in the Children's Unit.

At the child's annual CSE review on May 2, 1991, petitioners requested that they be allowed to instruct the child at home during the 1991-92 school year so that they could increase the child's sensory stimulation. They also requested that the child participate in one or two regular education classes with her chronological peers in order to improve the child's self-esteem. In a letter to respondent's superintendent of schools, petitioners asked respondent to provide a keyboard device for the child's use with facilitated communication and the services of a teacher's aide for two hours per day to assist petitioners in instructing the child at home.

The CSE deferred making its recommendation until June 5, 1991. In the interim, the child was observed in the Children's Unit by one of respondent's school psychologists, who reported that the child made frequent vocal utterances, and engaged in the self-stimulating activities of rocking in her chair and shaking her head. The child reportedly appeared to be amused by her oppositional behavior, but performed certain fine motor tasks with no apparent interest. The child's teacher advised the observer that the behavior which she had observed was consistent with the child's usual behavior.

On June 5, 1991, the CSE recommended that the child be placed on a twelve-month basis in a self-contained special education class operated by the Board of Cooperative Educational Services of Onondaga, Cortland and Madison Counties (BOCES) and located in the Onondaga Central School District High School. The class recommended for the child had a 12:1+3 child to adult ratio. The CSE also recommended that the child receive daily speech/language therapy, and physical therapy and occupational therapy consultant services once per month. In addition, the CSE recommended that the child receive an augmentative communication evaluation.

By letter dated July 31, 1991, the child's mother advised the CSE chairperson that she preferred to educate the child at home, and alluded to auditory training which the child was to receive in Canada. With her letter, the child's mother enclosed a report of a facilitated communication assessment conducted on July 2, 1991 by a speech pathologist employed by the Syracuse Developmental Center. The speech pathologist reported that the child answered yes/no and either/or questions, and spelled words correctly with the assistance of facilitated communication provided by the child's mother and the speech pathologist. The report did not reveal whether the persons who facilitated the child's responses were aware of the questions she was asked.

In an audiological evaluation conducted in the University Hospital in Syracuse on July 29, 1991, the audiologist reported that a test involving word discrimination could not be successfully performed because the child pointed to several pictures on a printed page, rather than identifying the requested stimulus. The child's auditory sensitivity was reported to be normal on her right side, with the possibility of a mild/moderate high frequency hearing loss on her left side.

In September and October, 1991, an augmentative communication assessment was performed by a BOCES communication specialist. The specialist reported that the child used a limited repertoire of intentional communication behaviors, e.g., facial expressions and non-verbal movements, and that her vocalizations appeared to be self-stimulatory behavior. The evaluator opined that the child's poor attending skills interfered with her ability to communicate. She reported that the child used a keyboard and a letter board to spell out answers to questions, with facilitated communication assistance provided by the child's mother, but that comparable results could not be obtained without the mother's assistance. The evaluator recommended that the child be trained using a variety of communication supports, and that "light tech" communication boards be used.

During the 1991-92 school year, the child's mother submitted quarterly progress reports of the child's instruction at home, as she had done in other years while educating the child at home. She reported that the child used eighth grade textbooks to study mathematics and American history, and that she also studied French and English. According to the mother, the child read and wrote in French very well. She reported that the child used the toilet independently some of the time, but had to be reminded to wash her hands. The child's mother further reported that the child was more cooperative, and had fewer temper tantrums, since receiving auditory training in January, 1992.

On April 2, 1992, the psychologist from the Syracuse Developmental Center who had evaluated the child in 1989 conducted a new psychological assessment of the child. Petitioners requested that the child be allowed to use facilitated communication to demonstrate her cognitive abilities. The psychologist devised a "blind" procedure by which the child's mother, who was the child's communication facilitator, was not aware of the questions which the psychologist asked the child. The questions were taken from the verbal portion of the Wechsler Intelligence Scale for Children. The psychologist reported that the child was unable to correctly answer any question, except a question in which she was asked how many ears she had. After the child's mother was allowed to see two test questions, at her request, the child was able to correctly answer those questions with facilitated communication assistance from her mother. The day after the evaluation was done, the child's mother told the psychologist that the child had indicated to her, through facilitated communication that she had not given correct answers during the evaluation because she was not interested in the testing. However, petitioners refused the psychologist's request to conduct any follow-up intellectual evaluation.

A second facilitated communication assessment was begun in June, 1992 and completed in August, 1992, by a different speech pathologist than had performed the assessment done in July 1991. The second speech pathologist reported that she could feel the child's movement, which while not always immediate or accurate, was nevertheless proof that the child could express herself through facilitated communication. In the August, 1992 portion of the assessment, the child reportedly read certain passages and was asked to choose the correct answers for multiple choice questions based upon the reading passages. The speech pathologist reported that the child could read at the seventh and eighth grade levels, and recommended that the child have an opportunity to participate fully in the regular education curriculum, with the assistance of facilitated communication. In her testimony at the hearing in this proceeding, the speech pathologist reiterated her belief that the child could communicate with the use of facilitated communication, but asserted that her recommendation that the child use facilitated communication was not a conclusive statement.

On July 31, 1992, an independent assessment of the child's cognitive abilities using facilitated communication was undertaken by another psychologist employed by the Syracuse Developmental Center. The assessment was observed by yet another psychologist, who reported the results of the assessment. Only a portion of a test designed to assess non-verbal ability could be administered to the child over a forty-five minute period. While noting that relatively little could be concluded about the child's mental development from such a limited assessment, the psychologist opined that the child was not "dull" , because she had successfully completed one test problem of a particular level of complexity. The child correctly spelled five of the seven words from a standardized spelling test which she was asked to spell. The psychologist testified that the spelling test was discontinued after forty-five minutes because the child was engaged in a variety of extraneous behaviors. In her report, the psychologist indicated that although no definite conclusion could be drawn about the child's intellectual achievement from her performance on the spelling test, it was nevertheless apparent that the child could spell a range of words. The psychologist concluded that facilitated communication was the child's most effective mode of communication, and recommended that respondent provide the child with an individual aide to assist the child by facilitating her communication.

On October 8, 1992, petitioners met with the CSE to develop the child's IEP for the 1992-93 school year. Petitioners requested that the child be placed in regular education eighth grade classes to provide the child with the opportunity to model the behavior of her chronological peers. They provided the CSE with a proposed IEP which had annual goals to increase the child's independence in personal hygiene skills, her level of expression with the use of a lap-top computer and an aide, her social interactions, and her ability to communicate her feelings. The CSE met with petitioners again on October 13, 1992, at which time the CSE recommended that the child be enrolled in a BOCES special education class with a 12:1+3 child to adult ratio, located in the Onondaga Central School District High School. The CSE recommended that the child be provided with an individual aide, and that she be instructed in social, communication, vocational, daily living and community skills, and ninth grade subjects, with the use of facilitated communication. The CSE further recommended that the child receive small group and individual communication therapy for a total of five times per week, and occupational therapy and physical therapy consultant services once per month. The CSE also recommended that the child have the use of a lap-top computer, until it could be determined if she could benefit from facilitated communication.

With regard to regular education, the CSE recommended that the child be mainstreamed for one academic subject, to be selected by petitioners and the CSE chairperson. The child was to be transported from the BOCES class to respondent's high school for the regular education class. The CSE provided that the child's ability to benefit either academically or socially from placement in the regular education program would be assessed, and that the CSE would reconvene thirty days after the child began the recommended program to determine if the child had demonstrated progress towards the achievement of her IEP annual goals and objectives. The child's IEP annual goals included reducing her maladaptive behavior, improving her attentive, communication, self-help and community inclusion skills within the special education portion of her program, and increasing her social interactions, level of expression and ability to communicate feelings in the regular education portion of her program.

On October 28, 1992, respondent approved the CSE's recommendation. On October 29, 1992, petitioners requested that an impartial hearing be held to review the CSE's recommendation. The hearing did not begin until February 5, 1993. In December, 1992, respondent's attorney advised petitioner's attorney of respondent's intention to have the child evaluated by the Director of Speech Pathology of the Children's Hospital of Boston for the purpose of determining whether facilitated communication was an appropriate technique for the child. When the hearing commenced, respondent sought an interim order from the hearing officer to authorize it to obtain its intended evaluation. On February 11, 1993, the hearing officer issued the requested interim order authorizing respondent to further evaluate the child.

Petitioners appealed from the hearing officer's interim order. In Application of a Child with a Disability, Appeal No. 93-14, petitioners' appeal was upheld, on the grounds that the child's use of facilitated communication had been agreed to by petitioners and the CSE in the child's IEP and was not an issue, and that there was no evidentiary basis upon which the hearing officer could find that the child's existing evaluations were inadequate.

The hearing resumed on June 23, 1993, and continued for an additional six days. It concluded on February 1, 1994. In a decision dated June 24, 1994, the hearing officer found that the child's IEP lacked annual goals which addressed her academic needs, and that the CSE had failed to make a specific recommendation for the regular education portion of the child's program because it had left the selection of the one regular education course for the child to petitioners and the CSE chairperson, and because her participation in that course was purportedly to be on a trial basis. In addition, the hearing officer found that the CSE had erred by failing to provide respondent with the CSE's complete recommendation, i.e., the child's IEP. The hearing officer also found that the CSE had violated the Federal and State regulatory requirement that the CSE identify the other options which it had considered and its reasons for rejecting those options (34 CFR 300.505 [a][2]; 8 NYCRR 200.5 [a][4][i][c]). With regard to the CSE's desire to assess the effectiveness of facilitated communication for the child, the hearing officer directed that the CSE wait until the child had used the technique in school for at least ten weeks. Although the hearing officer concluded that the matter should be remanded to the CSE because of the procedural flaws in the preparation of the child's IEP, he asserted that the central question was whether respondent was required to initially place the child in its regular education program before it could make a determination that the child should be placed for all or part of the school day in a special education class. The hearing officer held that a school district was not required to place a child in a regular education class as a precondition to a recommendation that the child receive some or all of her education in a special education class.

Petitioners assert that they were denied their right to an impartial hearing by the manner in which the hearing officer evaluated the testimonial evidence presented at the hearing. They refer to a portion of the hearing officer's decision in which he stated:

"The various witnesses called by the parents displayed an exceptional lack of objectivity with respect to the recommendations that they presented. The testimony of [one of petitioners' witnesses] was not only incredible but unbelievable as well. The extreme position taken not only undermines all of her testimony but damages the overall case presented on behalf of the parents."

A hearing officer must avoid even the appearance of impropriety in conducting hearings (Application of a Child with a Disability, Appeal No. 94-8), and must render an impartial decision based upon the evidence in the record. When presented with conflicting factual or opinion testimony, a hearing officer must consider the credibility of the witnesses in reaching his or her decision. The witnesses presented by both parties offered sharply conflicting testimony about the child's abilities and needs. The specific witness to whom the hearing officer referred offered various opinions for which she had little or no factual basis, and her opinion about educating children in the least restrictive environment was inconsistent with the Federal and State regulatory requirements as they have been interpreted by the courts. Although the hearing officer's description of the witness' testimony was ill-advised, I find, after reviewing the extensive record in this appeal, that the hearing officer's remarks do not afford a basis for annulling his decision on the ground of either actual or apparent bias.

Petitioners do not challenge the hearing officer's findings with regard to the procedures used by the CSE and the child's IEP goals for the 1992-93 school year. Those findings, which in effect invalidated the CSE's recommendation for the 1992-93 school year, are therefore final (34 CFR 300.509). Nevertheless, petitioners assert that the hearing officer erred by not directing respondent to provide the child with appropriate supports and services which would allow her to succeed in a regular education class setting, and by expressing his personal belief that the child might be appropriately educated in a self-contained special education class. However, the fact that the hearing officer annulled the CSE's recommendation does not inexorably lead to the conclusion that the child would have been appropriately placed on a full-time basis in regular classes, as petitioners appear to be asserting.

In essence, petitioners seek an additional determination that the CSE's recommendation for the 1992-93 school year violated the Federal and State regulatory requirement that each child be educated in the least restrictive environment, notwithstanding the fact that no meaningful relief could be accorded to them for that school year, which had ended approximately one year before the hearing officer rendered his decision. A case like this may not become moot simply because the school year for which a child's IEP was written has ended, because the underlying dispute 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]). By letter dated September 15, 1994, petitioners' attorney advised the Office of State Review that petitioners have enrolled the child in the public schools of the Fayetteville-Manlius Central School District for the 1994-95 school year, but asserted that the child's father continues to reside in respondent's district, and that petitioners intend to enroll the child in respondent's schools when the dispute over her placement has been resolved. Under the circumstances, I find that the matter is not moot (Application of a Child with a Handicapping Condition, Appeal No. 92-46). However, it does not follow that the interests of the child or of the parties would be materially advanced by determining the least restrictive environment for this child during the 1992-93 school year. In any event, the hearing officer found that the CSE failed to show that it had considered the full continuum of programs and services which it must have available to offer children (see 8 NYCRR 200.6), which is a component of the least restrictive environment concept. More importantly for the child's future placement, the hearing officer prescribed a procedure for the CSE to follow in making a recommendation for the child's placement.

The first step in the process is to identify the child's needs and abilities. The CSE must then adopt annual goals which are appropriate in light of the child's needs and abilities in the areas for which she is to receive special education and related services. The CSE must also consider what curriculum modifications and adaptations should be made for the child, and determine what supportive services are required by the child. 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., supra). Instead, the relevant inquiry 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 (Mavis v. Sobol and Bd. of Ed. South Lewis CSD, 839 F. Supp. 968 [N.D., N.Y.]; Application of Bd. of Ed. of Schalmont CSD, Appeal No. 90-19; 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 a disability might make greater academic progress in a 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]).

The child's most recent IEP goals were focused upon developing her basic skills, including self-help and community inclusion skills, and reducing her maladaptive behavior. Those goals are consistent with the most recent assessment of the child's adaptive skills in the record. In December, 1992, a psychologist affiliated with the Syracuse Developmental Center reported that the child's daily living skills were at an age equivalent of four years and five months, and her socialization skills were at an age equivalent of six years and seven months. If such goals continue to be appropriate for the child, the CSE should consider the nexus, if any, between those goals and the regular education curriculum for an age appropriate placement. Although the CSE must make appropriate curricular modifications, it is not required to so modify the 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., supra). However, there may well be subjects or activities in which there is at least some nexus to this child's IEP goals. Until the CSE drafts appropriate annual goals for the child during the 1994-95 school year, it would be premature to attempt to determine the type of classroom in which the child should receive instruction to help her achieve her annual goals.

In addition to determining the benefit to the child in being placed in a regular education class, the CSE should also consider what effect the presence of the disabled child in a regular education class would have on the other children in that classroom (Daniel R., supra; Greer, supra). In this instance, the child appears to have significant management needs, as evidenced by her behavior during the two facilitated communication evaluation sessions which were videotaped and included in the record. The child made inappropriate vocalizations, and displayed the need for almost constant verbal encouragement and direction. During the second session, she was out of her seat on more than one occasion, and repeatedly grabbed a communication board but would not use it to express herself. The behavior which the child exhibited is comparable to that reported by the psychologist in her assessment of the child's adaptive behavior in December, 1992. Indeed, the psychologist testified at the hearing that the child would have difficulty in a regular education classroom because she makes inappropriate sounds and frequently moved about. The CSE must determine whether the child's management needs can be met by the assignment of an individual aide to her, in a manner consistent with the right of the other children to a reasonably orderly learning environment.

Although the hearing officer mentioned that a special class placement might be appropriate for the child, he explicitly noted that the CSE must also consider the least restrictive environment regulatory requirement. Notwithstanding the hearing officer's remarks in his opinion about the evidence of the child's achievements and needs in the record before him, I find that he has not precluded the CSE from reaching an appropriate decision about the child's future placement. It is incumbent upon the CSE to meet with petitioners promptly to prepare an IEP for the 1994-95 school year. Petitioners should share any information they have about the child's present levels of performance and needs with the CSE. In view of the extensive documentary evidence and testimony in the record about the validity of the technique of facilitated communication in general, and its appropriateness as a technique for this child, it should be noted that the CSE has the responsibility to determine whether facilitated communication should be provided as a supportive service for the child. If the CSE recommends that the service be provided, it is not precluded from reviewing at a later date the child's progress and the appropriateness of the service. However, I agree with the hearing officer's conclusion that it may not be offered on a trial basis, i.e., that its removal would not be subject to the pendency provisions of Federal and State law if the petitioners chose to challenge a subsequent CSE recommendation to discontinue the service. 

THE APPEAL IS DISMISSED.