94-029

At the outset, I must address respondent's contention that I should not consider the documentary evidence annexed as exhibits to the petition, because such evidence was not included in the record before the hearing officer. Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision, if such evidence was unavailable at the time of the hearing, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 93-22; Application of a Child with a Disability, Appeal No. 94-5). Petitioner was represented by an attorney at the hearing. There are 15 exhibits annexed to the petition. I find that only Exhibits M and N are appropriately included in the record of this appeal. Exhibit M is a report by a neurologist who examined the child in February and November, 1993. Exhibit N is a report by a private psychologist who examined the child in June, 1993. Petitioner asserts that she attempted through her attorney to introduce these exhibits. There is a brief reference in the record to the psychologist's report, which was reportedly excluded because the psychologist did not testify. However, there is no basis for excluding either document for such reason, which goes to the weight to be given such evidence, rather than admissibility.

Petitioner's son, who is 20 years old, was diagnosed early in life as having congenital benign hypotonia, i.e., weakness of skeletal muscles from birth, with cerebral atrophy. The child also has a history of seizure activity, for which he has been treated with an anti-convulsive medication. While he was in elementary school, the child was diagnosed as having scoliosis, as a result of which he wore a body brace. Ultimately, he required surgery in which metal rods were placed next to his spine. In a psychological evaluation performed in 1987, when he was 13 years old, the child was described as having difficulty moving through space, with little sense of direction and an awkward gait. He was further described as highly motivated and having a strong attention span. He exhibited a seven year delay in his visual motor integration skills. He reportedly has difficulty with depth perception.

In January, 1992, when the child was 17 years old, the child achieved a verbal IQ score of 75, and a performance IQ of 67, which yielded a full scale IQ score of 71. The child's IQ scores, which were in the mildly retarded range, were generally consistent with the results of prior assessments of his cognitive skills. He demonstrated relative strength in his vocabulary and verbal concept skills, and relative weakness in his visual organization skills and his ability to sequence tasks. The child was initially classified as physically handicapped/neurologically impaired while in respondent's preschool program. While he was in elementary school in 1983, his classification was changed to learning disabled. He is presently classified as multiply disabled, based upon his physical and neurological impairments. The child's classification is not in dispute.

Prior to entering kindergarten in 1980, the child received rehabilitation services at home. He received resource room support and speech/language therapy when he was in kindergarten. From the 1981-82 school year through the 1987-88 school year, the child attended the Bishop Dunn School, a private school which is approved by the State Education Department as a school for children with disabilities. He attended the Bishop Dunn School, upon the recommendation of respondent's CSE and at respondent's expense. While attending the Bishop Dunn School, the child was enrolled in a 12:1+1 special education class, although he reportedly had some mainstreaming opportunities in the school.

In December, 1987, while in his seventh year of instruction since kindergarten, the child achieved grade equivalent scores of 4.1 in reading, 4.6 in mathematics, and 2.8 in spelling. The Bishop Dunn School psychologist reported that, using his sight vocabulary plus some auditory decoding, the child had shown steady progress in reading while in the Bishop Dunn School. Although the child had difficulty decoding words, he was reportedly able to read with understanding. The child had also demonstrated steady progress in mathematics, while having some trouble performing the regrouping function in computations. However, his spelling had basically remained at the second grade level for the preceding four years. The evaluator opined that the child relied upon his visual memory for spelling, and had difficulty using an auditory approach to spelling.

For the 1988-89 school year, the child attended respondent's middle school, in which he was enrolled in a 12:1+1 special education class. He received speech/language therapy and counseling, as related services. In the Spring of 1989, physical therapy and occupational therapy were added to the child's educational program. The child started his high school program in respondent's South Campus High School, where he was enrolled in a 12:1+1 special education class and continued to receive related services during the 1989-90 school year. The child attended respondent's North Campus High School for the 1990-91 through 1992-93 school years. In April, 1991, he reportedly achieved a grade equivalent score of 2.6 in reading comprehension, while his oral reading was reported to be below the pre-primer level. He achieved a grade equivalent of 3.7 in mathematics. During the 1991-92 and 1992-93 school years, the child's educational program including one-half day of academic instruction in a 12:1+1 special education class in the high school, and one-half day of special occupational education at the Board of Cooperative Educational Services (BOCES) for Dutchess County. He participated in a combination of food services and horticulture programs at the BOCES during the 1991-92 school year, and in the horticulture program during the 1992-93 school year.

In the Summer of 1992, the child, who was then 16 years old, participated in an eight week program of the Dutchess County Association for Retarded Citizens. As part of that program, the child received a diagnostic vocational evaluation. He was described as having a good fund of general knowledge, but being in need of training to develop an ability to live independently. Although he did not display any condition which would limit his chance to be employed, the child was described as needing improvement in maintaining effort, exercising good judgment, avoiding distractions, and paying attention to details. The child was reported to be interested in clerical service, food service, personal service and material handing tasks, while having a low interest in occupations requiring physical labor or outdoor work. The vocational evaluator recommended that, during his remaining years in high school, the child receive adaptive daily living training, including the use of hand tools, shopping and cooking, basic first aid, money management, telling time and measuring liquids and solids. The evaluator reported that the child had mild problems with his vision and severe problems with his ability to sequence. She further recommended that the child receive instruction involving a combination of visual and auditory techniques, and training in recall and sequencing to develop his work skills.

The child's IEP for the 1992-93 school year, which had been prepared before the child received his vocational evaluation, was not revised to reflect the results of such evaluation. The IEP indicated the extent of the child's participation in regular education programs by the cryptic notation "As per schedule". However, no schedule was attached to the IEP in the record (cf. 8 NYCRR 200.4 [c][2][iv]), and there is no evidence that the child did participate in any portion of respondent's regular education program. The child's IEP included annual goals for the child to improve his skills in reading, writing, mathematics, social studies and science, as well as an annual goal to demonstrate an improvement in following school and classroom rules and expectations. His IEP set forth two annual vocational goals. The objectives for those goals involved demonstrating basic mathematic skills; demonstrating appropriate work responsibilities, such as regular attendance and punctuality; demonstrating successful job-seeking skills, such as completing a job application; and demonstrating appropriate interviewing skills.

At the hearing in this proceeding, the child's special education teacher testified that the child's academic program was focused toward acquiring life skills particularly in the area of reading and writing. In mathematics, the child was provided with instruction in multiplication, while his science program was reportedly focused upon plant life, cells and tissues. Although the teacher testified about some of the activities in which the child had been involved to learn how to acquire and keep a job, respondent provided relatively little information about the instruction or training which the child received to enable him to live independently.

In February 1993, the child's IEP was revised to discontinue the child's physical therapy and occupational therapy, which were deemed to be no longer necessary. He continued to receive speech/language therapy. The child's annual review was scheduled to take place in late February, but was postponed at petitioner's request until May, 1993. Petitioner asked the CSE to have an additional vocational evaluation of the child performed by the Southern Westchester BOCES. Respondent arranged with the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities (VESID) for an evaluation to be performed by a private agency in September, 1993. The record reveals that the CSE had assumed that the child would graduate with an IEP diploma at the end of the 1992-93 school year. However, petitioner requested that the child remain in school for another year.

On May 5, 1993, the CSE met with petitioner to prepare the child's IEP for the 1993-94 school year. The CSE recommended that the child remain in the special education class he had been in during the 1992-93 school year. It also recommended that he continue to receive group counseling once per week, but recommended that his speech/language therapy be discontinued. The child's IEP once again indicated that the extent of his participation in regular education programs would be "As per schedule". At the hearing in this proceeding, the child's special education teacher testified that the schedules of the children in her class were prepared in the Summer, and that petitioner's child had been scheduled to take a sports literature course which was part of respondent's regular English instructional program. However, no schedule was introduced into evidence at the hearing. In any event, a CSE cannot delegate its responsibility to determine for which subjects a child requires special education, and by implication, for which subjects the child should receive regular education instruction. The child's IEP included very general annual goals for the child to demonstrate an improvement in written language, mathematics, reading and his employability skills, and to demonstrate an understanding of the critical issues of United States and New York State history and the critical skills for life science. As in previous IEPs for the child, the CSE recommended that the child have the use of a calculator and tape recorder, and that he have a variety of test modifications.

Although the child's IEP included an annual goal related to his employability and general life skills, it did not provide for any specific vocational training for the child. The minutes of the CSE meeting at which the IEP was prepared reveal that the CSE proposed to review the result of the child's vocational assessment which was to be performed in September. At the hearing in this proceeding, the child's special education teacher testified that for a one or two-month period in the Fall of 1993, the child was to have been in her class during the morning and would receive his vocational assessment in the afternoon. After the evaluation was completed, the child was to have been placed in a one-half day work-study program, while continuing to receive instruction in his special education class during the remainder of the day. However, the child's IEP made no provision for a work- study program, and did not include annual goals or short-term objectives for such program.

Petitioner did not immediately challenge the child's IEP. She enrolled the child in a summer program of the Maplebrook School, a private school in Amenia, New York. In a meeting with the CSE chairperson on August 23, 1993, petitioner orally requested that respondent place the child in the Maplebrook School for the 1993-94 school year. The CSE chairperson reportedly advised petitioner that the CSE would not recommend the child's placement in the Maplebrook School. Petitioner enrolled the child as a day student in the Maplebrook School for the 1993-94 school year, on August 26, 1994.

In a letter to the CSE chairperson, dated October 8, 1993, petitioner asked for a CSE meeting to be held to review and plan for the child's program during the 1993-94 school year. The CSE met with petitioner on November 4, 1993, at which time petitioner requested that the CSE recommend that respondent reimburse her for her expenditures for the child's tuition at the Maplebrook School during the 1993-94 school year. The CSE agreed to meet again with petitioner, after respondent's director of pupil personnel services and a school psychologist had observed the child at the Maplebrook School. The observation was conducted on November 15, 1993. As a result of scheduling difficulties, the CSE did not meet again with petitioner until January 12, 1994. The CSE orally advised petitioner that it would not recommend that respondent pay for the child's attendance at the Maplebrook School. It did agree to consider petitioner's request that the child's 1993-94 IEP be amended to provide one additional annual goal and various short-term instructional objectives designed to prepare he child to be able to function independently in the community.

In a letter dated January 19, 1994, the CSE chairperson advised petitioner that the CSE would not recommend that respondent fund the child's placement at the Maplebrook School, but invited petitioner to attend another CSE meeting at which petitioner's proposed IEP annual goal and a new BOCES work-study program would be discussed. On February 2, 1994, the CSE met with petitioner, and revised the child's IEP to include an annual goal for an improvement in the child's daily living skills, a revised annual goal for the child's vocational/career skills, and an annual goal relating to the child's understanding of certain health issues. The revised IEP no longer included annual goals relating to written expression, reading or mathematics, and still did not provide for any specific vocational training.

By letter dated March 8, 1994, petitioner requested that an impartial hearing be held to review the CSE's recommendation in January, 1994 that respondent not assume financial responsibility for the child's placement in the Maplebrook School. Although the child became a residential student at his private school in April, 1994, petitioner stipulated at the hearing that she sought recovery only for her expenditures for the child's attendance as a day student. The hearing began on May 12, 1994, and concluded on June 16, 1994. Petitioner waived the right to have a hearing officer's decision within 45 days after her request for a hearing (34 CFR 300.512 [a][1]).

In his decision, dated August 12, 1994, the hearing officer determined that respondent had offered an appropriate educational program for the child, as reflected in the IEP which the CSE had prepared on February 2, 1994. He found that the IEP set appropriate annual goals and short-term objectives for preparing the child for his transition from school to life in the community and work. The hearing officer also held that the program proposed by the CSE was the least restrictive setting in which the child could obtain a meaningful education. Having found that respondent had offered an appropriate program in the least restrictive environment the hearing officer denied petitioner's request for an order requiring respondent to reimburse her for the cost of the child's education as a day student in the Maplebrook School during the 1993-94 school year.

Petitioner asserts that the hearing officer erred by denying her attorney's motion to require respondent to allow petitioner's expert witness to observe the special education class which had been recommended for the child, but which the child did not attend during the 1993-94 school year. Respondent's attorney had previously denied petitioner's request for such observation, on the ground that it would be disruptive to the students in the class. However, petitioner was afforded an opportunity to observe the class, and did so on November 16, 1993. The hearing officer denied the motion on the ground that neither Federal nor State statute or regulation expressly provided for discovery procedures before impartial hearings are held. Although I agree that neither statute nor regulation provide for discovery procedures, I nevertheless find in this instance the respondent's refusal to allow the observation, and the hearing officer's denial of petitioner's motion, are inconsistent with the concept of fairness implicit in the statutory and regulatory requirements relating to impartial hearings. Respondent presented the testimony of its Director of Pupil Personnel Services and its school psychologist about their observation of the child in the Maplebrook School. They were also permitted to opine about the appropriateness of that school for petitioner's child. Petitioner's expert witness testified about the child's IEP. However, he acknowledged that he could not offer an opinion about the appropriateness of respondent's program without having had an opportunity to observe the program, or review the lesson plans of the child's teacher. Respondent would not agree to allow the expert to review the lesson plans. Under the circumstances, I find that petitioner was deprived of a full opportunity to present evidence and testimony (cf. 8 NYCRR 200.5 [c][4]).

There are also substantive grounds for annulling the hearing officer's decision with regard to the appropriateness of the respondent's program. Respondent's bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal 92-7; Application of a Child with a Disability, Appeal 93-9). To meet its burden, respondent must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSE v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restricted 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 result of the evaluations to identify the child's needs, provides for the use of 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 93-9; Application of a Child with a Disability, Appeal No. 93-12).

The initial question to be determined is which IEP is to be reviewed in deciding whether respondent had an appropriate program for the 1993-94 school year. The hearing officer premised his decision upon the child's amended IEP, which was not drafted until February 2, 1994. Although petitioner did not request an impartial hearing until after the CSE had amended the child's IEP, her request for a hearing specifically referred to the CSE's recommendation in January, 1994, which in essence was for respondent to adhere to the child's IEP of May 5, 1993. Furthermore, it was respondent's responsibility under Federal and State law to have an appropriate program available for the child for the entire school year. Therefore, I must first consider the provisions of the child's IEP as drafted on May 5, 1993.

An IEP must adequately describe the child's present levels of performance (8 NYCRR 200.4 [c][2][i]). The child's IEP reported the child's academic performance on standardized tests which had been administered in February, 1992, but did not provide a more current description of his educational achievement. Since the child's IEP for the preceding year did not reveal whether the child had attained the goals and objectives set forth in that document, there was no basis for the CSE to determine the level of the child's skills when it established his goals and objectives for the 1993-94 school year. In addition to reporting levels of performance, an IEP must describe the child's needs which are a function of the child's disability. This child clearly has social and management needs, as described in his vocational assessment by the Dutchess County Association for Retarded Citizens, in 1992. However, I find that this child's IEP does not report those needs, or the related levels of the child's skills.

The next issue is whether the child's IEP annual goals are reasonably related to his education deficits. I find that the child's annual goals and their respective short-term objectives with regard to social studies and science are not relevant to this child's special education needs. Petitioner's son, who is now 20 years old, requires instruction to prepare him to live as independently as possible and to be employed, as an adult. It is more consistent with this outcome to teach the child the basic concepts used in the activities of daily living than it is to require the child to identify "major kingdoms and sub-kingdoms for [the] classifications of plants and animals", and to "explain how societies teach individuals to live within specific value systems".

The central issue is whether respondent's program as reflected in its IEP would have provided for the use of appropriate educational services to address the child's special educational needs. I find that this child required a combination of special education instruction in functional academic skills, appropriate transition services, and specific vocational training, to ensure that he is appropriately prepared for employment, community integration, and independent living. The record reveals that the program which the CSE proposed for the 1993-94 school year was similar to that which respondent provided during the 1992-93 school year. The child's teacher testified that she had provided instruction with a life skill orientation, e.g., reading recipes and writing letters of application for employment. In mathematics, the teacher instructed the child in basic mathematical operations, and had the child use a modified cash register and learn to write checks and balance a checkbook. I find that at this portion of the child's academic instruction was appropriate.

Transition services are defined by Federal regulation as:

" (a) . . . a coordinated set of activities for a student, designed with an outcome-oriented process, that promotes movement from school to post-school activities, including postsecondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation.

(b) The coordinated set of activities described in paragraph (a) of this section must --

(1) Be based on the individual student's needs, taking into account the student's preferences and interests; and,

(2) Include needed activities in the areas of:

(i) Instruction;

(ii) Community experiences;

(iii) The development of employment and other post-school adult living objectives; and

(iv) If appropriate, acquisition of daily living skills and functional vocational evaluation." (34 CFR 300.18 [a] + [b])

I find that on the record before me, respondent's program provided minimal community experiences limited to occasional field trips. Notwithstanding the information provided by the child's vocational assessment in 1992, concerning his expressed vocational preferences and relative strengths and weaknesses, I find that there is slight evidence that respondent has selected appropriate vocational courses at the BOCES, or has addressed his other post-school adult living objectives. In February, 1993, the child completed a questionnaire detailing his need for continued instruction in daily living skills. However, his IEP for the 1993-94 school year did not address those needs, nor has respondent explained how those needs would be addressed, except for occasional travel and class trips, and opportunities to use the hope economics facilities in respondent's high schools. I find that these services were inadequate to develop the child's independent living skills.

When a child needs a specially designed vocational education program, the child's IEP must describe such program (34 CFR Part 300, Appendix C, Question 50). I find that this child requires such a program, and that his IEP fails to describe any vocational program. Although there is some evidence that the CSE intended to recommend that the child enter a specific work-study program after completing his vocational assessment in the Fall of 1993, respondent's Director of Pupil Personnel Services conceded at the hearing that the intended work-study program of the BOCES did not become available until January, 1994. While the Director insisted that the child's IEP nevertheless had an important vocational goal and short-term objectives, I find that they related to pre-vocational skills, and are inadequate as a vocational program. Accordingly, I must find that respondent has failed to meet its burden of proof with regard to the appropriateness of the program which it offered to provide the child as of September, 1993.

A board of education may be required to pay for educational services obtained for a child by the child's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Hiller v. Brunswick CSD, 674 F. Supp. 73 [N.D.N.Y., 1987]). Since I have found that the respondent did not meet its burden of proof with respect to the first Burlington criterion, I must now consider the appropriateness of the educational program which petitioner obtained.

The record reveals that the Maplebrook School is a private school which provided instruction to approximately 80 children during the 1993-94 school year. Most of the children had been classified as either learning disabled or multiply disabled. However, the Maplebrook School is not approved by the State Education Department as a school for children with disabilities for the purpose of State reimbursement to school districts for the cost of tuition. That fact is not dispositive of petitioner's claim (Florence County School District Four et al. v. Carter by Carter U.S. , 114 S. Ct. 361 [1993]). Petitioner bears the burden of proof with respect to the second Burlington criterion, i.e., the appropriateness of the services which she obtained for the child. In order to meet her burden, petitioner must show that those services were "proper under the Act [Individuals with Disabilities Education Act]" (School Committee of the Town of Burlington, supra 370), i.e., that the private school offered an instructional program which met the child's special education needs.

An administrator of the Maplebrook School testified at the hearing that petitioner's child was enrolled in a career program, which provided academic instruction in money management, personal/social skills, and occupational preparation. In addition, the career program included vocational training. The administrator also testified that the child had made progress towards achieving his IEP goals. The child's IEP developed at the Maplebrook School included annual goals to improve his daily living skills and his personal/social skills, as well as goals related to obtaining employment. I find that those goals and their related short-term instructional objectives were generally appropriate to meet some of the child's needs. However, the child's IEP lacked any specific academic component to maintain or develop the child's functional reading and mathematics skills, unlike the IEP prepared by respondent's CSE.

The Maplebrook School attempted to address the child's vocational needs by providing a rotational program of instruction in horticulture, food services, and housekeeping. However, the child had received training in horticulture and food services while attending the BOCES in prior years, and had not expressed an interest in pursuing a career in either area. The housekeeping training which the child received involved helping to keep a school dormitory clean, and would not appear to afford an adequate basis for developing a career in maintenance, even if the child had been interested in such a career. Although the Maplebrook administrator briefly alluded to the child's training in office skills during her testimony, the child's IEP did not provide for such training. The administrator's brief reference to training in office skills was inadequate to allow me to reach a conclusion about the appropriateness of such training. In essence, the Maplebrook School, as had respondent, placed the child in an introductory vocational program, rather than in a vocational program which was specifically designed to addressed his vocational interests and skills, and his physical limitations.

The child's vocational program in the Maplebrook School shared an additional defect with that of respondent's program. The child's vocational training was provided on the campus of the Maplebrook School. There was no evidence that the Maplebrook School had provided the child with the opportunity to apply the skills taught in its program in the community. However, the child's former special education teacher testified that petitioner's son has difficulty applying the skills which he has learned in a classroom to other places. Therefore, I find that it is essential that he receive community based vocational training in order to obtain a vocational experience which could reasonably be expected to lead in the future to his successful employment.

In the absence of an IEP which addressed all of the child's special education needs or evidence that the Maplebrook School had in fact provided a meaningful vocational experience for the child during the 1993-94 school year, I must find that petitioner has not met her burden of proof with regard to the appropriateness of the educational services which she obtained for the child. I need not reach the issue of whether the private school placement was the least restrictive environment for the child. Similarly, I do not reach the third Burlington criterion, i.e., whether equitable considerations support petitioner's claim for tuition reimbursement.

Regardless of the parent's preference for the Maplebrook program, respondent continues to have the responsibility of preparing an appropriate program for the child for the 1994-95 school year. The child's IEP should specify the transition services, regular education services, special education services, vocational training and related services to be provided. The IEP must identify the organization which would perform any future vocational evaluation, and the starting and ending dates for the field based vocational program utilizing a job coach, supported employment, work-study program or similar technique that will compensate for the child's lack of skill in transferring learning from the classroom to the job site. The child's IEP must also provide for the child to maintain his functional math and reading skills, using materials that he will encounter in the home and work environment. In addition to developing employment and post-school living objectives for the child in his IEP, the CSE must assure that he receives transition services in the areas of community experience and instruction. The focus of the child's IEP should be to integrate the transition activities he needs with his total educational program. The student must be invited to any CSE meeting scheduled to consider his transition services.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED THAT the decision of the hearing officer, to the extent that it found that respondent had offered an appropriate program to the child for the 1993-94 school year, is hereby annulled.