Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Stockbridge Valley Central School District
Legal Services of Central New York, Inc., attorney for petitioner, Paul F. Kelly, Esq., of counsel
Hancock and Estabrook, LLP, attorneys for respondent, Martha L. Berry, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that petitioner's child remain in a self-contained special education class of the Board of Cooperative Educational Services of Madison and Oneida Counties (BOCES) for the 1994-95 school year. The appeal must be sustained in part.
Petitioner's child, who is 17 years old, is classified as multiply disabled (mentally retarded and orthopedically impaired). In an independent psychological evaluation completed in July, 1989, the child achieved a verbal IQ score of 46, a performance IQ score of 45, and a full scale IQ score of 41. The results, which were reported to be comparable to those which the child had attained in prior evaluations, placed the child in the moderately retarded range of cognitive functioning. Her visual attention to detail was reported to be a relative strength. The evaluator opined that the child appeared to have perceptual weaknesses, including maintaining left to right scanning or sequencing, performing perceptual matching or reproduction of designs, and remembering sequential information, which impacted upon her ability to acquire functional academic skills. For example, the child could reportedly copy her name, but had difficulty remembering the sequence of the letters of her name. The evaluator reported that the child had been able to maintain her concentration during hour-long evaluation sessions. She further reported that the child's domestic and community skills, particularly in social interaction, were relative strengths for her. Some of her adaptive behavior skills were thought by the evaluator to be delayed because of deficits in the child's motor skills, rather than deficits in her cognitive skills. However, her independence in the community was reported to be limited primarily by weaknesses in her functional academics, such as her limited ability to tell time, count money and read signs. Socially, the child was described as initially shy.
The child has motor/muscle deficits, as a result of cerebral palsy. She can walk with the assistance of crutches. Within the classroom, she is able to walk short distances without crutches. On her proposed individualized education program (IEP) for the 1992-93 school year, the child is described as walking at a slower pace, following recent heel cord release surgery. She has received physical therapy for her gross motor deficits and occupational therapy for her fine motor deficits. For the 1994-95 school year, the CSE recommended that the child receive occupational therapy to improve the child's physical ability to write. The child's classification as multiply disabled is not in dispute.
Petitioner's child has been enrolled in special education classes since entering preschool. When the child became eligible because of age to attend kindergarten, petitioner reportedly asked to have the child educated in respondent's elementary school building. However, the child has been educated in various BOCES special education classes located outside of the Stockbridge Valley Central School District. In early 1988, the child was independently evaluated at petitioner's request. This evaluation was performed after the child's special education class was relocated from an elementary school in which regular education was also provided to another building in which there was no opportunity for contact with her non-disabled peers. The independent evaluator, who reviewed the child's IEPs for prior school years and observed the child in her special education class, opined that the child required an educational program which offered her an appropriate combination of individual and large group instruction and independent work, using age-appropriate instructional materials. Noting that the child had been provided with a developmental curriculum, the evaluator recommended that the child's curriculum be altered to provide more academic instruction. The evaluator opined that the child needed on-going contact with age-appropriate peers, which could assist her in developing her speech/language skills, and recommended that she be mainstreamed for art, music, and physical education. The evaluator further recommended that the child be reassigned to respondent's school. Instead, the child was moved to another BOCES special education class of the City School District of the City of Sherrill located in Verona, New York.
For the 1992-93 school year, the child was placed in the Vernon-Verona-Sherrill Middle School. Her IEP provided that although she would be assigned to a regular education combined seventh and eighth grade homeroom, she would receive all of her instruction, except science, in a BOCES special education class with a child to adult ratio of 12:1+1. In addition to being mainstreamed for science, the child was to be mainstreamed for what the IEP described as a seventh and eighth grade unified arts course, an activities period, lunch, and assemblies. Her IEP also provided that she was to receive small group speech/language therapy three times per week, individual occupational therapy twice per week, individual physical therapy twice per week, and adaptive physical education twice per week.
Based upon testing completed in April, 1992, when the child was 14 years old, the child was described in her IEP as having reading readiness skills at a 1.2 grade equivalent, and mathematical readiness skills at the kindergarten level. The child was also described as being able to count to 20, read four function words, identify time on a clock to the hour with assistance, and to count up to five items. Some of the function words which the child was taught to identify by sight were "push" and "exit". Although her sentences continued to be grammatically incomplete, she was reportedly able to make her needs known. The child's speech/language instructional objectives included initiating interaction with other children, and responding appropriately to social greetings. Her functional academic mathematical objectives included identifying numbers to 20, adding one digit numbers, telling time to the hour and half-hour, and identifying coin values. Her reading objectives included increasing the identification of function words by ten words, and matching identical letters in a group of similar letters. Objectives for developing the child's community living skills included being able to independently choose three items from a menu and to give an order to a food server.
In June, 1993, the CSE recommended that the child remain in an out-of district special education class for much of her primary instruction during the 1993-94 school year, notwithstanding petitioner's request that an inclusion program be developed for the child in respondent's school. However, respondent did. agree that its school psychologist would evaluate the child to ascertain her ability to benefit from instruction in regular education classes. The record does not include a copy of the school psychologist's evaluation. Petitioner objected to the results of the evaluation, and requested that an independent evaluation be conducted. She also requested that an impartial hearing be held to review the CSE's recommendation of June, 1993. In September, 1993, the parties agreed that the child's 1992-93 IEP would be implemented in eighth grade classes during the pendency of the proceeding to review the CSE's recommendation for placement. A hearing was scheduled to be held in November, 1993, after the child's evaluations had been completed.
At respondent's request, the child was evaluated by a BOCES special education administrator, who reviewed the child's records and observed the child in her special education class and in her mainstreamed science and unified arts classes in the Fall of 1993. The administrator noted that although there had been little change in the child's cognitive skills, she had evidenced progress by reducing her distractibility, improving her speech intelligibility, and developing her independent living and social interaction skills. The child received primary instruction in mathematics in her special education class, in which she also participated in "free time" and "calendar" activities. During the remainder of the school day, the child attended regular education classes, or received related services. The BOCES administrator reported that the child's special education teacher had opined that the child did not require an individual aide to accompany her in her regular education classes, although an aide had been assigned to do so, and that there were no additional subjects in which the child could be mainstreamed. The child's aide reported that the child was eager to attend her regular education classes, notwithstanding the paucity of interaction between the child and her regular education classmates. The BOCES administrator recommended that the child's mainstreaming opportunities be increased by allowing her to be with her nondisabled peers during homeroom and mathematics periods, and by altering her transportation schedule to allow her to remain with her non-disabled peers for the special activity period at the end of the school day. She also recommended that a plan be developed to improve the child's social interaction skills, and that there be more communication between the child's regular and special education teachers.
The independent evaluation which petitioner sought was completed in December, 1993. The independent evaluator reviewed the child's records, and observed the child in both of her mainstreamed classes, as well as her special education class. The independent evaluator challenged the IEP description of the child's behavior/management needs, which reported that the child needed a highly structured learning environment. She reported that the child's behavior in her special education class was virtually identical with her behavior in her regular education science class. The independent evaluator also challenged the appropriateness of the child's IEP goals. She opined that the child was capable of acquiring literacy skills beyond the simple identification of isolated words, and that the child should be provided with mathematical skills which have more value in the real world. An associate of the independent evaluator provided an analysis of the child's language and communication skills and needs. While noting that the regular education classes of the Vernon-VeronaSherrill Middle School offered many opportunities to meet the child's educational needs, the independent evaluator nevertheless urged that respondent develop a program for the child in its own schools for implementation during the latter half of the 1993-94 school year.
The child remained in the combination of special education and seventh/eighth grade regular education classes for the rest of the 1993-94 school year, under her IEP for the 199293 school year. The parties apparently agreed not to assume the hearing, but to await the outcome of the CSE's annual review of the child. Shortly before the CSE conducted its review, the child's speech/language therapist reported that the child's receptive, expressive and total language test scores remained more than two standard deviations below the mean. The therapist also reported that the child exhibited limited spontaneous speech, and she opined that the child appeared to have difficulty with word retrieval. The therapist reported that the child often required prompting in order to choose appropriate words to express herself.
At its June 13, 1994 annual review, the CSE recommended that for the 1994-95 school year, the child remain classified as multiply disabled. It further recommended that the child be enrolled in a 12:1+1 BOCES special education class in the Vernon-VeronaSherrill High School, and be mainstreamed only for ninth grade studio art, homeroom and chorus. The CSE also recommended that the child receive speech/language therapy in a small group twice per week, occupational therapy in a small group twice per week, individual physical therapy twice per week, and adaptive physical education twice per week. The CSE also made provision on the child's IEP for one 30 minute period per week of "planning time", which is not explained in the record. The IEP indicated that the child would be provided with a community based vocational/occupational program, but provided no additional information about the program. At the hearing in this proceeding, a BOCES vocational education teacher testified that the students spend one to two years with him, during which they receive training in laundry, cooking, light manufacturing and custodial cleaning, and thereafter the students may be assigned job coaches to work with them in local businesses. The child's IEP included annual goals to improve her functional mathematics and reading skills. The CSE did not make provision for a statement of the transition services needed by the child, as it was required to do by 8 NYCRR 200.4 (c)(2)(v).
By letter to the CSE chairperson, dated June 13 1994, petitioner asked for an impartial hearing to review the CSE's recommendation. She also asked that her request for review of the child's 1994-95 IEP be consolidated with her prior request for review of the child's 1993-94 IEP. Respondent agreed to have the hearing officer appointed to review the earlier IEP also review the later IEP. In a letter dated August 24, 1994, the CSE chairperson informed petitioner that the child's IEP for the 1992-93 school year would remain in effect pending the outcome of the hearing concerning the child's IEP's for the two subsequent school years.
Following discussion between the parties in September, 1994, the child received an independent vocational assessment, which was completed in October, 1994. The independent evaluators observed the child at school and in her home, and interviewed petitioner about the child's strengths and weaknesses. They also accompanied the child on visits to a local restaurant, store, library, and office, where various types of jobs were described to the child. The independent evaluators, who opined that the child's educational program was not helping her to gain the knowledge and skills she needs to be successful in employment, urged that either respondent or the BOCES develop an individualized vocational curriculum for the child, as well as a written transition plan. They further opined that the child would be able to participate in a work-study program, while acknowledging that she would need support from a job coach to be successful when working at a job in the community. They urged that the child's communication skills be independently evaluated.
The hearing in this proceeding commenced on November 1, 1994, and concluded on December 20, 1994. In his decision, dated February 28, 1995, the hearing officer found that the child's program for the 1994-95 school year which the CSE had recommended was appropriate to meet her needs. However, he directed the CSE to reconvene to complete the child's IEP by developing an appropriate education program and an appropriate transition plan. Noting that respondent had not offered proof that it had conducted a psychological evaluation of the child within the last three years, the hearing officer directed the CSE to complete such an evaluation, if it did not have a current evaluation. He also directed the CSE to revise the child's IEP to state the child's instructional objectives in measurable terms so that the child's degree of progress could be ascertained. He further directed the CSE to evaluate the child's current levels of performance and determine appropriate and measurable IEP goals for her. The hearing officer ordered the CSE to place the child in regular education classes, with age appropriate peers, to the extent that the child could reasonably be expected to achieve her IEP goals in such classes. The hearing officer also directed the CSE to develop a vocational program for the child, while opining that the BOCES introductory occupational program appeared to be appropriate
Petitioner challenges the hearing officer's decision on the grounds that the CSE allegedly failed to prepare an adequate IEP for the child, and that the recommended placement for the child was not the least restrictive environment for the child. She seeks an order directing respondent to place the child in "a fully inclusive age appropriate regular education setting in Stockbridge." Petitioner asserts that the child should be placed in eleventh grade regular education classes. She also requests that the child be provided with a job coach to assist her at a community work site.
The board of education 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 No. 92-7; Application of a Child with a Disability Appeal No. 93-9). To meet its burden, the board of education 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 ), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a]). 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).
In order to demonstrate that the child's proposed IEP for the 1994-95 school year accurately reflects the results of current evaluations, respondent was required to produce evidence of evaluations performed within at least the last three years (8 NYCRR 200.4 [e]), upon which the CSE relied in preparing the child's IEP. I find that respondent has failed to do so. At the hearing in this proceeding, the CSE chairperson testified that the child had been re-evaluated at the CSE's request in 1993, although her triennial evaluation was not due until 1994. However, the only reasonably current evaluative information about the child which respondent offered were the independent evaluation completed in December, 1993, two brief descriptions of the results of visual motor integration and visual perception tests administered in March and April, 1994, respectively, and a communication update completed in June, 1994. The proposed IEP does not reflect the results of the child's visual motor integration and visual perceptual tests in the Spring of 1994, or the June, 1994 communication update. Although the CSE could have relied upon the results of the independent evaluation in lieu of its own testing (Application of a Child Suspected of Having a Disability, Appeal No. 94-42), respondent asserts in its answer that the independent evaluation in question is "conclusory". Absent evidence of the evaluations upon which the CSE did rely, there is no basis upon which I could find that the CSE has appropriately assessed the child's strengths and needs and prepared an IEP which accurately reflects that assessment.
There are additional reasons why the CSE's recommendation, as reflected in the child's IEP, cannot be sustained. The IEP annual goals and instructional objectives leave much to be desired, as found by the hearing officer. Although the CSE has proposed that the child receive primary special education in all subjects, except art and chorus, the child's IEP sets forth only two, vague annual goals for her academic instruction: to improve her functional math skills, and to improve her functional reading skills. The objectives with regard to improving her functional math skills are to follow her academic schedule with prompting, with at least 50 percent accuracy; to tell time accurately to 30 minute intervals; and to purchase an item in the school or community setting by rounding the price to the highest dollar, with 50 percent accuracy. The child's two functional reading objectives are to identify high frequency directional concepts, such as circle or underline, with 50 percent accuracy, and to identify functional words as they relate to her career exploration program with 50 percent accuracy (although the IEP makes no provision for a career exploration program). I find that these goals and objectives, which appear to be developmental, are inadequate to provide the child with appropriate instruction to help her achieve even minimal proficiency in adult living and a vocation. I further find that the goals and objectives are inadequate to support the child's all but full-time placement in a special education program, which the CSE has proposed.
The child's IEP must be revised to accurately and more fully describe the child's current levels of performance in areas relevant to her needs (8 NYCRR 200.4 [a][i]), and to set forth more meaningful annual goals and short-term instructional objectives before a definitive determination can be made about the nature of the special education services which the child requires and the place[s] in which such services should be provided. In view of the child's age and her cognitive deficits, it is imperative that the CSE develop an appropriate vocational program for the child, which must be far more focused than the BOCES introductory vocational program. The CSE should use the information set forth in the child's independent vocational evaluation to design an appropriate vocational program. Once an appropriate vocational program has been designed, the CSE must determine what transition services should be provided to the child. 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:
(ii) Community experience;
(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])
From the record before me, I find that the child requires at least one period per day of special education to provide the specific functional academic and daily living skills needed to increase her independence in her work setting. Her classroom instructional materials and specialized equipment/adaptive devices should be related to her vocational program. Her related services should also be designed to support her vocational program. Federal regulation provides:
"That special classes, separate schooling or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." (34CFR 300.550[a]).
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 disabled peers (Daniel R. v. El Paso Indep. School Dist. 874 F. 2d 1036 [5th Cir., 1989]), 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 or services (Mavis v. Sobol and Bd. of Ed. South Lewis CSD, 839 F. Supp. 968 (N.D.N.Y, 1994]; Application of Bd. of Ed. of Schalmont CSD, Appeal No. 90-19; Application of a Child with a Disability, Appeal No. 93-4). 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 program (Oberti v. Borough of Clementon Sch. Dist.995 F. 2d 1204 [3rd Cir., 1993]). 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 [llth Cir., 1991]). In addition to determining the benefit to the child in being placed in a regular education class, the CSE must also consider what effect the child's presence in a regular education class would have on other children in that class (Daniel R. v. El Paso Indep. School Dist., supra; Greer v. Rome City Sch. Dist., supra; Application of a Child with a Disability, Appeal No. 94-23).
At the hearing, respondent offered little, if any, rationale for the CSE's recommendation that the child no longer be mainstreamed for science, or for any subject other than art and chorus. At the hearing in this proceeding, the BOCES administrator who assessed the child in December, 1993 opined that the child could achieve her IEP goals in a regular education setting. Respondent offered no evidence which contravened the BOCES administrator's opinion. Nevertheless, the child's IEP including her annual goal and shortterm instructional objectives, must be revised. Until the IEP is revised, it is premature to attempt to determine whether her revised goals and objectives can be achieved in the equivalent of one period per day of primary instruction in special education in either a selfcontained special education class, or in regular education classes with the services of a consultant teacher and an aide. The CSE must consider the feasibility of providing the needed services to the child in respondent's own school (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a]). The proximity between the child's residence and the school he or she will attend is an important consideration in determining the child's placement.
Petitioner also seeks a determination that the use of the child's IEP for the 1992-93 school year during the two ensuing school years violated the child's right to receive a free appropriate public education. Both Federal and State law require that during the pendency of any proceeding to review a CSE's recommendation, the child shall remain in "the then current placement" of such child, unless the school district and the child's parents otherwise agree (20 USC 1415 [e]; Section 4404  of the Education Law). In general, a child's then current placement is the last mutually agreed upon placement. The United States Office of Education has opined that a child's current placement would "generally be taken to mean the current education and related services provided in accordance with a child's most recent [IEP]" (EHLR 211:481). A school district and a child's parents may, of course, agree to something other than what the child's IEP would provide (Zvi D. v. Ambach, 550 F. Supp. 196 [E.D.N.Y., 1981], aff'd in part, 694 F. 2d 904 [2nd Cir., 1982]; Application of the Bd. of Ed. of the Pittsford CSD, Appeal No. 91-14). In this instance, petitioner reportedly sought to have the child's homeroom and regular education class assignments changed during the pendency of this proceeding. The CSE chairperson testified that she had been advised by a representative of the State Education Department that the child's grade level could not be changed, even with the consent of the parties. That advice was clearly incorrect. In the future, respondent must comply with the "pendency' provisions of Federal and State law.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the decision of the hearing officer is annulled; and,
IT IS FURTHER ORDERED that within 30 days from the date of this decision, respondent's CSE shall revise the child's IEP in accordance with the tenor of this decision.