95-070

       Petitioners appeal from the decision of an impartial hearing officer which denied petitioners' request for an order requiring respondent to contract with the Norman Howard School, a local private school which has been approved by the State Education Department as a school for children with disabilities, for the education of petitioners' son during the 1995-96 school year. The hearing officer did so, despite finding that the placement of the child in a "blended" program consisting of children with and without disabilities in respondent's School No. 23 which respondent had offered the child, would not have provided a sufficiently structured program for the child. Petitioners ask that the hearing officer's decision be annulled, and that respondent be required to pay for the child's tuition in the Norman Howard School. Respondent cross-appeals from the hearing officer's decision, and seeks a determination that the program and the placement which it offered to the child was appropriate for him. The appeal must be sustained. The cross-appeal must be dismissed.

        Petitioners' son is ten years old. During the 1994-95 school year, the child was classified as other health impaired, but enrolled in a regular education fourth grade class, with resource room services, in respondent's School No. 1. Some deficits in the child's gross and fine motor skills were noted at a screening for entry into kindergarten. In September, 1990, the boy began to attend school in the kindergarten of respondent's School No. 58. He reportedly adjusted well to kindergarten. His teacher noted on the child's report card that the boy was inattentive, and that he had difficulty working independently. She also noted that he needed practice blending sounds. Nevertheless, the child demonstrated that he had the appropriate skills, and he was promoted to the first grade.

        The child entered the first grade in respondent's School No. 1, in September, 1991. With the exception of a "Needs to Improve" for most of the school year in his ability to maintain self-control, and with regard to his handwriting, the child achieved satisfactory marks for social and academic development on his report card. However, he received remedial reading assistance, and his teacher noted on the boy's report card that the child tended to need reminders to maintain his focus. The boy also had difficulty with the retention and recall of information which he had been taught. Near the end of the first grade, the child reportedly began to take the medication Ritalin to address an attention deficit disorder (ADD).

        During the 1992-93 school year, the child was enrolled in a regular education second grade class in School No. 1. At the hearing in this proceeding, the child's mother testified that the child had difficulty with reading and writing in the second grade. She also testified that the boy became depressed about school, and that petitioners arranged for the boy to be counseled by a private psychologist. The Principal of School No. 1 testified that the child had difficulty with oral reading and written expression. On the child's report card, the second grade teacher indicated that the child was making satisfactory academic progress, and noted that his self-control and ability to work with others had improved during the school year. On a standardized achievement test in May, 1993, he achieved grade equivalent scores of 1.7 in reading, and 3.8 in mathematics.

        A speech/language and hearing screening was conducted in June, 1993, because one of the child's teachers was concerned about the boy's disorganization and his need for one-to-one assistance during the 1992-93 school year. The child exhibited adequate receptive and expressive language skills, and his pragmatic and verbal expression were found to be excellent. However the evaluator noted that the child had difficulty paying attention. Speech/language therapy was not recommended for the child, and no other evaluation was performed.

        In November, 1993, the child was referred to the committee on special education (CSE) by his third grade teacher who reported that the boy had great difficulty expressing his thoughts in an intelligible written form, and decoding written language. She further reported that the child became frustrated when faced with any tasks requiring reading or writing. In her referral, the teacher noted that the child had received reading remediation in the first grade, but that such services were not available to him in the second grade. The teacher estimated that the child's reading, decoding and comprehension skills were at the second grade level, while his mathematical application and computation skills were at the mid-third grade level. She reported that the child had negative feelings about his self-worth, and indicated that he worked best when directly supervised.

        Respondent's school psychologist reported that when evaluated in November, 1992 by a private psychologist, the child had achieved a verbal IQ score of 118, a performance IQ score of 98, and a full scale IQ score of 109. The school psychologist assessed the child's academic achievement. He reported that the child achieved standard scores of 86 in reading decoding, 79 in reading comprehension, 79 in spelling, 91 in mathematical computation, and 104 in mathematical application. He noted that the child's standard score for reading comprehension increased from 79, when the boy read the passages, to 120, when the psychologist read the passages to the boy. He also noted that the child had previously received private counseling, and had appeared to develop compensatory strategies to address his social-emotional needs. The school psychologist described the child as a student of average to high-average ability, with relevant strength in his ability to define words and sequence items, and relevant weakness in his ability to complete mathematical problems and to reproduce abstract designs. The child reportedly had difficulty tracking from left to right and top to bottom. He also described the child as an auditory learner who needed to respond verbally to information presented to him.

        In December, 1993, one of respondent's speech/language therapists administered a test of written language to the child. The evaluator reported that the boy needed constant encouragement to complete tasks, and was unable to read many of the test sentences needed to provide the required oral responses. The evaluator reported that the child had excellent auditory comprehension and verbal expression skills, but he had major deficits in his reading and writing skills. However, the evaluator recommended against providing the child with speech/language therapy.

        The child was also evaluated by an occupational therapist, who reported that the child evidenced difficulty with ocular motor control, ability to cross the midline, and had poor manual dexterity and fine motor skill, poor bilateral motor coordination and ability to balance while standing. The evaluator recommended that the child receive one-to-one occupational therapy for 60 minutes per week, and that the child use a word processor and have the services of a scribe in school.

        The Principal of School No. 1 observed the child working in a small group reading activity in his third grade class. The Principal reported that the child appeared to understand the lesson, but had difficulty writing requested information. He noted that the teacher was required to remind the child to stay focused during the lesson and to think of what was needed to complete his task.

        On January 26, 1994, respondent's CSE recommended that petitioners' child be classified as other health impaired, and that he receive resource room services for three hours per week. The minutes of the CSE meeting indicate that the CSE had concluded that the child's ADD was the primary cause of his inability to academically progress at a satisfactory rate. The CSE also recommended that the child receive small group occupational therapy twice per week, and that he have the services of a scribe, as needed, for tests. The individualized education program (IEP) which the CSE prepared for the child included short-term instructional objectives related to the development of compensatory techniques to enhance the child's academic performance by improving his copying, sequencing and organizing skills.

        At the hearing in this proceeding, the child's third grade teacher testified that the child sat next to an adult notetaker in class, and that the notetaker helped to organize and refocus the child. The child received final grades of "A" in social studies and science, and "B" in reading, language arts, composition writing, and mathematics, while in the third grade. The boy's scores on the Pupil Evaluation Program third grade reading and mathematics tests were above the Statewide reference point. His third grade teacher testified that most children complete those tests in approximately one hour, and that petitioners' son had taken five hours to complete the tests.

        The child continued to receive the services which the CSE had recommended for him, while he was enrolled in a regular education fourth grade class in School No. 1 during the 1994-95 school year. In November, 1994, the child's fourth grade teacher referred the child to the CSE because he was having great difficulty in class and his self-esteem was becoming badly damaged. The teacher reported that the child lacked organizational skills, and was unable to complete any written work, despite receiving the assistance of a notetaker and a classroom aide.

        In January, 1995, the child was re-evaluated by the school psychologist who had evaluated him in December, 1993. The psychologist reported that the child's body was constantly in motion while he was being tested. Although the child remained generally focused during the evaluation, he was distracted by auditory stimuli. On an educational achievement test, the child received standard scores of 83 in reading decoding, 101 in reading comprehension, 75 in spelling, 92 in mathematical computation, and 110 in mathematical application. The child's reading comprehension score of 101 was significantly better than the score of 79 which the child had achieved in the prior evaluation. The psychologist reported that the child appeared to have well developed verbal/auditory learning skills, and significantly delayed visual-motor skills. The child's distractibility impacted upon his reading decoding and spelling skills, while his deficits in visual-motor skills appeared to affect his ability to complete written mathematical problems. The psychologist opined that the child needed an educational environment in which compensatory skills could be taught, and accommodations made in all academic, non-academic and social areas. He recommended that textbook information be presented to the child in a verbal/auditory manner, and that the child be permitted to orally respond to questions about the information which had been presented to him. He further recommended that the child be given extended time to complete reading tasks, and that he be permitted to take tests in a separate location. He suggested that a program like that of the Norman Howard School would be appropriate to meet the child's needs, and could reduce his frustration within the classroom. In a separate "least restrictive environment" statement, the school psychologist asserted that the immediacy of the child's needs and the amount of staff time which would be required to meet the child's needs warranted the boy's placement in a school which specialized in educating students with significant learning needs.

        The child's resource room teacher reported that the child's reading and writing problems were greatly impacting upon his ability to learn in his present educational setting, and that the boy had reached his frustration level. She indicated that the boy needed a school and classroom which would infuse the strategies he needed to compensate for his weaknesses into daily instruction. The resource room teacher opined that the child would do well at the Norman Howard School. On January 18, 1995, the child was observed in class by the Principal of School No. 1, who reported that the child was not paying attention to the teacher's lesson. He described the child as trying hard to relate well to his teacher and to other students, but being frustrated by his inability to perform as well as other children.

        In December, 1994, the child was re-evaluated by an occupational therapist, who reported that there had been significant gains in the child's visual motor skills, which were five months above age expectancy. The child's visual perceptual skills were reported to be from one to two years above average, although there was a one year delay in his visual-sequential memory. The occupational therapist reported that the child exhibited a significant delay in bilateral coordination, and that he continued to have difficulty crossing the midline. She recommended that the boy receive occupational therapy for sixty minutes per week.

        The child's speech/language skills were re-evaluated in January, 1995. He achieved a standard score of 103 on a test of language development. The evaluator reported that the child's only area of weakness had been evidenced in his ability to construct a meaningful sentence from a set of words presented to him in random oral sequence. She noted that the child's ability to pay attention was better than when he was previously evaluated. The evaluator recommended that the child not receive speech/language therapy.

        On January 12, 1995, petitioners met with respondent's pupil personnel services (PPS) team, which consisted of the Principal of School No. 1, the child's fourth grade teacher, the school psychologist, the speech/language evaluator, a school social worker, and a school nurse. In a written summary of the PPS team meeting, the Principal recommended that all written subject matter should be modified for the child, and provision be made for him to orally respond to requests for information. He asserted that the Norman Howard School was the least restrictive environment for the child because of the child's unique learning style.

        The CSE was reportedly scheduled to meet with petitioners in January, 1995, but that meeting was canceled. On February 17, 1995, the CSE met with petitioners to discuss the results of the child's re-evaluation and to consider the continued appropriateness of the child's classification and placement. Although the child's fourth grade teacher did not attend the meeting, his resource room teacher was present, which satisfied the Federal requirement that the child's teacher attend the CSE meeting (34 CFR Part 300, Appendix C, Question 16). The CSE concluded that the child's visual processing and visual perceptual deficits, rather than his ADD, were the primary source of the child's educational difficulties, and it recommended that the child's classification be changed from other health impaired to learning disabled. The CSE also concluded that the child's educational needs could not be met with the resource room program. It recommended that the child be placed in a self-contained special education class with a child to adult ratio of no more than 15:1. The minutes of the CSE meeting indicate that three CSE members concluded that the child could be appropriately educated in one of respondent's 15:1 classes, while the child's resource room teacher believed that a private school placement would be appropriate.

        The CSE also recommended that the child continue to receive occupational therapy for one hour per week, and that he receive individual counseling once per week. In addition, the CSE recommended that the child have the use of a tape recorder and a word processor, and that he be given access to books on tape "as needed." The testing modifications recommended by the CSE included the assistance of a scribe, extended time to complete tests, separate locations in which to take tests, and the ability to take tests in several sessions. The boy's IEP indicated that his new program and placement would begin on April 6, 1995. However, the CSE's recommendation was not accepted by petitioners, nor implemented by respondent.

        The CSE reconvened on April 26, 1995. At the hearing in this proceeding, respondent's attorney asserted that the April 26 meeting was held as an alternative to an impartial hearing to review the CSE's February 17, 1995 recommendation. The child's fourth grade teacher attended the April 26, 1995 CSE meeting. In the interim between the two CSE meetings, petitioners took the child to the Norman Howard School where he spent three days being interviewed and attending classes. In a letter to the CSE chairperson, dated March 29, 1995, the Admissions Coordinator of the Norman Howard School indicated that the child was an appropriate candidate for admission to that school. At its April 26, 1995 meeting, the CSE reviewed the same information as had the prior CSE. It discussed the child's placement in the Norman Howard School, but its four members were equally divided between recommending that the child be placed in one of respondent's special education classes, or that he be placed by respondent in the Norman Howard School.

        The CSE met with petitioners for a third time on May 24, 1995. In accordance with respondent's policy, a different individual was assigned to serve as the chairperson and a fifth member was added. The CSE consisted of the chairperson, a school psychologist who had not evaluated the child, a parent representative, the child's fourth grade teacher, and a special education "cadre", or special education supervisor at the school building level. The child's third grade teacher and his resource room teacher attended the meeting, as did the child. The CSE recommended that the child's classification be changed to learning disabled. It also unanimously recommended that the child's program should be changed from resource room services to a 15:1 special education class for instruction in all academic subjects, during the 1995-96 school year. Four members of the CSE recommended that the child be placed in one of respondent's special education classes, and that he be mainstreamed for art, music and physical education. The fifth CSE member, who was the child's fourth grade teacher, recommended that respondent place the child in the Norman Howard School. The CSE again recommended that the child receive one hour per week of occupational therapy and one-half hour per week of individual counseling. It also recommended that testing modifications be used with him.

        The CSE did not identify a specific placement for the child. Petitioners were informed that they would be notified of the child's new placement during the first week of June, 1995. Although the record does not include any written notice of a specific placement, respondent represented at the hearing in this proceeding that the placement would be in a "blended" class in respondent's School No. 23. The record reveals that respondent proposed to place the child in a program involving fifteen regular education fifth grade children, fifteen regular education sixth grade children, and fifteen special education children. The special education students, who would be at either the fifth or sixth grade level, would be classified as other health impaired, learning disabled, or speech impaired. The forty-five children were to be instructed in three classrooms, two of which were on the second floor of the school, and the remaining class was in the basement. The regular education and special education children would be grouped by skill level and academic need for instruction in the various subjects in the curriculum, and would move between the three classrooms throughout the day. The size of the group of children taught by the two regular education teachers would vary, while the group instructed by the special education teacher would not exceed fifteen children. The three teachers would determine the placement of each child in one of the three instructional groups for each subject. There was no assurance that a child with a disability would necessarily receive instruction from the special education teacher in any subject. Respondent's special education supervisor testified that the blended class program had begun in the 1994-95 school year, and that the teachers had not been provided with in-service training to prepare them to teach in the program.

        By letter dated June 2, 1995, petitioners requested that an impartial hearing be held to review the CSE's recommendation. The hearing began on June 30, 1995, and concluded on August 22, 1995. At the hearing, petitioners did not contest the appropriateness of the proposed change of the child's classification to learning disabled, or the proposed change of the child's educational program to primary instruction in a 15:1 special education class. They contended that the School No. 23 blended class which had been offered to them was not consistent with the CSE's recommendation, and would not meet their child's needs. They asked the hearing officer to direct respondent to place the child, at respondent's expense, in the Norman Howard School.

        In his decision which was rendered on August 31, 1995, the hearing officer found that the proposed placement in the School No. 23 blended class would not provide sufficient structure for the child to cope with his distractibility. He also questioned whether the regular education teachers in the blended program had been adequately trained to assist the child in developing compensatory strategies. However, the hearing officer held that respondent could not place the child in the Norman Howard School, unless it lacked a less restrictive placement for him. He remanded the matter to the CSE to determine if respondent had an appropriate placement for the child.

        Petitioners assert that the hearing officer correctly determined that the School No. 23 blended class was inappropriate for the child, but that he erred in remanding the matter to the CSE. They allege that they have been advised by respondent's staff that the blended class was the most appropriate for the child, and argue that it is unlikely that respondent has another placement which would be appropriate for the child. They argue that the hearing officer found that the Norman Howard School could provide an appropriate program for the boy, and that he should have directed respondent to place the child in that private school for the 1995-96 school year.

        In its cross-appeal, respondent asserts that the record in this proceeding substantiates the appropriateness of the School No. 23 blended class to meet the child's educational needs. It further asserts that the blended class would be the least restrictive environment for the child, and requests that the hearing officer's decision be annulled.

        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 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a][1]). An appropriate program begins with an IEP which accurately reflects the results of the evaluation 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 this instance, the parties are in general agreement about the provisions of the child's proposed IEP for the 1995-96 school year. The IEP indicates that the boy has average to high average cognitive skills, and that he is an auditory learner, who may have vision related fine motor difficulties. It also indicates that the child benefits from having extra time to complete tasks, and he requires periodic refocusing to remain on task. Although there is evidence to the contrary in the record, the IEP describes the boy as a child who works well independently, and that he transitions well between tasks and classes. The Principal of School No. 1 testified that the child had difficulty working independently, and the child's third grade teacher testified that the child had difficulty transitioning between tasks. The child's difficulty with transitioning appears to be related to his organizational deficits and his ADD.

        The boy's IEP indicates that an annual goal to increase his ability to read and comprehend at the appropriate grade level would be achieved through the use of specialized techniques to improve his decoding skills, increase his sight work vocabulary, and abstract information from texts. His IEP also provides that his reading comprehension skills would be developed through verbal presentations in a quiet environment, with redirection and refocusing to task, repetition, and the use of "Read to the Middle Techniques," visual cues and prompts. The child's spelling skills would be increased with the use of compensatory strategies for visual perception deficits, and his written expression would be improved with the use of webs/cognitive mapping as a framework for his writing.

        Petitioners' child had previously been exposed to special education techniques and strategies in his resource room program, but he had been unable to transfer the skills which he learned in that program to his regular education program. In essence, the CSE determined that the child required a more intensive program of services in which specialized techniques and strategies could be integrated with the child's grade level curriculum. The CSE also determined that the child required instruction in a more distraction-free setting, with a smaller child to adult ratio, than could be provided in the typical regular education class.

        The initial issue in respondent's cross-appeal is whether the blended class placement as described in the record is consistent with the CSE's recommendation. I find that it is not. I note that the CSE chairperson testified that the child required some structure, the same teaching strategies, and minimal distraction throughout the school day. The "cadre" member of the CSE opined at the hearing that the CSE had not recommended a "blended," or inclusionary program for the child to receive instruction in academic subjects. The school psychologist member of the CSE opined that the CSE had not recommended an inclusion class, and that an inclusion class might be detrimental to the child because of his distractibility.

        I further find that respondent failed to demonstrate how the proposed placement would afford the child a reasonable opportunity to achieve his IEP annual goals. Respondent presented virtually no information about the special education portion of the blended classroom program at School No. 23. The limited information in the record about the instruction which is provided in the proposed program was suggestive of a traditional regular education program. Respondent did not explain how that program would address or accommodate the child's auditory learning style, or his need to develop compensatory learning strategies. Therefore, I find that the hearing officer correctly determined that the proposed placement in Public School No. 23 was inappropriate, and that respondent's cross-appeal must be dismissed.

        The remaining question to be determined is whether the matter should be remanded to the CSE to determine if there is an appropriate program to meet the boy's needs, as the hearing officer directed, or whether the record supports the conclusion that the child should be placed in the Norman Howard School, as petitioners urge. With regard to the hearing officer's directive, I note that there is little dispute about the appropriateness of the program which the CSE recommended on May 24, 1995. At the hearing, various CSE members testified that the CSE is not involved with specific placement decisions, which are in fact made by respondent's placement office. Therefore, it does not appear that the CSE has a further role to play in the matter.

        There is another reason why I believe that the matter should not be remanded to the CSE to consider another program for the child. The record reveals that there is a substantial discrepancy between the child's verbal and non-verbal ability. The school psychologist who evaluated the child on two occasions testified that the disparity between the child's achievement of the highest possible score on the vocabulary portion of one IQ test and his score in the borderline to mentally retarded range on a test of non-verbal ability was unusual, even among learning disabled children. Although he acknowledged that the child had made progress in reading while in respondent's program, the school psychologist testified that the child still had a substantial disability with regard to acquiring information visually. The school psychologist also testified based upon his knowledge of the child, that the boy's needs were so severe that an inordinate amount of staff time would be required in order for respondent to address the boy's needs. The school psychologist opined that the child should be placed in the Norman Howard School, as did the Principal of School No. 1 and the child's third and fourth grade teachers. The Principal was especially concerned about the child's increased frustration and anger at being unable to perform academically at the level of his peers. The fourth grade teacher testified that a number of learning disabled children whom she had taught during her long career in respondent's schools had gone on to respondent's self-contained 15:1 classes, and that none of those children had the ability of petitioners' child. She opined that respondent's self-contained classes would not be appropriate for the child. The child's third grade teacher, who is also a veteran teacher, expressed doubt about the ability of respondent's special education program to meet the child's unique needs. The third grade teacher testified that the child needed to be challenged in a learning environment in which he could internalize and functionally use compensatory techniques.

        The record reveals that the Norman Howard School serves approximately 90 children, most of whom are learning disabled, in grades 5 through 12. The Director of the Norman Howard School testified that the private school's students have at least low average IQs, and some areas of strength. The Norman Howard School provides a "strategy curriculum," which allows the students to compensate for their learning deficits, or to bypass certain areas of weakness, while still keeping up with the curriculum for their grade level. He further testified that the teaching staff uses a multi-modal approach to instruction, and provides both compensatory strategies and remediation to the students. The Director testified that the compensatory strategies and other specialized techniques are embedded in the curriculum content which the students receive.

        Respondent must place each child in the least restrictive environment for that child. However, its primary responsibility is to find an appropriate placement for the child (Briggs v. Bd. of Ed. of the State of Connecticut, 892 F. 2d 688 [2d Cir., 1989]). There is no evidence of another suitable placement for the child in respondent's schools. Upon the record before me, I find that placement of the child in the Norman Howard School would be appropriate, and would be the least restrictive environment for the child.

THE APPEAL IS SUSTAINED. THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the hearing officer's order remanding this matter to the CSE is annulled; and,

IT IS FURTHER ORDERED that respondent shall contract with the Norman Howard School for the education of petitioners' child for the remainder of the 1995-96 school year, within 30 days after the date of this decision.