96-022

        Petitioners appeal from the decision of an impartial hearing officer which upheld the recommendation by respondent's Committee on Special Education (CSE) that petitioners' daughter be enrolled in a self-contained special education class in respondent's Ontario Elementary School, during the 1995-96. The hearing officer denied petitioners' request that respondent continue the child's placement in a State-approved private school. The appeal must be sustained.

        Petitioners' daughter, who is eleven years old, was diagnosed as having Down Syndrome, and a cardiac (vascular septal) defect, shortly after her birth. Her cardiac condition has reportedly been stable for a number of years, and has not required medication or treatment. The child reportedly has no limitations upon her physical activities. Within a few months after her birth, the child and her parents participated in a parent/infant stimulation program of the Mary Cariola Children's Center, in Rochester, New York. The child began attending a daily preschool program at the Mary Cariola Children's Center, at the age of two.

        An integrated functional assessment of the child was performed in October, 1989, when she was four years and nine months old (57 months). Her socialization and play skills were found to be at the 40-41 month level. The child's adaptive reasoning skills were reported to be at the 34-35 month level. Her receptive language skills were at the 30-31 month level, while her expressive language skills were at the 28-29 month level. The child's speech was described as being relatively unintelligible to the unfamiliar listener. The child's gross motor skills were reported to be at the 29 month level, while her fine motor skills at the 36 month level. The child was reported to have reasonably good self-help skills.

        In April, 1990, as the child was preparing to make the transition to kindergarten in the 1990-91 school year, she was evaluated by a psychologist at the Mary Cariola Children's Center. The psychologist reported that the child had achieved an estimated IQ score of 49 on one intelligence test, and an estimated IQ score of 58 on a second intelligence test. However, the psychologist cautioned that the latter IQ score was probably an overestimate of the child's ability. Estimated scores were given because the child could not complete a large number of subtests. The child achieved a composite adaptive behavior score equal to that of a 29 month old child, which the psychologist reported was consistent with the results the child achieved on the intelligence tests. The psychologist also reported that the child's difficulties in school included distractibility, low frustration tolerance, and non-compliant behavior. However, the child was reportedly easily redirected. She recommended that the child be placed in an educational program intended for children with mild global developmental delays, in which the development of the child's communication and functional skills would be emphasized.

        On May 23, 1990, respondent's CSE recommended that the child be classified as mentally retarded. The child's classification has not changed, and is not disputed in this proceeding. The CSE also recommended that the child be enrolled for kindergarten in the School for the Holy Childhood (SHC), a private school which has been approved by the State Education Department as a school for children with disabilities, and which is located in Henrietta, N.Y. At the hearing in this proceeding, the CSE chairperson testified that the child's transportation to the SHC required about one hour, each way. The CSE meeting minutes reveal that petitioners preferred the SHC to an alternative placement in a program of the Wayne-Finger Lakes Board of Cooperative Educational Services (BOCES), which was located in the Williamson Primary School. The minutes further reveal that petitioners were made aware that the CSE might recommend that the child be placed in respondent's special education program, three or four years later, when she reached an appropriate age for that program. The CSE also recommended that the child receive individual speech/language therapy three times per week, and occupational therapy twice per week. Petitioners accepted the CSE's recommendation.

        The child remained in the SHC, during the ensuing years. In February, 1993, a psychologist in the SHC completed a triennial psychological evaluation of the child. The psychologist reported that the child had achieved an IQ score of 49, with relative strengths in visual motor imitation, including awareness of spatial relationships, knowledge of social convention relating to aesthetic judgement, visual discrimination, remote visual memory, and the ability to associate objects with their respective functions. The child exhibited relative weaknesses in verbal conceptual and analogous reasoning, and in social judgement. The child was unable to differentiate left from right, and was described as having a limited awareness of hazards. The child was further described as unable to tell time, name letters, or print her name, but she could trace letters. She achieved an age equivalent score of three years and eight months in the communication portion of a developmental profile. When evaluated, she was eight years and one month old. The psychologist reported that the child could convey her wants and needs, and could follow two and three-step verbal directions. The child achieved an age equivalent score of four years and eight months in the self-help portion of the development profile. She was able to dress independently, and to eat with minimal assistance. In the social-interpersonal portion of the developmental profile, the child achieved an age equivalent score of three years and six months. She was described as nonaggressive, but occasionally antagonistic, towards her peers, and as not initiating involvement in group activities. She was reportedly willing to share and take turns during structured activities.

        In an occupational therapy evaluation also completed in February, 1993, the child achieved age equivalent scores of two years and nine months in gross motor skills, and three years and three months in fine motor skills. The evaluator reported that the child's improvement had been inconsistent, and that her motivation was low.

        Two months later in April, 1995, a speech/language evaluation was completed. The evaluator reported that the child's speech intelligibility was fair. She achieved age equivalent scores of three years and four months in receptive language, and two years and seven months in expressive language. The evaluator noted that the child's overall communication and social skills were areas of weakness and that school programming and speech/language therapy had been focused upon those areas for the three years preceding the evaluation. The evaluator reported that the child interacted with adults who were known to her, and, in limited ways, with selected peers. The evaluator noted that the results of an audiological screening which had been performed in October, 1992 were considered to be unreliable, and that some signs of at least a mild hearing impairment had been observed. She urged that the child receive a full audiological evaluation.

        The CSE met with petitioners in May, 1993, to review the child's progress during the 1992-93 school year, and to make its recommendation for her program and placement during the 1993-94 school year. The minutes of the CSE meeting indicate that petitioners were pleased with their daughter's progress, and they expressed the wish that she could remain in the SHC through the twelfth grade. The CSE recommended that the child remain in the SHC, and be provided with speech/language therapy and occupational therapy, during the 1993-94 school year. However, the CSE meeting minutes reveal that the child's return to respondent's schools for the 1994-95 school year was discussed.

        The child was re-evaluated by her speech/language therapist, in March, 1994. The therapist reported that the child, who was nine years and three months old at the time, had achieved age equivalent scores of two years and seven months in receptive language, and one year and eleven months in expressive language. The intelligibility of her speech was described as "fair" for familiar listeners, and "poor" for unfamiliar listeners. The therapist indicated that the child's spontaneous utterances were typically one or two words in length. She described the child as pleasant and engaging, and as a child who enjoyed interacting with others. The therapist reported that the child's pragmatic language skills had immensely improved in the course of the year.

        On May 26, 1994, the CSE conducted its annual review of the child. For the 1994-95 school year, the CSE recommended that the child be enrolled in a special education class with a 12:1 child to adult ratio, located in respondent's Ontario Elementary School. It also recommended that petitioner's daughter receive individual speech/language twice per week, and group speech/language five times per week, as well as occupational therapy for 60 minutes per week. At the hearing in this proceeding, the CSE chairperson testified that the CSE believed that the child should have been enrolled in respondent's class because she had reached the appropriate age for the class. However, petitioners reportedly opposed the proposed placement of their child in the Ontario Elementary School.

        Although the CSE had not previously recommended that the child be enrolled in a twelve-month program, she was transported by respondent to the SHC, which provided instruction to her, during the Summer of 1994. The CSE chairperson testified that the child had been transported to the SHC by respondent as the result of a communication error, but that the CSE had subsequently approved of the child's instruction during the Summer of 1994. On August 30, 1994, the CSE changed its previous recommendation, and recommended that the child remain in the SHC for the fourth grade during the 1994-95 school year. The minutes of the CSE indicate that the CSE voted to recommend that the child continue to attend the SHC, in order to avoid holding an impartial hearing.

        In April, 1995, the child's speech/language therapist in the SHC noted that there had been a series of audiological screenings without reliable results. She recommended that a complete audiological evaluation be performed. On a test of her speech articulation, the child had achieved an age equivalent score of two years and five months. Her age equivalent scores for receptive and expressive language were two years and ten months, and two years and six months, respectively. The therapist reported that the child independently and spontaneously used greetings and closings with school staff and her peers, but that her limited language skills interfered with her ability to maintain extended verbal interactions. The therapist also reported that the child used sign language to augment her verbalizations. She recommended that the child continue with a total communication approach.

        In April, 1995, the CSE chairperson sent a draft copy of the child's individualized education program (IEP) for the 1995-96 school year to the child's SHC teacher, with a request that the teacher annotate the draft IEP with her recommendations. Petitioners formally requested that the CSE meet to discuss a twelve-month program for the child, to include instruction at the SHC during July and August, 1995. The CSE met with petitioners and representatives of the SHC on May 18, 1995. The child's teacher in the SHC reportedly advised the CSE that the child could count to 30, recognized numbers up to 20 independently, and was learning the concepts for the numbers 1-5. She indicated that the child needed to be watched very closely because she could wander. The teacher recommended that the child receive a twelve-month instructional program. Petitioners and the CSE reportedly reviewed the child's proposed IEP, and a profile of the students who were expected to be enrolled in a special education class located in respondent's Ontario Elementary School. The CSE reportedly discussed whether the child required a twelve-month program of instruction.

        For the 1995-96 school year, the CSE recommended that the child be enrolled in respondent's 12:1+1 special education class in the Ontario Elementary School, with the SHC to provide instruction to the child during the Summer of 1995. The child's IEP indicated with respect to the child's participation in respondent's regular education program: "Explore opportunities for mainstreaming". The CSE also recommended that the child receive speech/language therapy in a group, five times per week, and individually, twice per week. It further recommended that she receive occupational therapy for 90 minutes per week. The IEP which the CSE prepared indicated under "other comments," that an audiological evaluation would be performed, an orientation plan would be developed, and that counseling would be provided during the transition period. At the hearing in this proceeding, the CSE chairperson testified that respondent had intended to provide counseling to the child, and to her family, in connection with her transition from the SHC to the Ontario Elementary School.

        The child attended the SHC during the Summer of 1995. However, her parents opposed the CSE's recommendation that she attend the Ontario Elementary School in the Fall of 1995. The CSE met again, at petitioners' request, on August 28, 1995. In a letter to respondent, dated August 17, 1995, petitioners expressed the hope that their disagreement with the CSE could be resolved at the CSE meeting, but asked that an impartial hearing be held. Petitioners attended the August 28, 1995 meeting with the child's teacher, and an administrator from the SHC. The CSE briefly reviewed the IEP which had been prepared at its May meeting. It amended the description of the child's physical development to include the statement that she had a cardiac condition since birth, but had no physical limitations. It also amended the description of the child's physical management needs to indicate that her fluid intake needed to be increased on hot days as a result of her heart condition, and that she should be monitored for possible upper respiratory infection and fluid buildup in her ears. The CSE reportedly discussed the child's placement with petitioners. It ultimately affirmed its May recommendation that the child be enrolled in the special education class in the Ontario Elementary School, for the 1995-96 school year. The child has remained in the SHC during the 1995-96 school year, pursuant to the "pendency" provisions of Federal and State law.

        In November, 1995, the child's triennial psychological evaluation was performed in the SHC, by respondent's school psychologist. The school psychologist reported that the child had achieved an estimated composite IQ score of 36. She cautioned that the child's very low scores on certain subtests were likely to be unreliable, and reported that the child was not able to correctly respond to any item assessing her short-term auditory memory. She noted that the child's low performance on certain subtests may have been the result of her distractibility, and possible receptive language difficulties. With respect to the latter, she questioned whether the child's hearing acuity had affected her performance. The psychologist reported that the child's language skills were generally at the 3 year old level. Using information provided by the child's teacher, the school psychologist assessed the child's adaptive behavior. She reported that the child's ability to cope with natural and social demands of her environment was in the average range for individuals with mental retardation. Her adaptive skills were found to be slightly higher than her assessed cognitive level, and were at or near the level of a four-year old child. She reported that the child's sensory and motor abilities were most similar to those of the average eleven-year old child. She described the child's social adjustment as being within the superior range, when compared to other children with mental retardation, but noted that the child had not mastered any money skills. In summary, she indicated that the child's performance placed her within the moderate range of mental retardation, with a relative strength in vocabulary, and a relative weakness in short-term memory. Adaptively, the child was found to be functioning in the average range, when compared to others with mental retardation, (at approximately the four-year old level). She recommended that the child receive an auditory examination.

        The hearing in this proceeding began on December 18, 1995, and ended on January 26, 1996. At the hearing in this proceedings, two of respondent's special education teachers who had observed the child in her class in the SHC in 1994, and in the proposed class in the Ontario Elementary School which the child had visited in 1994, opined that she could be appropriately educated in the class which the CSE had recommended. Respondent introduced a profile of the children who were in the recommended class, as of September, 1995. Three of the seven children had been classified as mentally retarded, while the remaining four had been classified as multiply disabled. An eighth child entered the class during the school year. The IQ scores of the children ranged from 42 to 67. Their reading skills ranged from readiness to the mid-first grade level, while their mathematics skills ranged from readiness to the mid-first grade level. The age range of the children was 37 months, i.e., one more than authorized by regulation (8 NYCRR 200.6 [g][5]). However, the record reveals that respondent had obtained a written waiver from the State Education Department.

        The child's primary teacher in the SHC and her speech/language therapist testified that the child had great difficulty making adjustments to new adults and peers in her world. The child's SHC teacher testified that the child could not sit still at a desk, and required constant refocusing during group activities. She opined that the children in the class recommended by the CSE were functioning at a higher level than petitioners' child, and that the child required a twelve-month instructional program because her skills faltered when she was not in school. The child's speech/language therapist also opined that the child should be provided with a twelve-month program because the child needed a certain amount of time to review concepts previously learned when she returned to school after vacations.

        The hearing officer rendered his decision, on March 1, 1996. While acknowledging that petitioners had strong reservations about their child's ability to function in a school which non-disabled children also attended, the hearing officer noted that under Federal and State regulations respondent was required to offer the child a placement in the least restrictive environment (34 CFR 300.550; 8 NYCRR 200.6 [a] [1]). He opined that "the petitioners have acted in violation of State and Federal regulations involving the education of their daughter", and that "there is culpability on the Respondent's part for having allowed this matter to reach this stage in [the child's] education." He directed the parties to immediately agree upon an IEP for the child, and he further directed that the child be immediately transferred to an appropriate special education class within the Ontario Elementary School.

        Petitioners object to the hearing officer's characterization of them as having acted in violation of State and Federal regulations. I agree with them to the extent that it is respondent's duty to place the child in a manner which is consistent with those regulations. They also contend that the hearing officer ignored the relevant issues which they presented concerning the appropriateness of the educational placement which the CSE recommended. They challenge the adequacy of the child's IEP, as well as the hearing officer's findings with respect to the concept of least restrictive environment.

        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 CSD 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 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).

        At the outset, I note that petitioners attack the child's IEP on the ground that it failed to include a recommendation for a program during the Summer of 1996. I find that their position is without merit. When originally adopted in May, 1995, the IEP was intended to cover the period from July 1, 1995 through June 30, 1996. It indicated that the next annual review would occur in the Spring of 1996. Although the IEP was revised in August, 1995, the CSE was not required to extend the IEP until twelve months after its August meeting.

        Petitioners contend that the child's IEP does not adequately and accurately identify her levels of functioning and her needs. With regard to the child's "academic descriptors", petitioners assert that the IEP information was generally derived from what her SHC teacher had provided to the CSE. However, they argue that more information should have been obtained, because the IEP did not describe the precise levels of the child's reading, writing and arithmetic skills. I disagree with their assertion. First, I note that the SHC teacher opined that the use of standardized tests to provide this kind of information would be inappropriate. Moreover, I note that the IEP descriptors, as well as its annual goals and short-term objectives were taken from information which the SHC teacher had provided. Indeed, the teacher testified at the hearing that she had not objected to the descriptors during the CSE meetings. I find that the child's levels of performance and individual needs were accurately described in her IEP, based upon the information which the CSE had before it.

        Petitioners assert that the CSE should have provided an audiological evaluation of the child, as indeed the school district psychologist recommended after conducting her November, 1995 triennial evaluation of the child. They also assert that the results of that evaluation suggest that the child is functioning at a lower level than the children in the recommended class. Respondent was not required to have the child's triennial evaluation performed, until early 1996. However, the Federal regulations implementing Section 504 of the Rehabilitation Act of 1973 require that a child be evaluated before there is any significant change in the child's placement (34 CFR 104.35 [a]). I find that the proposed transfer of this child from the SHC to the Ontario Elementary School is a change of placement, for which respondent's CSE should have had an evaluation performed. In this instance, the triennial psychological evaluation was performed in November, 1995, two months after the child was supposed to have enrolled in the Ontario Elementary School. Moreover, the results of that evaluation reveal that there are serious doubts about the reliability of the cognitive testing results. I must also note that the testimony of the child's teacher in the SHC, with regard to the child's functional level and adaptive behavior, was at serious variance with that which the school psychologist had reportedly obtained from the teacher, and reported.

        Upon the record before me, I find that respondent has not met its burden of proof with respect to the appropriateness of the placement recommended by its CSE. I will direct respondent to have the child re-evaluated, using an alternative means of assessing the child's cognitive development. The CSE must also obtain an audiological evaluation of the child. In addition, I will require respondent to have the child observed in her current classroom during either this school year, or the Summer of 1996, in order to resolve the issues of the child's adaptive behavior, and how she actually functions in the classroom. With the information which it obtains from the child's re-evaluation, the CSE must determine what is the least restrictive environment in which the child can achieve her IEP goals, and what supportive services she will require to achieve her IEP goals.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is hereby annulled, and;

IT IS FURTHER ORDERED that respondent shall re-evaluate the child, in accordance with the tenor of this decision.