96-033

       Petitioners appeal from the decision of an impartial hearing officer which upheld the refusal of respondent's committee on preschool special education (CPSE) to recommend that petitioners' daughter receive a full-day preschool program during the 1995-96 school year. The CPSE recommended that the child receive a half-day instructional program. The appeal must be sustained.

        Petitioners' daughter became three years old in October, 1995. In August, 1995, the child's mother referred her to the CPSE for an evaluation because the child appeared to have very limited speech skills. Section 4410 (4) of the Education Law and Section 200.16 (c)(2) of the Regulations of the Commissioner of Education provide that a child referred to a CPSE shall be evaluated by an approved service provider selected by the child's parents from a list of approved service providers furnished by the board of education. Petitioners selected the League for The Handicapped, Inc., in Springville, N.Y., ("League"), to perform the evaluation.

        On August 31, 1995, the child was evaluated by a League speech/language pathologist, who reported that the child appeared to have normal hearing, and age appropriate vocal quality, pitch, and intensity. The results of an oral-peripheral examination of the child were described as being within normal limits. At the time of her evaluation, the child was 35 months old. The speech/language pathologist reported that the child had achieved age equivalent scores of 28 months for receptive language skills, and 20 months for expressive language skills. Among the things which a three year old child should be able to do, but which this child could not do, were to discriminate between "big" and "little", understand the concepts of "one" and "all", identify the color orange, imitate a tongue click, name pictures with accuracy, repeat two digits or words, and use two-three word combinations. The pathologist also reported that the child's mean length of utterance (MLU) of 1.01 was well below the expected MLU of 3.0 for a child of her age. The child's father, who accompanied the child to the evaluation, reported that the child used less than 50 words at home. The speech/language pathologist noted that the child had used 17 different words, during a 90 minute evaluation. She reported that a child of three should be able to express 300-500 words intelligibly, and opined that the child's limited use of words was evidence of a significant semantic delay. She noted that the child "over generalized" words, i.e., used the same word for multiple meanings, and that she relied upon a variety of non-verbal means to communicate. The speech/language pathologist did not formally evaluate the child's speech articulation skills. At the hearing in this proceeding, a CPSE member testified that the child's language skills were not sufficiently developed to permit the League evaluator to assess the child's articulation skills. The League speech/language pathologist recommended that the child be placed in a center-based program which would provide behavior modification and language based instruction to improve the child's attending skills and her expressive language skills. She also recommended that the child receive individual speech/language therapy twice per week, and speech/language therapy in a group, twice per week.

        On September 13, 1995, a League psychologist evaluated the child, who achieved a composite score of 87 on the Stanford Binet Intelligence Scale - 4th Edition. Although her composite score was in the low average range, the child reportedly demonstrated very low average to borderline level skills on every portion of the test, except a verbal comprehension subtest on which she successfully identified body parts. The psychologist reported that the child exhibited significant difficulties with imitation and copying skills, relating to her visual perceptual skills. The child's short-term memory skills were thought to be negatively affected by her extremely short attention span. The psychologist reported that the child required constant redirection. On the Alpern Boll Developmental Profile, the child exhibited a seven-month delay in her physical skills, because she could not hop, or use scissors. Her self-help skills were found to be age appropriate. She exhibited a seven-month delay in social skills. The psychologist reported that the child was unaware of her gender, and had little experience following the rules of games and taking turns. The child exhibited an eleven-month delay in her academic skills, which the psychologist characterized as a mild delay. The child was unable to group things by color or form, and could not use words denoting size in her oral expression. She did not understand the concept of the number 3, and could not name 20 objects in pictures. The psychologist also reported that the child evidenced a mild delay in her receptive language skills, and a severe delay in her expressive language skills. He recommended that the child receive center-based preschool special education " .. at least 4 full days/week."

        In a summary of its evaluation of the child, the League noted that a physical examination of the child in November, 1994 had revealed that she was experiencing normal growth and physical development. The League recommended that the child be enrolled in a language-based preschool educational program, with speech/language therapy. On the League's summary, opposite the term "special class," there is a handwritten notation of 5 (1/2) days, with the (1/2) appearing above the typed word "Full." However, the League program coordinator who prepared the summary testified that she had in fact recommended that the child be enrolled in a full-day program, four days per week, and the CPSE chairperson also testified that the League had recommended a full-day program for four days per week. It should be noted that a half-day program at the League runs from 9:00 a.m. to 11:30 a.m., while a full-day program runs from 9:00 a.m. to 2:00 p.m. The League also proposed seven annual goals for inclusion in the child's individualized education program (IEP), in the event that the CPSE recommended that the child receive special education services.

        The child's social history, which was taken on September 18, 1995, indicated the child's birth history was unremarkable, and that she generally achieved her developmental milestones in the usual amount of time, except for her speech. Petitioners expressed their concerns to the child's pediatrician, who reportedly advised them to wait and see how the child's speech developed. Petitioners reported that the child was using an increasing number of gestures in lieu of words, to communicate.

        On October 5, 1995, the CPSE met with petitioners and the League's program coordinator. The CPSE recommended that the child be identified as a preschool child with a disability. It also recommended that the child be enrolled in a special education class with a 12:1+1 adult to child ratio in the League, and that she receive individual speech/language therapy three times per week, and speech/language therapy in a group twice per week, for the remainder of the 1995-96 school year. The IEP included seven annual goals which were substantially the same as those which the League had recommended for the child. The IEP which the CPSE prepared for the child indicated that special education services were to be provided on a ten-month basis. The CPSE did not indicate on the IEP that the child's instructional program in the League was to be on a half-day basis, though there appears to be no dispute that the CPSE intended to recommend a one-half day program (cf. 8 NYCRR 200.4 [c][2][vi]). However, respondent indicated that the recommended program was to be on a half-day basis, on forms which it submitted to the State Education Department for funding purposes (Exhibit 5). I note that the notice of the CPSE's recommendation which was sent to petitioners (Exhibit R) referred to the speech/language therapy to be provided to the child, but omitted any reference to the proposed special education program for her.

        The representative of Erie County on the CPSE (see Section 4410 [3][a] of the Education Law) testified at the hearing in this proceeding that the CPSE had recommended that the child receive a half-day program, notwithstanding petitioners' request that the girl be placed in a full-day program. However, the CPSE agreed to reconvene 30 days after October 15, 1995, the day on which the child was to begin at the League. The county representative, who is a speech/language pathologist, testified that she and two other CPSE members observed the child for approximately 75 minutes in the child's classroom, on November 16, 1995. She further testified that the child's ability to remain on task appeared to be better than had been reported in the League evaluations. The county representative also testified that the child appeared to imitate approximately seven words which had been modeled for her. She explained that the ability to imitate words was an important part of learning to speak, and testified that she believed that the child was making progress in her half-day program in the League. The CPSE chairperson, who also observed the child on November 16, 1995, testified that the child appeared to be focused, and had responded appropriately to her teacher's directions. He further testified that the child's speech was understandable to him, and that the child appeared to have made significant progress since her evaluation in August, 1995.

        The CPSE met again on November 20, 1995. The child's mother, her teacher, her speech/language pathologist, and the League's program coordinator also attended the meeting. Although the child's mother and the League employees urged the CPSE to recommend that the child receive a full-day instructional program, the CPSE adhered to its prior recommendation. However, it recommended that the child be evaluated by an occupational therapist, and agreed to meet after the evaluation had been completed.

        The child's occupational therapy evaluation was completed by a League occupational therapist, on December 4, 1995. At the hearing in this proceeding, the therapist testified that she had needed at least two days to evaluate the child because of the girl's limited attention span and high degree of distractibility. The therapist reported that the child, who was three years and one month old at the time of the evaluation, demonstrated gross motor skills in the two to three-year old range. She noted that the child could not hop, or play catch, but was beginning to pedal a tricycle, and could throw a ball randomly. The child's fine motor skills were reported to also be in the two to three-year old range. She could manipulate toys bilaterally, manage small pegs, and cut with scissors. The girl reportedly used a static tripod grasp with crayons. With regard to the child's visual perception, the therapist reported that the child could stack cups and string beads, but inconsistently imitated vertical and horizontal strokes. However, the evaluator was unable to ascertain whether the child's inconsistency was the result of a visual perceptual difficulty, or difficulty understanding the instructions given to her. The therapist described the child as impulsive and highly distractible, and noted that the child's limited attention span had affected her functional skills. She reported that the child had exhibited a poor ability to modulate and/or identify the level of motor activity needed to perform tasks. The therapist reported that a formal sensory integration test could not be completely administered to the child because of her difficulty with following directions. Nevertheless, the therapist reported that the child exhibited some limitations in strength and posture control, as well as bilateral motor integration, e.g., fully crossing her body midline and jumping with good balance. The League's occupational therapist recommended that the child receive individual occupational therapy three times per week.

        On January 4, 1996, the CPSE met with the child's mother, her teacher, the occupational therapist who had evaluated her, and the League program coordinator. The CPSE recommended that the child receive individual occupational therapy twice per week, rather than three times per week as the evaluator had suggested. The League program coordinator reportedly raised again the issue of a full day program for the child. However, the CPSE did not recommend any change in the child's instructional program, except to provide that the child would receive individual occupational therapy for 30 minutes, twice per week, and would " ... attend the sensory integration room with an aide each morning in lieu of play time."

        On or about January 16, 1996, petitioners asked for an impartial hearing. By agreement, the hearing began on February 13, 1996. It ended on March 1, 1996. The hearing officer rendered its decision on April 4, 1996. He alluded to "numerous violations" of both Federal and State law by the CPSE, but the hearing officer identified only two deficiencies in the CPSE's practices. He found that the CPSE had not accorded petitioners the status of "equal participants" in developing their child's IEP (see 34 CFR Part 300, Appendix C, Question 26), but did not specify the basis for his finding. He further found that the CPSE in the notice of its recommendation had not complied with the State statutory requirement that:

"If the committee's recommendation differs from an expressed preference of a parent, the committee shall include in its statement the reasons why the committee recommended a program or service other than that preferred by the parent. The committee shall include in its recommendation any statement or statements provided by the parent, which the board [of education] shall consider." (Section 4410 [5][b][ii]; see also 8 NYCRR 200.16 [d][5])

        The hearing officer found that the CPSE's procedural deficiencies, while ill-advised and ill-informed, nevertheless did not afford a basis for directing respondent to provide the child with a full-day program. He noted that the child's social history revealed that she took naps of two to three and one-half hours, and he speculated that the addition of two and one-half hours of schooling for a full-day program could have a traumatic effect upon her. The hearing officer alluded to petitioners' respective work schedules, and he appeared to draw the inference that petitioners' request for a full-day program for their daughter might have been based upon their alleged need for babysitting for the child. The hearing officer indicated that he had considered the child's age, the fact that she had reportedly achieved gains in a setting which was at that point familiar to her, and the fact that the school year was nearly over, in denying petitioners' request for a full-day program. He directed the CPSE to meet with petitioners for the purpose of preparing the child's IEP for the 1996-97 school year.

        Petitioners contend that the hearing officer's decision was not supported by the record. They also contend that the CPSE's procedural errors afford an adequate basis for annulling the CPSE's recommendation. Petitioners request that the hearing officer's decision be annulled, and that respondent be ordered to immediately provide a full-day instructional program to their daughter. Respondent concedes that it did not receive written notification of petitioners' position that the child should have a full day program, or the reasons why the CPSE had recommended a program other than the one sought by petitioners. However, it asserts that it was orally apprised of petitioners' position, and that of the CPSE. It also concedes that it did not notify petitioners in writing of its determination (cf. 8 NYCRR 200.16 [e][2]). Respondent contends that the record demonstrates that petitioners were equal participants in the process of preparing their child's IEP, and that the IEP was appropriate for the child.

        Respondent bears the burden of establishing the appropriateness of its CPSE's recommendation for the child's program (Application of a Child with a Disability, Appeal No. 93-51). To do so, respondent must show that the recommended program or service 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 program or service is to be provided in the least restrictive environment for the child (34 CFR 300.550 [a]; 8 NYCRR 200.16 [h][1]; 8 NYCRR 200.6 [a][1]).

        Respondent must also demonstrate that it and its CPSE complied with the applicable Federal and State law which prescribes the manner in which a child's IEP is prepared, and the procedural due process rights which are to be accorded to the child's parents. At the hearing, petitioners, through their attorney, contended that they had not been accorded the status of equal participants at the CPSE meeting of October 5, 1995, when their child's IEP was prepared, and at the two subsequent CPSE meetings at which revision of her IEP was considered. I must note that neither parent testified at the hearing in this proceeding. However, the essence of their complaint about the manner in which the child's IEP was prepared appears to be that their views were not accorded the same weight, or consideration, as those of the CPSE members. As noted above, the official interpretation of the Federal regulations implementing the Individuals with Disabilities Act (20 USC 1400 et seq) indicates, in part, that:

"The parents of a child with a disability are expected to be equal participants along with school personnel, in developing, reviewing and revising the child's IEP. This is an active role in which the parents (1) participate in the discussion about the child's need for special education and related services, and (2) join with the other participants in deciding what services the agency will provide to the child." (34 CFR Part 300, Appendix C, Question 26)

        While referring to that interpretation, the Office of Special Education Programs of the U.S. Education Department has nevertheless opined that:

" ... we recognize that the desired consensus among equal participants is not always possible. Where an open discussion does not lead to agreement on the contents of the IEP, the local educational agency has the ultimate responsibility for crafting the IEP." (EHLR 211:436)

        The State Review Officer has repeatedly held that a CSE must give a child's parents a meaningful opportunity to interact with the CSE, but it is not obligated to accede to the parents' wishes (Application of a Child with a Handicapping Condition, Appeal No. 91-13; Application of a Child with a Disability, Appeal No. 93-40; Application of a Child with a Disability, Appeal No. 93-41; Application of a Child with a Disability, Appeal No. 93-48; Application of a Child with a Disability, Appeal No. 94-31). There does not appear to be any dispute that petitioners' preference for a full day program, and the reasons for that preference were discussed at the CPSE meetings of October 5, 1995, November 20, 1995, and January 4, 1996. There is no indication that the CPSE merely listened to petitioners' requests, and then withdrew to prepare the child's IEP without petitioners' participation (cf. Application of a Child with a Handicapping Condition, Appeal No 92-7). Absent more specific information in support of petitioners' claim, I find that it does not afford a basis for annulling the CPSE's recommendation.

        While I do not condone the CPSE's failure to specify the parents' position in the CPSE's recommendation to respondent, or the CPSE's reasons for recommending a different program (cf. 8 NYCRR 200.16 [d][5]), I credit the CPSE chairperson's testimony that respondent was aware that its CPSE had recommended a half-day program when its representative signed the State aid form (Exhibit 5) on October 11, 1995, which was the date when respondent reviewed the CPSE's recommendation. Although respondent should have provided petitioners with the requisite notices of its actions (8 NYCRR 200.16 [e][2]), petitioners have not suggested that they were unaware of respondent's actions. Under the circumstances, I find that there is no basis for determining that respondent's procedural lapses afford a basis for concluding that the child has been denied a free appropriate public education (Hiller v. Bd. of Ed. Brunswick Central School District, 743 F. Supp. 958 [N.D. N.Y., 1990]).

        Petitioners challenge the hearing officer's findings of fact, which they contend are simply unwarranted inferences. First, the hearing officer inferred that petitioners sought a full-day program for the child because of an alleged difficulty in obtaining babysitting, or child care services for her. I agree with petitioners that the hearing officer's allusion to their alleged babysitting problem is not supported by the record. The second inference which the hearing officer drew was that a full-day program for the child " ... would have a traumatic effect on her slow, but steady, progress under her current IEP", because the child's social history revealed that she napped for two to three and one-half hours per day. A child's physical needs and stamina may properly be considered in determining the appropriateness of the child's educational program. However, I find that there is no basis in the record for finding that a full-day program, which ended at 2:00 p.m., would have been too tiring, or otherwise harmful, for the child.

        The central question in this appeal is whether the amount of special education services which the CPSE recommended was appropriate for the child. That question must be answered by considering the nature of the child's special education needs and the IEP annual goals which the CPSE established for her. The record reveals that this child's expressive language skills are severely delayed. Her speech/language therapist testified that the child's morphological delay, involving the length of her utterances, was more than six standard deviations below the norm. The child's expressive vocabulary, at the time of the hearing, was approximately 25 words, while her chronological peers had vocabularies of 400-500 words. The speech/language therapist also testified that the child had a mild delay in her receptive language skills. She further testified that a child with a severe language delay, such as this child, lacked the ability to acquire speech naturally by simply imitating the speech of adults, and required intensive intervention. The child's teacher testified that the child spoke with mostly one-word utterances, many of which would be unintelligible to people who had not worked with the child. She noted that the child had difficulty being understood by her peers, and that she consequently tended to interact more with the adults in her classroom. The teacher also testified that the child appeared to be frustrated by her inability to communicate effectively.

        In addition to her speech/language deficits, the child was reported to be distractible. Her teacher testified at the hearing that the child could remain focused for approximately four minutes, before she required redirection. The teacher described the child as being extremely active, and as having poor play and interactive skills. Although the girl's self-help skills were described as age-appropriate, the teacher testified that the girl required constant supervision because she did not pay attention to what she was doing. The teacher also testified that the child had shown little improvement in her ability to remain on task, since entering her class in October, 1995.

        The IEP which the CPSE prepared for the child included seven annual goals. Two of the goals related to the child's speech/language skills in the classroom. Those goals were in addition to seven separate annual goals for her speech/language therapy. The child's other annual goals related to improving her cognitive, self-help, social, gross motor, and fine motor skills. The appropriateness of the child's IEP annual goals is not in dispute. However, the parties disagree upon whether the child would have a realistic chance of achieving those goals in the half-day program which the CPSE recommended.

        The child's teacher testified that the half-day program provided a maximum of two and one-half hours per day of contact with the child. However, the child was removed from class for 30 minutes each day to receive speech/language therapy. Two days each week, the child was also absent from class for 30 minutes to receive occupational therapy. The teacher testified that the sensory integration training which the CPSE had recommended in January, 1996, was about to be implemented, which would further reduce the amount of time the child was in class. In a progress report which she prepared on January 19, 1996, the child's teacher indicated that the child appeared to have a slow rate of learning, and required much repetition to acquire new skills. She estimated that the child was performing cognitive activities at the level of a two-year old child, with a scattering of skills up to the three-year old level. At the hearing, the child's teacher opined that the child was unlikely to acquire the readiness skills needed for kindergarten, if she remained in the half-day program. The teacher indicated that one important benefit of being in the full-day program was to provide the child with experience in following directions and remaining on task, while in a group. The child's speech/language therapist testified that enrollment in a full-day program would give the child an opportunity to practice the skills which she acquired in speech/language therapy, and to develop her ability to communicate with her peers.

        Upon the record before me, I find that respondent did not meet its burden of proof with regard to the appropriateness of a half-day instructional program for this child. The child has significant special educational needs, which the half-day program provided too little time to address. I agree with the child's speech/language therapist that the child needed the opportunity to transfer the speech/language skills she acquires in speech/language therapy into the classroom. The 1995-96 school year has, of course, ended. The CPSE's recommendation for the 1996-97 school year is not part of this proceeding. However, I will direct the CPSE to consider my finding that the child should have received a full-day instructional program at least four days per week during the 1995-96 school year, in determining what programs or services are appropriate for her during the 1996-97 school year.

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that the CPSE shall review the child's educational program for the 1996-97 school year, and shall recommend additional services for the child to address any deficiency caused by respondent's failure to provide a full-day program during the 1995-96 school year.