96-073

        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 son should be educated during the 1996-97 school year in a self-contained special education class located in the James E. Allen Elementary School of the Western Suffolk County Board of Cooperative Educational Services (BOCES) in Dix Hills, New York. Petitioner challenges the CSE's recommended placement on the grounds that the CSE allegedly failed to prepare an appropriate individualized education program (IEP) for her son, and that the BOCES class was not the least restrictive environment in which the child could have been educated. The appeal must be sustained in part.

        Respondent contends that the appeal should be dismissed as untimely, State regulation requires that the petition in an appeal to the State Review Officer must be served upon the board of education, the district clerk, or the chief school officer within 40 days after a parent has received the hearing officer's decision (8 NYCRR 279.2 [a]). The record reveals that the petition was served on October 18, 1996. However, it does not reveal when petitioner received a copy of the hearing officer's decision, which was dated August 29, 1996. Respondent bears the burden of proving its affirmative defense that the appeal is untimely (Application of a Child with a Disability, Appeal No. 93-38; Application of a Child with a Disability, Appeal No. 95-1), which means that it must show when petitioner received the hearing officer's decision (Hyde Park CSD v. Peter C., Sharon C. and the State Review Officer, 93 Civ. 0250 [S.D. N.Y., 1994]). It has not done so in this appeal.

        Petitioner's son is twelve years old. He reportedly attained most of his developmental milestones within the expected age norms, but the development of his language skills was delayed. The child reportedly stopped using language at two years of age. A neurologist found that petitioner's son had significant delays in his receptive and expressive language skills. The boy began receiving speech/language therapy at two and one-half years of age. In 1987, the boy was enrolled in the Association for Learning Disabilities preschool program. Thereafter, he was briefly enrolled in the North Shore University Hospital Preschool Program. For the 1990-91 school year and the next three school years, the child attended private regular education schools. He had also received specialized instruction from petitioner in his home, since he was approximately two years old.

        In June, 1994, petitioner referred her son to respondent's CSE to recommend a placement for the boy. A school psychologist who evaluated the boy for the CSE described the child's expressive language as idiosyncratic, echolalic, and essentially unrelated to the tasks at hand. She reported that the child was untestable with either the Wechsler Intelligence Scale for Children-3rd, or the Test of Nonverbal Intelligence-2nd. The school psychologist further reported that petitioner's son had limited socialization skills, and demonstrated autistic-like behavior. Respondent's speech/language pathologist reported that the child, who was nine years and one month of age when she tested him, received age equivalent scores of four years and two months for both receptive and expressive vocabulary skills. On the Bracken Test of Basic Concepts, the child achieved an age equivalent score of three years and two months. The speech/language pathologist indicated that the child did not use language for social purposes, but that he could communicate his needs in simple, declarative sentences. An educational evaluator reported that the child's academic skills were generally at or below the first percentile, but cautioned that the test results were difficult to interpret because of his behavior during the evaluation, e.g. screaming and attempting to hit either petitioner or the evaluator.

        In September, 1994, respondent asked Dr. Barbara Wilson, the Chief of the Neuropsychology Division of the Neurology Department of the North Shore University Hospital and the director of the Hospital's preschool program which the child had briefly attended in 1990, to evaluate the child. Dr. Wilson noted that the child was being educated at home by petitioner, who was using a "Lovaas-oriented behavioral program." She reported that the boy had a profound receptive language disorder, at either the processing level, or at the comprehension level, and that he was overwhelmed by his frustration when he was unable to meet the demands of material which had been verbally presented to him. The child manifested echolalia, i.e., repetition of that which he had heard, at least some of which was unrelated to the tasks which he asked him to perform. The boy achieved a verbal IQ score of 46, and a prorated performance IQ score of 108. At the hearing, Dr. Williams explained that she prorated the test results by excluding test items which were heavily language laden. If not prorated, the boy's performance IQ score was 83. On the Raven Coloured Progressive Matrices, which also measures non-verbal cognitive ability, the child's score was reported to be consistent with his performance IQ score. The child's score on the Receptive One-Word Picture Vocabulary Test was below the first percentile, as was his score on the oral directions subtest of the Detroit Test of Learning Aptitude-2. On the Expressive One-Word Picture Vocabulary Test, the child's score was also below the first percentile. Dr. Wilson reported that the child's weak auditory memory and word retrieval skills also contributed to the deficit in his receptive language skills. She further reported that petitioner's child had a deficit in his short-term visual memory.

        Dr. Williams also tested the child's academic achievement. She reported that his reading skills were at the prekindergarten level, and that his spelling and arithmetic skills were at the beginning of the first grade level. While noting that the child could be identified as autistic, or pervasive developmental disorder- not otherwise specified, she indicated that he would be more appropriately identified as having a severe developmental language disorder. She recommended that an attempt be made to teach sign language to the child and that he be encouraged to use reading, spelling, and arithmetic computer programs in school. Dr. Williams also recommended that the child be placed in a small, structured class which was language based. She suggested that the use of medicine be considered, if the boy continued to have difficulty maintaining his attention and controlling his emotional lability. In June, 1995, Dr. Wilson interviewed petitioner to obtain information to assess the child's adaptive behavior skills. At that time, the boy was within a few days of his tenth birthday. He achieved age equivalent scores of 6.11 for communication, 6.8 for daily living, 2.0 for socialization, and 4.11 for motor skills.

        Respondent's CSE reportedly met in May, 1995 to discuss the child's placement, but decided to continue to explore placements for him. It recommended that he be provided with instruction at home as an interim measure. One of respondent's special education teachers instructed the child during the summer. The teacher recommended to the CSE that the child be placed in a structured school setting. She noted that he could concentrate on academic tasks, but he needed constant teacher prompts and guidance. The teacher also reported that the child spoke to himself frequently. On or about August 17, 1995, respondent's CSE recommended that petitioner's son be classified as speech impaired. He continues to be classified as speech impaired. His classification is not disputed in this proceeding. The CSE also recommended that the child be placed in a BOCES class with a 6:1+1 child to adult ratio in the James E. Allen Elementary School, and that he receive individual speech/language therapy five times per week.

        Petitioner did not give her consent to the child's placement in the BOCES class. Since this would have been the child's initial placement as a school-age child in a special education class, petitioner's consent was required (34 CFR 300.504 [b] [ii]). Respondent initiated a hearing to obtain a hearing officer's authorization to place the child in the recommended class (see 8 NYCRR 200.5 [b] [2]). During the pendency of that proceeding, the parties agreed to place the boy in one of respondent's fourth grade self-contained special education classes, which had a 12:1+1 child to adult ratio. An individual aide was assigned to assist the child. The child remained in that class for all of the 1995-96 school year.

        In a decision which was dated January 10, 1996, the hearing officer in that proceeding remanded the matter to respondent's CSE to further evaluate the child. She directed the CSE to perform an assistive technology evaluation to determine whether petitioner's son required the use of a computer to address his language processing and communication defaults. The hearing officer also ordered the CSE to evaluate the child's possible need for an adaptive physical education program, and to assess in greater detail the child's behavior. She indicated that the CSE should recommend a behavior modification program for him, if appropriate.

        In late January, 1996, an adaptive physical educator who assessed the child's gross and fine motor skills reported that he could not run with any measure of speed, and had difficulty maintaining a static body posture. The boy could not do push-ups or sit-ups. While he could coordinate precise hand and visual movements, and demonstrated good finger dexterity, the child was unable to perform visual tracking tasks. The educator recommended that the child receive adaptive physical education. An assistive technology evaluation was also performed in late January, 1996, by observing the child as he used a computer in his classroom, with the assistance of an aide. The child's body was reportedly in constant motion, and he inappropriately laughed out loud during the observation. Nevertheless, petitioner's son was able to work on the computer with redirection from his aide for more than 30 minutes. The boy's manual writing sample was compared to a writing sample which he had prepared on a computer in class. The evaluators suggested that the muscle tone of the child's hands might not be developed to a sufficient level to allow him to successfully use the keyboard of a computer. Nevertheless, they recommended that he continue to receive computer aided instruction, and they suggested that language based computer programs be employed.

        A BOCES school psychologist reviewed the chid's records, and observed him in his classroom in January, 1996. The school psychologist prepared a behavior management plan for the child, after analyzing the child's behavior. The child's two most educationally disruptive behaviors were reported to be physical and verbal aggression, and constantly giggling in class. The latter was thought to be motivated by the child's need for sensory (self-stimulatory) input, while his aggressive behavior was thought to be caused by the child's desire for something tangible, and to escape from doing a task. The plan which the BOCES school psychologist prepared provided that the child's teacher would chart the boy's behavior at fifteen-minute intervals, and that she would list his daily activities on an index card for the boy to remind him of her expectations for him. The boy was to receive one "reinforcer" e.g., a token, star, or food for attending to task during each fifteen minute interval. The behavior management plan also included procedures to be followed by the boy's teacher and aide when the child's behavior was inappropriate. In addition, various suggestions were made in the plan to use a positive approach with the child.

        On February 8, 1996, the CSE met to review the results of the boy's additional evaluations. Petitioner and her attorney reportedly objected to the presence of respondent's attorney at the CSE meeting, and they left the meeting.¹ The CSE reportedly adopted an individualized education program (IEP) which had been drafted by the child's teacher and respondent's Director of Special Education. The IEP provided that the child was to be educated in the BOCES 6:1+1 class, with adaptive physical education twice per week and individual speech/language therapy five times per week. The CSE indicated in the IEP that the child would benefit from a behavior modification program, but the IEP did not explicitly incorporate the behavior management plan which the BOCES school psychologist had prepared.

        On or about March 27, 1996, petitioner asked for an impartial hearing to review the CSE's recommendation. The hearing did not begin until June 21, 1996. The parties agreed that there would be little advantage in having the hearing officer review the boy's IEP for the school year which was then ending, and that the hearing should be adjourned to allow the CSE to meet with petitioner to prepare the child's IEP for the 1996-97 school year. They further agreed that the hearing officer would retain jurisdiction to resolve any dispute concerning the boy's new IEP.

        The CSE met with petitioner and her attorney on July 2 and 9, 1996. At the first meeting, one of respondent's speech/language pathologists suggested that the child's speech/language skills should be re-evaluated. The re-evaluation was completed by another speech/language pathologist on July 9, 1996, prior to the second CSE meeting. The evaluator reported that petitioner's son, who was then eleven years and one month old, had achieved age equivalent scores of 4.6 for receptive one-word vocabulary, and 3.7 for expressive one-word vocabulary. On the Test for Auditory Comprehension of Language-R, the boy achieved age equivalent scores ranging from 3.4 to 3.6. The evaluator also reported that the child had significant difficulty responding spontaneously to most "Wh" questions, and that his responses were often unrelated to the questions, or echolalic in nature.

        When the CSE reconvened on July 9, 1996, it completed the child's IEP. It again recommended that he be educated in a 6:1+1 class at the BOCES, and that he receive adaptive physical education twice per week and individual speech/language therapy five times per week. The behavior management plan prepared by the BOCES school psychologist was annexed to the IEP, as was a list of strategies of instruction suggested by petitioner's educational consultant.

        The hearing resumed on July 10, 1996. Petitioner, through her attorney, asserted that the 6:1+1 BOCES class which the CSE had recommended was not the least restrictive environment for her child. She sought a determination by the hearing officer that her son should be educated in an "inclusion" setting, i.e., a regular education fifth grade class. Although not defined by Federal or State regulation, the term "inclusion" is generally recognized to mean the placement of a child with a disability with his or her age-appropriate peers in a regular education class, in which the child with a disability will receive special education services. The child is expected to achieve at a level commensurate with his or her ability and IEP, rather than at the level of achievement of the child's non-disabled peers.

        The hearing concluded on August 16, 1996. In his decision which was rendered on August 29, 1996, the hearing officer noted that there was no dispute about the appropriateness of the child's classification as speech impaired. He found that petitioner had not challenged the appropriateness of the IEP which the CSE had prepared for the 1996-97 school year, except with regard to the placement, i.e., where the child should receive the specialized services which the CSE had recommended for him. The hearing officer also found that respondent had carried its burden of establishing that the child could not be appropriately educated in a regular education class with supplementary services and aids. He premised his decision in part upon the child's experience in respondent's 12:1+1 special education class during the 1995-96 school year, finding that the child could not benefit from the curriculum in that class because of his severe communication deficits. The hearing officer determined that the BOCES 6:1+1 class would provide the boy with an appropriate educational program in the least restrictive environment.

        Petitioner disputes the hearing officer's finding that she did not challenge her son's IEP for the 1996-97 school year at the hearing. She notes that her attorney indicated in his opening statement that petitioner was disputing the alleged omission from her son's IEP of a description of the nature and extent of the boy's need for assistive technology services, the alleged failure of the CSE to allow petitioner to participate in the development of her son's behavior management plan, and the alleged failure of the CSE to specifically provide in the IEP for the modification of the boy's curriculum. I agree with petitioner that she did raise other issues in addition to the issue of the boy's placement. However, I must note that certain of her claims regarding the training and experience of the boy's teacher and classroom aide for the 1995-96 school year, and the implementation of her son's IEP during that school year are not matters to be reviewed (see Transcript, page 81). Nevertheless, the child's experience in respondent's 12:1+1 class during the 1995-96 school year is relevant in determining the appropriateness of the CSE's recommendation for the 1996-97 school year.

        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).

        State regulation requires that each child's IEP report the child's present levels of performance and individual needs with regard to his or her academic achievement, social development, physical development, and management needs (8 NYCRR 200.4 [c][2][I]). Petitioner challenges her son's IEP on the grounds that it failed to incorporate Dr. Barbara Wilson's recommendations that the child needed to have a "communication system", such as sign language, and that he needed to become computer literate. She asserts that the IEP did not describe any specialized equipment or adaptive device which her son needed to benefit from education (cf. 8 NYCRR 200.4 [c][2][vii]), in this instance a computer to assist him in reading, spelling and arithmetic. At the hearing in this proceeding, Dr. Wilson testified that petitioner's son had a severe developmental language disorder, in that the boy had great difficulty processing incoming language, and he couldn't effectively organize his thoughts and translate them into spoken language. Dr. Wilson indicated that the child's primary need was to develop a system of communication. She urged that the boy be given a total communication program, which she indicated would typically include the use of sign language with oral language. Dr. Wilson explained that the child needed a visually based system plus speech in order to learn language, and that an appropriate program could include the use of augmentative communication devices.

        The child's IEP for the 1996-97 school year indicated that his communication disorder adversely affected his learning, and that he needed to develop his communication skills for both academic and social reasons. However, the IEP did not indicate that the child needed the total communication approach, linking the visual with the spoken word. I find that this was a significant omission because this information would be essential for the child's teachers to provide appropriate instruction to him. I am aware of the fact that the CSE chose to annex a list of teaching strategies which had been recommended by petitioner's educational consultant to the boy's IEP. While it is not necessary for an IEP to specify particular teaching techniques, it should nevertheless reveal how a child learns, so that the child will have a reasonable opportunity to benefit from the instruction which he or she is to receive. With regard to the use of adaptive equipment, I note that the boy's IEP indicated that computer assisted instruction would be provided to him to help him achieve his instructional objectives for mathematics. Dr. Wilson testified that a computer could also be used to teach language to the child. I find that the boy's IEP should have more clearly indicated that the boy was to be provided with the use of a computer.

        Petitioner does not specifically challenge the appropriateness of her son's IEP annual goals and short-term instructional objectives. In any event, I note that the goals and objectives appear to be consistent with the results which were obtained in the child's speech/language evaluation which was conducted on July 9, 1996, as well as with his teacher's description of his performance in her classroom during the 1995-96 school year.

        The primary dispute in this proceeding involves the special education services which petitioner's son was to receive in order to have a reasonable opportunity of achieving his IEP annual and short-term instructional objectives, and the setting in which those services should be provided. Both parties appear to agree that the child must develop a communication system, and that the total communication approach which Dr. Wilson recommended would be appropriate for the child. Petitioner asserts that her son could be appropriately educated in a regular education class, with supplemental aides and services or, in the alternative, he could be educated in respondent's 12:1+1 special education class with supplemental aides and services. She appears to believe that the child's special education needs could be adequately addressed in a regular education class, if he receives the services of a consultant teacher (see 8 NYCRR 200.1 [l]), and speech/language therapy.

        I have carefully considered petitioner's contentions and the testimony of her educational consultant, Ms. Beth LaKretz, but I find that the record does not support petitioner's position that her son could be appropriately educated in a regular education class, with consultant teacher services, an individual aide, and speech-language therapy. Dr. Wilson testified that the child should be educated in a small class of children having similar needs, i.e., having language deficits, in order to acquire the communication system which he lacks. She opined that the boy would be frightened and frustrated if he were placed in an age-appropriate regular education class because he could not cope with the relatively sophisticated language which would be employed in a classroom of that nature. Dr. Wilson explained that a small, language-based special education class was necessary because the boy required a high degree of adult intervention to maintain his attention and ensure that he comprehended the language which was being used in the classroom, and because he needed the simpler language used in that type of classroom.

        While Ms. LaKretz, who had briefly observed the child in school near the end of the 1995-96 school year, suggested that the boy appeared to comprehend more than he was able to demonstrate he knew, she conceded at the hearing that her opinion was not based upon the results of any objective test. She also opined that the child could benefit from an exposure to the enriched language of a regular education class. However, she acknowledged that she had not observed him model any verbal expressions of his peers in the 12:1+1 class. Dr. Wilson opined that the child lacked the comprehension and social skills necessary to model the language of higher functioning youngsters. Ms. Studley, the child's special education teacher during the 1995-96 school year, testified that petitioner's son had not modeled the behavior of the other children in her class, and that the boy had difficulty understanding the language used in her special education class. She further testified that the boy had difficulty working in a group of three students, and that he worked best when he received individual instruction.

        As petitioner notes, the relevant inquiry is whether the child can achieve the goals of his IEP with a regular education program, with the assistance of supplementary aides and 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). 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 School District, 950 F. 2d 688 [11th Cir., 1991]). 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 environment (Oberti v. Bd. of Ed. Borough of Clementon School District, 995 F. 2d 1204 [3d Cir., 1993]). However, I am persuaded by the record in this proceeding, including the video tape of the child in his 12:1+1 special education class during the 1995-96 school year, that he requires a more restrictive environment than even a 12:1+1 class in order to be afforded a reasonable opportunity of achieving his IEP annual goals and short-term instructional objectives.

        Respondent's CSE recommended that the boy be placed in a 6:1+1 of the BOCES. However, petitioner asserts, and respondent appears to concede, that BOCES had not explicitly accepted the child into its program. In the fall of 1995, the CSE submitted information about the child to the BOCES for the latter to determine whether it had an appropriate program for him. On or about June 20, 1996, the BOCES sent profiles of four of its proposed classes for the 1996-97 school year to the CSE. At the hearing, a BOCES assistant principal opined that petitioner's son could be appropriately grouped in any of the four classes described in the class profiles. I must note that two of the four classes were at their maximum enrollment, and that the assistant principal had not seen the boy's IEP for the 1996-97 school year before he began to testify. In any event, he also testified that he would need to observe the child in order to determine which specific BOCES class would be appropriate for him. In its answer to the petition, respondent asserts that petitioner has prevented the BOCES from completing its final screening of the child.

        It is well settled that a CSE's recommendation of a BOCES program prior to a decision by the BOCES that it would accept the child is premature, and does not satisfy a board of education's obligation to offer the child an appropriate educational program (Application of a Child with a Handicapping Condition, Appeal No. 92-3; Application of a Child with a Handicapping Condition, Appeal No. 92-25; Application of a Child with a Disability, Appeal No. 93-15). Absent proof that the BOCES would have in fact accepted the child into its program for the 1996-97 school year, I am constrained to find that respondent has not met its burden of proof with respect to the educational program which its CSE recommended. In view of the fact that the 1996-97 school year has now ended, I will not remand the matter to the CSE.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED,

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