96-078

       Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) of Community School District No. 21 that petitioner's daughter be placed in a self-contained modified instructional services - I (MIS-I) class for the 1996-97 school year. The appeal must be sustained

        Petitioner's daughter, who is sixteen years old, entered kindergarten in respondent's school system in 1985. She was reportedly held over, i.e., repeated the second grade, during the 1988-89 school year. The child scored below the State reference point (see 8 NYCRR 100.3 [b] [3]) on the New York State Pupil Evaluation Program tests of reading, mathematics, and writing, while in elementary school.

        In October, 1989, the child was reportedly referred by petitioner to the CSE, which two months later recommended that she be classified as learning disabled, and that she receive resource room services twice per day. Petitioner reportedly accepted the CSE's recommendation with respect to both classification and placement. At the time of the CSE's recommendation, the child was in the third grade in P.S. 212. The child continued to receive resource room services for the remainder of elementary school, and during junior high school. Her cumulative record indicates that the child received barely passing grades while in the sixth grade, but her academic performance improved slightly in the seventh and eighth grades.

        In November, 1994, when the child was in the eighth grade, petitioner requested that the amount of the child's resource room services be reduced to one period per day because petitioner believed that her daughter was missing too much academic work by attending resource room twice per day. The CSE agreed to honor petitioner's request. However, the child's individualized education program (IEP) was amended by the CSE in January, 1995, to provide that the girl would receive resource room services three times per day. Petitioner reportedly accepted that modification of her child's IEP.

        In September, 1995, the child entered the ninth grade in respondent's John Dewey High School, where she was supposed to have received resource room services for one period per day. However, she reportedly failed to attend her resource room class on a regular basis. In a progress report which was dated March 18, 1996, the child's resource room teacher noted that the girl had attended class on only 19 days since September, 1995. A student grade report which was dated March 4, 1996 revealed that the child had been absent from school for 45 days. Her report card in January, 1996 indicated that she had failed each of her courses.

        On March 7, 1996, petitioner's daughter received an educational evaluation as part of her triennial evaluation. The evaluator noted that the child was failing all of her courses because of her non-attendance in class. He reported that on the Woodcock-Johnson Psycho-Educational Battery Revised, the child's broad cognitive ability was comparable to that of an average student in the latter part of the third grade. Her short-term memory skills were reported to be at a grade equivalent of 1.9, and her long-term memory skills were reported to be at a grade equivalent of 1.8. The child's developmental level for oral language was reported to be at a grade equivalent of 3.9. The evaluator opined that the child's expressive-receptive language skills were insufficient to enable her to conduct herself effectively in a regular education program. He noted that the child evidenced difficulty with her knowledge of words, and her ability to retrieve them. The evaluator suggested that the girl would have difficulty understanding most of the words used by her teachers to explain new concepts in her classes, and that she would have difficulty using orally presented information.

        On achievement tests, the girl's developmental level for basic reading skills was reported to be comparable to that of a student at the 2.4 grade level. Her reading comprehension skills were reported to be slightly better, at a 3.8 grade level. The evaluator noted that the child was uncomfortable decoding words, and he reported that the child was only minimally able to use context to ascertain words. On a test of sustained reading comprehension, the child demonstrated difficulties with vocabulary, inference, and main idea concepts. The evaluator reported that the child could not effectively read material beyond the second grade level. The girl's overall mathematics skills were reported to be at a 5.5 grade equivalent. She was reportedly unable to do long division problems, or reduce fractions. The child's score on a test of her broad written language skills was reported to be at the 2.8 grade level. She manifested difficulties with syntax, usage, punctuation, and word substitutions in her writing samples. Her knowledge of general information was at the 3.8 grade level in science, the 4.8 grade level in social studies, and the 1.8 grade level in humanities. The educational evaluator indicated that the child's achievement was significantly lower than expected, based upon her broad cognitive ability, in the areas of basic reading skills and broad written language. He opined that the child would have great difficulty performing grade-level tasks in reading, writing, and mathematics, and recommended that serious consideration be given to placing her in a self-contained class. He provided several suggestions for accommodating the child's learning style, such as using a multi-sensory approach to instruct her in decoding words.

        On March 11, 1996, a school psychologist evaluated the child. She reported that petitioner's daughter acknowledged that she was supposed to use eyeglasses for reading and blackboard work, but chose not to use them because "they don't look good". The child indicated to the school psychologist that she wished to continue receiving resource room services. She demonstrated an ability to follow verbal directions, and was not easily distracted. The school psychologist indicated that the child tended to work better when tasks were highly structured, and had a hands-on component. Petitioner's daughter achieved a verbal IQ score of 72, a performance IQ score of 81, and a full scale IQ score of 75. The school psychologist noted that there had been a significant improvement in the girl's non-verbal IQ score since the last time she had been tested in 1992. The child demonstrated relative strength in the areas of non-verbal abstract reasoning, visual awareness to detail, and visual perception of part-to-whole relationships. She demonstrated a significant weakness in social reasoning. Although her visual recall skills were weak, the child did not manifest any sign of a visual motor integration deficit. The school psychologist reported that her interview of the child and projective tests revealed that the girl was somewhat impulsive, and did not always exercise good judgement. The child reportedly had strong nurturing and dependency needs which she believed were not being adequately met. The psychologist opined that the child required adult guidance, support, and supervision, if she were to be successful. Noting that the child claimed that her poor school attendance was due to peer pressure, the school psychologist opined that the child could also be skipping school to avoid failure. She suggested that the child could benefit from counseling to help her obtain a better understanding of her strengths and weaknesses, and to help her make more sound decisions. The school psychologist recommended that the child receive an educational program which would assist her in remembering and retrieving factual information, and in making inferences, and would teach her interpretative language skills. She recommended that an alternative to a regular education placement be considered for the child.

        On March 22, 1996, petitioner met with the educational evaluator, a school psychologist, and the child's teacher to discuss the results of the triennial evaluation. She reportedly disagreed with the suggestion by respondent's staff that the child be enrolled in a more restrictive placement. The matter was referred to the CSE which convened on March 27, 1996. Although the CSE had reportedly sent a notice of the proposed meeting to the petitioner on or about March 22, 1996, she did not receive the notice, and did not attend the CSE meeting. The CSE recommended that the child be placed in a MIS-I class in the John Dewey High School, and that she receive counseling in a group of five students, once per week. The CSE subsequently met with petitioner on April 16, 1996, at which time it again recommended the MIS-I placement, with counseling, for the child.

        At petitioner's request, an impartial hearing was held on June 7, 1996, to review the CSE's recommendation. The interim acting CSE chairperson, the educational evaluator who had evaluated the child, and a school psychologist who had not evaluated the child testified in support of the CSE's recommendation. Respondent also introduced a profile of the students in the MIS-I class which had been recommended for the child. Petitioner noted that her child had been academically successful in junior high school, and asserted that the girl had just gotten off to a poor start in high school. She asked the hearing officer not to uphold the CSE's recommendation because she believed that the child would lose her self-esteem if she were placed in a special education class. Petitioner also indicated that she would withdraw her child from school, if the CSE's recommendation was upheld.

        In his decision which was rendered on August 22, 1996, the hearing officer rejected petitioner's contention that the recommendation which the CSE made on April 16, 1996 was invalid because the CSE had previously met without her on March 27, 1996. He found that the CSE had cured the flaw in its procedure by reconvening with petitioner at the later meeting. The hearing officer found that it would be appropriate to remove the child from regular education classes in view of her inability to make any educational progress during the 1995-96 school year. He urged petitioner not to withdraw her child from school.

        Petitioner asserts that the hearing officer's decision was untimely because it was not rendered by June 21, 1996. Respondent has not addressed this issue in its answer. Federal and State regulations require each board of education to insure that decisions are made by hearing officers within 45 days after the board of education receives its request for a hearing (34 CFR 300.512 [a]; 8 NYCRR 200.5 [c] [11]). A hearing officer may grant a specific extension of time beyond the 45 day time limit, at the request of either party. The record does not reveal when respondent received petitioner's request for a hearing, nor does it reveal whether either party explicitly requested an extension of the time limit. While it was incumbent upon respondent to answer petitioner's claim of untimeliness, I find that even if the hearing officer's decision was untimely, that defect would not per se afford a basis for invalidating the decision (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 64; Application of a Child with a Disability, Appeal No. 96-49). However, I will direct respondent to insure that its hearing officers comply with the timeliness requirement in the future.

        Petitioner argues that the CSE's recommendation should be annulled because it was initially made at the March 26, 1996 meeting which she did not attend. Respondent appears to concede that the petitioner did not receive the notice to attend the March 26, 1996 CSE meeting which was reportedly sent to her on or about March 22, 1996. However, it argues that the hearing officer properly concluded that the procedural defect with regard to the March 26 CSE meeting was cured when the CSE met with petitioner on April 16, 1996. A CSE may reconsider its recommendation, and in doing so, it may cure a previous procedural defect (Application of a Child with a Handicapping Condition, Appeal No. 92-9; Application of a Child with a Disability, Appeal No. 96-30). Therefore, I concur with the hearing officer's determination that respondent's alleged failure to provide petitioner with notice to attend the earlier CSE meeting does not provide a basis to annul the recommendation which the CSE made again on April 16, 1996.

        Petitioner also challenges the CSE's recommendation on substantive grounds. She asserts that she agreed to allow her daughter to be classified as learning disabled, and to receive resource room services while in the second grade, because the child had difficulty reading. She contends however that her daughter's academic skills improved in elementary school and junior high school, with the assistance she received from resource room services. Petitioner argues that the CSE did not have an adequate basis to determine that her daughter could no longer benefit from instruction in regular education classes, with supplemental services. She also argues that respondent failed to inform her of the existence of alternative placements for her daughter, such as a work/study program.

        Initially, I note that petitioner, who is not represented by an attorney in this proceeding, asserts that her daughter is not a special education student. Having reviewed the entire petition, as well as the record in this proceeding, I do not construe petitioner's assertion as a challenge to her child's classification as learning disabled. She acknowledges that her child has benefited from resource room services. In addition, the finding by the educational evaluator that the child's basic reading and broad written language skills were significantly lower than expected for a child of her cognitive ability supports the CSE's recommendation that she be classified as learning disabled (8 NYCRR 200.1 [mm] [6]).

        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).

        The child's IEP indicated that she had severely delayed language skills which limited her ability to comprehend oral instruction, and to express herself at a level which was commensurate with her age and grade level. It also indicated that she had great difficulty decoding words, and comprehending written information. The results of the standardized achievement tests which the educational evaluator had administered to the child indicated that her basic academic skills, and her general knowledge of the subjects which she had been taught, were well below her expected grade level. However, the child's IEP annual goals and short-term instructional objectives provided that during the 1996-97 school year, the child would be expected to complete "parallel" courses at the ninth grade level in English, Spanish, biology, sequential mathematics, and the Global Studies I and II courses. The questions which I have to decide are whether the child requires primary special education to achieve her IEP annual goals and objectives, and whether the MIS-I class which the CSE recommended for her would provide her with the requisite primary special education in the least restrictive environment.

        I find that respondent has not met its burden of proof with respect to the appropriateness of the special education program recommended by the CSE for two reasons. First, I must note that despite the strong evidence of the child's special education needs which were revealed by her triennial evaluation, this child has apparently succeeded academically in prior years with the supplemental special education which she received in respondent's resource room program. The fact that she chose not to attend her resource room class, or her regular education classes, with any regularity during the 1995-96 school year is not compelling proof of the inappropriateness of supplemental special education for her. The record reveals that she also failed to regularly attend her "PSEN", i.e. remedial education class. Her grade report for the marking period which ended January 22, 1996 revealed that she never reported to her social studies, science, and mathematics classes. It is difficult to understand how the school authorities could have permitted such a blatant disregard of the attendance policies which they presumably have and enforce. At the hearing, the assistant principal for special education in the John Dewey High School testified that classes met less frequently, but for longer periods of time, than they do in other high schools, and that students in the John Dewey High School have extra time during the school day because of its flexible scheduling, either to seek assistance from teachers to cope with the academic demands of the school, or to congregate with friends in the school cafeteria. Petitioner's child apparently selected the latter option.

        Although the assistant principal's testimony may well have demonstrated that petitioner's daughter would have been more appropriately placed in the regular education program of one of respondent's more structured high schools, it did not afford a basis for concluding that the child should receive all of her primary academic instruction in a self-contained class. If the child's truancy were considered by the CSE to be a manifestation of her disability, it would be incumbent upon the CSE to address that special education need with an appropriate service such as counseling before removing her from the regular education environment. Although the CSE has now recommended that she receive counseling, in addition to being placed in the MIS-I class, I am not persuaded that respondent has demonstrated that it attempted to address the child's attendance problem in a reasonable manner, before seeking to place her in the more restrictive environment.

        The second reason why I find that respondent failed to meet its burden of proof is that there is a dearth of information in the record to demonstrate how the proposed MIS-I class would have met the child's special education needs, even if respondent had demonstrated that she required primary special education instruction. The brief testimony by the assistant principal that instructional material would be presented in a different manner in the MIS-I class, and the equally brief testimony by the educational evaluator that an MIS-I teacher would have more time to spend with the child, did not, in my opinion, demonstrate how the child's special education needs would have been addressed in the MIS-I class.

THE APPEAL IS SUSTAINED.

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