96-082

      Petitioner, the Board of Education of the New York Mills Union Free School District, appeals from the decision of an impartial hearing officer which found that the individualized education program (IEP) which petitioner's committee on special education (CSE) prepared for respondent's child for the 1996-97 school year was inappropriate. The hearing officer further found that the child required a more structured program to meet his educational needs than petitioner had offered to him. She remanded the matter to the CSE to consider the possible placement of the child in a residential school. The appeal must be sustained in part.

        Respondent's son is thirteen years old, and has been classified as multiply disabled because of his impaired cognitive and communicative skills. His classification is not in dispute in this proceeding. Approximately two months after he was born, the child was diagnosed as having Down Syndrome. He reportedly has a rare form of Down Syndrome, in which the observable symptoms are less pronounced. When he was evaluated at the age of two years and four months by a psychologist in the United Cerebral Palsy and Handicapped Persons Association (UCP), the child was found to be functioning at the level of a one year old child. He was estimated to have an IQ of 40-45. The UCP psychologist re-evaluated the child in March, 1988, when she estimated the child's IQ to be between 30 and 35, i.e., in the severely retarded range. The psychologist reported that the child's adaptive behavior skills were commensurate with his cognitive ability.

        The child reportedly began receiving infant intervention services from the UCP when he was six months old. In July, 1986, he began attending a UCP preschool program. The UCP psychologist noted in her March, 1988 evaluation of the child that he had continued in the UCP's toddler program, where he had reportedly made only limited progress. Although the child could participate in small group activities, he reportedly could work best with 1:1 attention. His speech/language skills were described as being at the eighteen month level, or delayed by approximately three years. The psychologist described the child's performance as being characterized by a short attention span, a high level of activity, and very primitive ways of interacting. The child had reportedly engaged in inappropriate throwing and slapping behavior while in the UCP classroom.

        When the child was approximately three years old, his parents suspected that his hearing might be impaired. A subsequent audiological evaluation of the child confirmed the parents' suspicion. In the Fall of 1988, the child was referred to the New York State School for the Deaf (NYSSD) in Rome, New York for possible enrollment in that facility's educational program. He had been enrolled in a 12:1+1 special education class with an individual aide, in the Utica public schools at the time of his referral to the NYSSD.

        In October, 1988, a NYSSD psychologist reported that the child had an estimated IQ of about 50. She noted that she had attempted to administer parts of the Leiter International Performance Scale, a non-verbal IQ test, to the child, but the child had been unable to match any colors or shapes. She described respondent's son as a quite active child who required highly structured situations with intensive adult direction. She recommended that the child be enrolled in a program for hearing impaired, mentally retarded children, with an emphasis on developing his communication, toileting, fine and gross motor, perceptual motor, and daily living skills.

        In October, 1988, respondent's son was enrolled in a 12:1+4 class in the NYSSD. He remained in the NYSSD until June, 1994. While in that facility, the child was reportedly classified as multiply handicapped (disabled) because of his mental retardation and deafness. He reportedly received physical therapy and occupational therapy to address delays in the development of his fine and gross motor skills. In December, 1991, the boy's triennial psychological evaluation was performed by a NYSSD psychologist, who reported that formal testing of the child was inappropriate. The psychologist observed the child in class, and interviewed the child's teacher to obtain information for an assessment of the boy's skills on the Developmental Profile II. She had employed that test instrument in the child's previous evaluation in October, 1988. The psychologist compared the child's performance in December, 1991 with his performance in October, 1988, noting that he evidenced a growth of fourteen months in his fine and gross motor skills, and sixteen months in his self-help skills. However, his growth in social development was only two months, and his growth in academic development was only four months. In communication skills the child evidenced a growth of ten months. The psychologist noted that the child was able to use 50 words when speaking, and could sing some simple rhymes. She reported that the child appeared to be able to remain on task for longer periods of time, and that he was making slow, but steady progress. She recommended that he remain in the 12:1+4 class on a 12-month basis.

        The child's IEP for the 1993-94 school year indicated that he was to be educated on a 12-month basis in a 12:1+1 class in the NYSSD, with speech/language therapy in a group twice per week, individual physical therapy once per week, and individual occupational therapy four times per week. I note that the IEP also indicated that sign language was the child's dominant language. In a "summative statement of performance," the NYSSD multi-disciplinary team reported that the child continued to make minimal progress in the classroom, and in speech/language therapy. His expressive and receptive language skills were described as being in the 12-20 month range. He reportedly used one-word utterances. His IEP annual goals addressed the child's deficits in social, self-help, fine and gross motor, and language/communication skills. Other IEP goals set expectations for the development of his reading, mathematics, and writing skills.

        In an undated social emotional developmental report for the 1993-94 school year, the child's teacher indicated that the child did not demonstrate age appropriate behavior in his feelings about himself, relationships with others, and adjustment to the school environment. In April, 1994, the teacher indicated that the child had made minimal academic progress, however, she did not describe his academic performance in objective terms. The boy's teacher also indicated that the boy required close supervision. On his report card for the third quarter of the 1993-94 school year, the child's teacher indicated that the boy's behavior ("autistic and getting his own way") had interfered with his learning.

        The boy's speech/language therapist reported in April, 1994 that she had been unable to formally test his vocabulary skills because the boy would not attend i.e., remain on task during the test. The child's spontaneous utterances consisted of single words and/or signs. The speech/language therapist reported that the boy would follow simple single-stage commands, and would answer simple yes/no questions. Using information provided to her by the child's teacher, the speech/language therapist reported that the child's receptive and expressive skills were in the range of 18-20 months. The child's physical therapist reported in March, 1994 that the child's gross motor skills were below the 31-month level, and that he had a short attention span and showed little interest in gross motor activities.

        Petitioner's school social worker, who observed the child in class in the NYSSD on May 6, 1994, reported that the NYSSD staff believed that the child functioned as a child with hearing, and that he would respond better to a more auditorily oriented environment. She was apparently referring to the fact that the child's hearing had improved after having had a series of ear operations. I note that in the child's social history dated February 15, 1995, the school social worker reported that the child's hearing was within normal limits.

        On June 8, 1994, petitioners' CSE recommended that the child's classification be changed to mentally retarded for the 1994-95 school year, and that he be placed in a school-based BOCES 12:1+1 special education class in the Clinton Elementary School in Clinton, New York. It further recommended that the child continue to be provided with instruction on a 12-month basis, and also recommended that he receive counseling. The child's parents did not attend the CSE meeting, but reportedly did not object to the CSE's recommendation. In November, 1994, the child's teacher reported that the child was beginning to communicate his wants and needs in class, when asked. She indicated that the child was also starting to respond and interact with his teachers and therapists, although his progress was described as minimal. The teacher noted that the child appeared to enjoy school, but that his greatest area of difficulty appeared to be in less structured situations, where he engaged in self-stimulating behavior.

        The child was re-evaluated by a school psychologist in January, 1995. The school psychologist reported that it was difficult to maintain the child's interest, and that he was unresponsive to her attempts to communicate with him. The child's academic skills were not formally assessed by the school psychologist, who described the child as severely limited in his academic functioning. Although the child evidenced almost no expressive communication skills, he did use certain gestures and demonstrated an understanding of at least ten words, including "yes" and "no". The child was reportedly able to feed himself, and to perform some dressing tasks without assistance, but required some adult assistance with toileting. The school psychologist opined that the child appeared to be in an appropriate placement, and recommended that efforts to effectively manage his behavior continue.

        In June, 1995, the child's teacher reported that the child had ceased to use words and signs to express himself after the spring vacation, but that he eventually began to interact with the school staff again. The child could follow one-step verbal directions in class, and he could indicate simple choices of activities. He was reportedly very physically aggressive towards his teachers and therapists at the beginning of the fourth marking period. However his behavior and attitude towards school reportedly improved by the end of the school year.

        At the hearing in this proceeding, the CSE chairperson testified that the CSE had discussed the child's behavior at his annual review, which was held on May 31, 1995. The child's parents did not attend the annual review. The handwritten notes of that meeting (Exhibit P-7) reveal that the CSE had considered having an individual aide assigned to the child to reduce his frustration, keep him on task, and decrease his self-stimulatory behavior. However, the CSE did not recommend that an aide be assigned to him, although the boy's IEP indicated that he required individual instruction with constant prompts to limit his self-stimulatory behavior. The CSE recommended that the boy's classification be changed back to multiply disabled. Since an elementary school placement was no longer appropriate because of the boy's age, the CSE recommended that respondent's son be enrolled on a 12-month basis in a 12:1+1 BOCES special education class in the Clinton Middle School for the 1995-96 school year. It further recommended that the boy's speech/language therapy be increased to three individual and one group session per week, and that he receive physical therapy once per week, and occupational therapy twice per week. The boy's IEP included annual goals for improving his eating, dressing and grooming skills, and his preacademic knowledge and work habits. The objectives for his preacademic knowledge and work habits annual goal included developing the ability to match and sort objects by shape, color, and size, counting to 10 by rote, identifying pennies and nickels, and attending (paying attention) in group activities for periods of up to 10 minutes.

        At the request of the boy's mother, the CSE reconvened on August 29, 1995 to review the child's educational program for the 1995-96 school year. The child's mother asked the CSE to recommend that the child be placed on a 12-month residential basis in the Pathfinder Village, a facility which reportedly specializes in caring for children with Down Syndrome. Pathfinder Village, which is located in Edmeston, New York, has been approved by the State Education Department to instruct mentally retarded and multiply disabled children. A representative of the Pathfinder Village described the private facility's program to the CSE. The CSE chairperson testified that the CSE did not determine whether the Pathfinder Village would be an appropriate placement for the child because it concluded that the 12:1+1 BOCES special education class which it had previously recommended was appropriate for the child. She explained that the CSE had relied in part upon a report from the child's special education teacher during the summer, who indicated that, despite some behavioral difficulties, the boy was functioning well within the academic and social ranges of the others in his class. The CSE did revise the child's IEP for the 1995-96 school year to require that a home/school behavioral management plan be developed and used with the child.

        At the hearing in this proceeding, the child's special education teacher during the 1995-96 school year testified that respondent's son had significant management needs at the beginning of the school year. She testified that the child frequently ran around the classroom, was very vocal (screaming, singing, and humming) and liked to pinch and/or hit other children. The teacher further testified that the child engaged in self-stimulatory behavior, such as constantly chewing his fingers, and would cooperate for only short periods of time. The boy's teacher testified that by the end of the school year, the child would stay in his seat, and would participate in group activities for approximately 10-15 minutes. She further testified that the child's physical aggression had decreased, but he continued to exhibit some self-stimulation and to make inappropriate vocalizations.

        On October 19, 1995, the CSE recommended that a teaching assistant be assigned to work with the child for 195 minutes per week. His special education teacher testified that the teaching assistant had been very helpful in redirecting the child away from inappropriate behavior in the classroom. On November 3, 1995, the child's parents had met with his teacher, a school social worker, and a school psychologist to develop a behavioral management plan. They agreed to communicate with each other through the use of a home-school notebook to focus upon decreasing certain maladaptive behaviors of the boy and re-enforcing his positive behavior.

        In April, 1996, the child's teacher reported that the child more readily followed directions, and exhibited less defiant behavior in the classroom. She noted that he continued to be defiant while receiving occupational therapy and physical therapy. The teacher prepared an academic assessment of the child on April 30, 1996. She reported that the child could identify the colors orange, yellow, green, and red, and could count by rote to 20. The child was working on counting with correspondence from one to five. The teacher also reported that on occasion, the child could spontaneously identify objects and colors, and that he could recognize his first name. The boy's personal living skills had also improved. The teacher indicated that the child's behavior management plan had been beneficial to him.

        In an assessment dated April 30, 1996, the child's speech/language therapist indicated that the child continued to have numerous omissions and substitutions in his speech, but had shown progress in understanding new vocabulary words which had been introduced to him. She further indicated that the child had shown a marked improvement in using language to communicate during his speech/language sessions, and had begun to use two and three-word utterances. The speech/language therapist indicated that it was not possible to asses the child's skills with formal test instruments. However, she did administer the Non-speech Test for Receptive/Expressive Language, and reported that the child had achieved age equivalent scores of 21-24 months for receptive language, and 17-20 months for expressive language.

        On June 13, 1996, the CSE conducted its annual review of the child. His special education teacher described the child's progress to the CSE. Respondent told the CSE that the child regressed during school vacations, and she asserted that he would benefit from a more structured and consistent program. She again urged the CSE to recommend that the child be placed in Pathfinder Village. However, the CSE recommended that the child remain in the BOCES 12:1+1 class in the Clinton Middle School for the 1996-97 school year. At the hearing, it was disclosed that the child would have the same teacher, and that most of his classmates from the 1995-96 school year would be in his class for the 1996-97 school year. The boy's IEP indicated that he would continue to have the services of a teaching assistant for 195 minutes per week. The CSE recommended that the child receive individual speech/language therapy once per week, speech/language therapy once per week, speech/language therapy in a group three times per week, individual physical therapy once per week and individual occupational therapy twice per week. It also recommended that the boy receive individual counseling once per week to address issues relating to the child's sexual maturation. The child's IEP annual goal for reading during the 1996-97 school year was to improve his pre-reading skills by matching simple objects, verbally identifying familiar objects, and identifying basic colors. His IEP goal for using basic mathematic concepts including objectives of counting by rote to 20, counting by correspondence to 5, recognizing basic shapes, and recognizing certain coins. His IEP for the 1996-97 school year also included annual goals for improving his social skills, and his personal living skills.

        In a letter addressed to the CSE chairperson and dated June 20, 1996, respondent requested that an impartial hearing be held to review the CSE's recommendation. She indicated in her letter that she wanted the child to be placed in the Pathfinder Village. The hearing in this proceeding began on August 7, 1996, and ended on August 9, 1996.

        In her decision which was rendered on October 7, 1996, the hearing officer found that the child's IEP for the 1996-97 school was inadequate. She found that the child's short-term instructional objectives were overly broad, were not written in concise, measurable terms, and frequently lacked appropriate objective criteria for ascertaining the child's success in mastering the objectives. Noting that a teaching assistant had been assigned to work with the child on a part-time basis, the hearing officer had found that the child nevertheless continued to exhibit some inappropriate behavior, despite having spent a good part of the school day during the 1995-96 school year with the teaching assistant. She further found that the child's behavior interfered with his ability to benefit from education, and reasoned that he might need a residential placement in order to benefit from an educational program. Having found that the child's placement for the 1996-97 school year as recommended by the CSE did not meet his needs, the hearing officer remanded the matter to the CSE to investigate placements which might be more appropriate for the child. She opined that a residential placement with consistent programming appeared to be in the child's best interest and the least restrictive environment for him. The hearing officer directed the CSE to prepare an IEP with adequate goals and objectives which were both functional and measurable.

        Respondent asserts that petitioner's appeal is untimely because the petition was not served upon her within 30 days after the date of the hearing officer's decision. However, the Regulations of the Commissioner of Education provide that an appeal is to be commenced within 30 days after receipt of the hearing officer's decision (8 NYCRR 279.2 [b]). The hearing officer's decision was dated October 7, 1996. Petitioner asserts that it received the decision on October 9, 1996. The petition was personally served upon respondent on November 8, 1996. I find that the petition was timely. I note that petitioner asserts that the copy of respondent's answer which was served upon it was not verified. However, the answer which respondent has filed with the Office of State Review has been verified. Although petitioner's copy of the answer should also have been verified, I will not disregard the answer, as petitioner has urged me to do.

        Petitioner contends that the hearing officer ignored the weight of the evidence in finding that petitioner had failed to offer an appropriate educational program to the child. It asserts that the child made academic progress which was commensurate with his ability during the 1995-96 school year, and it argues that the hearing officer applied an erroneous standard in determining whether the placement in the BOCES 12:1+1 class was appropriate.

        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).

        Petitioner has not addressed the hearing officer's finding that the child's IEP was inadequate because the child's classroom objectives were overly general, and were not written in concise and measurable terms. The hearing officer's finding that the IEP lacked benchmarks to indicate when and how classroom objectives have been met (as required by 34 CFR 300.346 [a][5]) is also not challenged. I must note that the IEP's lack of precision with respect to the child's short-term instructional objectives and their mastery criteria goes to the heart of the dispute between the parties about the appropriateness of the child's educational program which the CSE has recommended for him. The recommended educational program is very similar to the program which the child received during the 1995-96 school year. Petitioner argues that the child made reasonable progress in that program, while respondent asserts that her son has made little, if any, progress during the two school years in which he has been in the BOCES program. The child's IEP for the 1995-96 school year, while not at issue in this proceeding, also lacked the precision which is necessary in order to objectively measure the child's progress during that school year.

        At the hearing in this proceeding, the child's special education teacher acknowledged that most of the child's gains during the 1995-96 school year had been in improved behavior, as well as some improvement in his personal living skills. Of the seven short-term objectives supporting the child's "pre-academics" annual goal for the 1995-96 school year, his teacher testified that the boy could perform the tasks required in three objectives: attending to a group task for a period of ten minutes with three verbal redirections, counting to ten by rote, and using a book appropriately (turning the pages from left to right, without destroying the book). The child had also made progress towards achieving two other objectives. In each instance, the teacher relied upon her observation of the child to ascertain the extent to which he had achieved an objective. With one exception, the objectives did not have objective mastery criteria, e.g., 80 percent accuracy. She further testified that the child could perform the tasks required in each of the five objectives supporting his personal living skills annual goal, but she did not specify the extent of his mastery of those objectives. In any event, she testified that the child needed to continue practicing those skills, as he worked on slightly more advanced skills during the 1996-97 school year.

        Respondent points out that the teacher acknowledged that the progress of the children in her class was not formally assessed because it was not the policy of the BOCES to do so. However, the BOCES is a service provider to its component school districts. It is petitioner's responsibility to ensure that the educational progress of its children with disabilities is assessed on at least an annual basis, so that the CSE has a rational basis for determining whether each child's special education needs are being met. I recognize that this child's behavior and limited ability to communicate may have increased the difficulty in formally assessing the child's progress, but I am by no means persuaded on the record which is before me that a more objective assessment of the child's accomplishments and needs could not have been obtained. Federal and State regulations require that each child's IEP include a statement of the child's present levels of educational performance (34 CFR 300.346 [a][1]; 8 NYCRR 200.4 [c][2][i]). This child's IEP did not present the required information, which is critical to have to select the appropriate special education services for him. This defect, in addition to the previously noted overly broad annual goals and imprecise short-term instructional objectives, leads me to conclude, as did the hearing officer, that the child's IEP was not adequate.

        Having compared the child's IEP for the 1993-94 school year (Exhibit D-6) with his IEP for the 1996-97 school year (Exhibit D-37), I am inclined to agree with respondent that the child has made little progress since the end of the 1993-94 school year. Petitioner's assertion that the child's progress was nevertheless commensurate with his cognitive ability would have been more persuasively made, if psychological or other expert testimony regarding a reasonably expected rate of progress had been presented at the hearing. The record which is before me does not afford a basis for me to conclude that the child made reasonable progress commensurate with his ability during the 1995-96 school year. In view of the strong similarity between the educational program which he received in that school year and the program which the CSE has recommended for the 1996-97 school year, I concur with the hearing officer's determination that petitioner failed to meet its burden of proving the appropriateness of the recommended program for the 1996-97 school year.

        Petitioner's CSE needs to reconsider the child's needs, and to more clearly distinguish between his cognitive limitations and his behavioral difficulties, especially as the latter may relate to the child's apparent frustration over his limited ability to communicate. While I do not reach the issue of the appropriateness of the child's classification (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D. N.Y., 1987]), I must note that there are numerous references in the transcript to various kinds of autistic-like behavior by the child. I recommend that the CSE consider having the child re-evaluated before it recommends another program for the child for the remainder of the 1996-97 school year.

        Petitioner also challenges the hearing officer's finding that " ... a residential program with a consistent behavior management component would appear to be required to allow this child to benefit from educational services." As noted above, each child with a disability must be placed in the least restrictive environment (34 CFR 300.500; 8 NYCRR 200.6 [a][1]). A board of education may place a child in a residential facility, if the placement is necessary to provide special education and related services to the child (34 CFR 300.302). In essence, a residential placement is appropriate under Federal or State law, only if it is required for the child to benefit from his or her educational program (Abrahamson v. Hershman, 701 F. 2d 223 [1st Cir., 1080]; Burke County Bd. of Ed. v. Denton, 895 F. 2d 973 [4th Cir., 1990]; Kerkam v. Superintendent D.C. Public Schools, 931 F. 2d 84 [D.C. Cir., 1991]; Applications of Bd. of Ed. Hoosic Valley CSD and a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 129; Application of a Child with a Disability, Appeal No. 95-33).

        The record in this proceeding indicates that the child was able to make satisfactory progress while attending the NYSSD as a day student. While the child requires a more precisely drawn IEP, it does not follow that he may only benefit from instruction if he is placed in a residential school. Indeed, the record suggests that with an effective behavior management plan in school, the child may reasonably be expected to benefit from instruction in a day placement. At the hearing, respondent expressed the concern that her son significantly regressed over extended holidays. Although the child's special education teacher testified that she occasionally observed signs of regression in the child after a long weekend, she further testified that the child's regression was not unusual, and was quickly overcome in a matter of two or three days. To the extent that the hearing officer's decision may be construed as directing petitioner to place the child in a residential school, I find that the decision is not supported by the record. However, I will remind petitioner that the requirement that a child be placed in the least restrictive environment must be balanced against the requirement that the child receive an appropriate education (Briggs v. Bd. of Ed. of the State of Connecticut, 882 F. 2d 688 [2d, 1989]). I urge petitioner's CSE to seek the assistance of the State Education Department's Office of Special Education Services in locating an appropriate educational program for the child.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent that it found that respondent's child required a residential placement in order to benefit from his educational program.