96-091

       Petitioners appeal from the decision of an impartial hearing officer which upheld a recommendation by respondent's committee on special education (CSE) that petitioners' daughter remain in a self-contained special education class of the Board of Cooperative Educational Services for the Sole Supervisory District of Nassau County (BOCES) in the Munsey Park Elementary School in Manhasset, New York for the 1996-97 school year. Petitioners assert that the child should be educated in the Great Neck Union Free School District. The appeal must be sustained in part.

        Petitioners' daughter, who is twelve years old, has been classified as multiply disabled (see 8 NYCRR 200.1 [mm][8]). There is no dispute about the appropriateness of the child's classification. The child was reportedly found to have developmental delays when she was evaluated at an early age by the Schneider Children's Hospital. She was reportedly enrolled in a special preschool program of the Schneider Children's Hospital for two years, until she was six years old. Petitioners' daughter reportedly entered respondent's schools in the 1990-91 school year, when she was enrolled in the first grade.

        When evaluated by school district personnel in March, 1991, the child attained a verbal IQ score of 55, and a performance IQ score of 61. She was said to behave impulsively, and to have significant delays in her speech/language skills. Petitioners' daughter was initially placed in one of respondent's self-contained special education classes. In March, 1992, the child was screened for a placement in the BOCES program because respondent's special education program reportedly did not meet her academic, emotional, or behavioral needs. One month later, the child began to attend the center-based Fern Place BOCES program in Plainview. A center-based program is a special education program which is located in a building which serves children with disabilities exclusively.

        When evaluated by a BOCES school psychologist in February, 1994, the child achieved a verbal IQ score of 58, and a performance IQ score of 55. The school psychologist reported that the girl was cooperative, and had an adequate attention span. The child's responses were occasionally perseverative, and she exhibited significant delays in her speech/language skills. The school psychologist noted that the child's spontaneous speech production was free and comfortable, but that she had some difficulty when having to express herself in response to a specific direction or question. There was a five-year delay in her receptive language vocabulary. The school psychologist further reported that the child's perceptual skills were delayed by approximately four years. She also reported that the child could identify colors and some shapes, and could recite the alphabet, and count to 30. On the Kaufman Test of Educational Achievement, the girl achieved grade equivalent scores of 1.3 in reading, 1.2 in spelling, and 1.0 in mathematics. The school psychologist reported that the child's drawings were immature, and that she tended to display a relatively restricted range of affect. Projective testing revealed that the child was uncomfortable dealing with negative emotions, and that she continued to evidence difficulty with her self-image. She was described as friendly, and having good social skills. At the time of her evaluation, the child was reportedly classified by respondent's CSE as learning disabled and speech impaired. The BOCES school psychologist recommended that the CSE consider changing the child's classification to multiply disabled.

        Petitioners' daughter reportedly remained in the BOCES Fern Place program through the 1994-95 school year. For the 1995-96 school year, respondent's CSE recommended that the child be reassigned to a BOCES special education class in the Munsey Park Elementary School in Manhasset. The Munsey Park Elementary School reportedly contains regular education classes for kindergarten through the sixth grade, in addition to the BOCES special education class, which had a 9:1+1 child to adult ratio. During the 1995-96 school year, the child received speech/language therapy in a group three times per week, and individual speech/language therapy twice per week. She also received individual occupational therapy twice per week, and counseling in a group once per week.

        Although petitioners apparently did not challenge the CSE's recommendation for the child's placement during the 1995-96 school year, the child's father reportedly indicated to respondent's CSE chairperson that he believed that the child's placement was inappropriate. He requested that a placement be found for the child in respondent's schools. The child's father asked for an independent evaluation of his daughter. The CSE chairperson made arrangements to have the child receive a neuropsychological evaluation by Dr. Richard Gallagher in the Schneider Children's Hospital. Dr. Gallagher began his evaluation in the Fall of 1995. His report of the evaluation was received by respondent on April 2, 1996.

        In his report, Dr. Gallagher indicated that he had reviewed the results of the child's two previous psychological evaluations in 1991 and 1994, the child's individualized education program (IEP) for the 1995-96 school year, and a narrative description of the child by her BOCES teacher. He reported that the girl had achieved a verbal IQ score of 54, a performance IQ score of 52, and a full scale IQ score of 49. Dr. Gallagher indicated that the IQ test results were consistent with the results from her prior evaluations. He opined that the child performed best on tasks which involved familiar information, and that she might be more successful in performing tasks when they were begun with simple requests. Dr. Gallagher reported that the child's use of language was consistent with the level of her problem solving skills as indicated on her IQ test. The girl's expressive vocabulary was below the first percentile for children her age, but she could express herself far more effectively when given the words to use, or when stimulated by pictures. Dr. Gallagher reported that the child's performance of tasks requiring receptive language skills was consistently near the upper end of the deficient range, and that she displayed a relatively adequate capacity to process sounds, follow simple directions, and gain information by listening.¹ He also reported that the child's memory skills were intact, but that she was unable to process much information for memory storage, when initially presented with information. However, once the child had learned information after several repetitions, she could retrieve it well. Dr. Gallagher reported that the child's motor coordination speed and accuracy were similar to her level of cognitive functioning, and that she did not evidence any sensory perceptual deficits. The girl's academic skills were reported to be consistent with her intellectual ability. Dr. Gallagher reported that the child's basic reading, spelling, and mathematics skills were at the late kindergarten to mid-first grade level.

        Dr. Gallagher also assessed the child's adaptive behavior, using information about the child which petitioners provided to him. The child achieved scaled scores of 69 for communication, 80 for daily living skills, and 57 for socialization, on the Vineland Adaptive Behavior Scales. Dr. Gallagher noted that the child's adaptive functioning with regard to communication and socialization at home was consistent with her cognitive skills, but that there was a discrepancy between the child's level of functioning on tests and her parents' perception of her skills. He suggested that the child's cognitive and academic deficits were not so readily apparent to petitioners, because she exhibited relatively adequate daily living skills at home. Noting that the child displayed signs of difficulty coping with social situations and the demands of pre-adolescent functioning, Dr. Gallagher reported that petitioners's daughter manifested an adjustment reaction with mixed disturbance of mood and conduct. He indicated that the child appeared to be uncomfortable with her limitations, and could be demonstrating her frustration by acting harshly toward others. Dr. Gallagher suggested that she be classified as multiply disabled, and he recommended that she remain in the Munsey Park School for the 1996-97 school year. Among the reasons for his recommendation, Dr. Gallagher indicated that the BOCES could provide the twelve-month program which the child needed, that it was easier to provide the extensive amount of related services to her in the BOCES program than in respondent's schools, that the child was not ready to independently transition from one class or activity to another as would be required in respondent's departmentalized middle schools, and that she was less likely to behaviorally adjust in respondent's 12:1 special education classes than the BOCES 9:1+1 special education class. He suggested that petitioners be provided with family counseling.

        On April 24, 1996, petitioners and their attorney met with the CSE to review the child's educational program and placement. Dr. Gallagher discussed the results of the child's evaluation at the CSE meeting. A school psychologist reported that he had observed the child in her BOCES classroom, and that the child did not interact with her peers, but was cooperative with her teachers. The CSE considered placing the child in a 12:1+1 class, with an individual aide, in respondent's North Middle School, but it concluded that it would not be an appropriate placement for her. Instead, the CSE recommended that the child remain in the BOCES program in the Munsey Park Elementary School.

        At the hearing in this proceeding, the CSE chairperson testified that he met with the child's BOCES teacher, other BOCES personnel, the child's father, and the father's attorney, on May 16, 1996, to discuss the "barriers" to be overcome before the child could return to either of respondent's middle schools. The child's teacher and another BOCES special education teacher prepared a "transition plan", which identified the areas in which the child needed improvement before she could be appropriately placed in either respondent's North Middle School self-contained seventh grade class, or respondent's South Middle School self-contained sixth grade class. On May 31, 1996, the CSE chairperson met with the child's teacher and other staff members to prepare goals for the child to achieve in order to overcome the alleged barriers to her placement in either of respondent's middle schools.

        The CSE met again on June 10, 1996, to review the child's program and placement. Petitioners' attorney attended the meeting, but they did not attend. At the hearing, petitioners' attorney stipulated that petitioners had waived their right to attend the CSE meeting. The CSE again recommended that the child be enrolled in the BOCES program at the Munsey Park Elementary School on a twelve-month basis. It also recommended that she receive speech/language therapy in a group three times per week, individual speech/language therapy twice per week, individual occupational therapy twice per week, and counseling in a group once per week. The child's IEP provided that "parent consultation" (counseling) would be provided for 30 minutes, once per month. The IEP also indicated that the child would participate in regular education for physical education, music, and lunch. The child's IEP annual goals indicated that she would be expected to develop functional reading, writing, and mathematics skills. There were eight annual goals related to improving her social/emotional development, and one annual goal for improving her activities for daily living skills.

        On June 14, 1996, petitioners requested that an impartial hearing be held to review the CSE's recommendation for their child's placement in the BOCES program during the 1996-97 school year. The hearing began on July 22, 1996, but was immediately adjourned until August 14, 1996, at the request of the parties. In his opening statement on August 14, petitioners' attorney indicated that there was no dispute as to the nature of the child's disability, and that petitioners did not have any major objection to the child's IEP goals and objectives. However, petitioners did challenge the IEP on the grounds that it did not provide the means for the girl to achieve her annual goals and short-term instructional objectives. The attorney asked the hearing officer to find that the BOCES class in the Munsey Park Elementary School which was recommended by the CSE was not the least restrictive environment for the child, and to order that the child be placed in an appropriate class in respondent's schools. The hearing continued for four more days, and ended on September 27, 1996. Petitioners chose not to go forward with their case, after respondent had presented its case, because they believed that respondent had failed to prove its case.

        In his decision which was rendered on October 29, 1996, the hearing officer held that respondent had met its burden of proving that the BOCES class recommended by the CSE was appropriate to meet the child's special education needs, and that it was the least restrictive environment for the child. He found that the child would not be appropriately placed in respondent's regular education seventh grade classes with her chronological peers, no matter what supplemental services and aides were provided. At the hearing, two 12:1 self-contained special education classes in respondent's two middle schools were discussed as possible placements for the child. The hearing officer found that petitioners' daughter could not be appropriately grouped for instructional purposes (see 8 NYCRR 200.6 [a][3]) in either of the two self-contained classes. He further found that she belonged in a group where she could compete, form peer relationships, and receive life skill and vocational training to prepare her for independent living as an adult.

        In this appeal, petitioners contend that the hearing officer's decision should be annulled because the child's IEP is inadequate and defective, and because it does not provide that the child will be educated in the least restrictive environment. Specifically, they assert that the IEP should have included an individualized behavior management plan, and that the CSE should have included objective criteria, as well as evaluation procedures and schedules for determining whether the child was achieving her short-term instructional objectives. Respondent objects to petitioners' attempt to characterize the child's IEP as defective, or faultily developed, on the ground that petitioners allegedly failed to raise these issues with the CSE, or at the hearing. It contends that the child's IEP is appropriate, and that the appropriateness of the BOCES class placement was supported at the hearing by the testimony of the CSE chairperson, the child's teacher, a BOCES psychologist, and the independent evaluator.

        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).

        With regard to respondent's argument that petitioners should be precluded from challenging their daughter's IEP in this appeal because of their alleged failure to do so at the hearing, I find that petitioners did question portions of the IEP at the hearing having to do with measuring the child's progress during the 1996-97 school year, and providing her with a specific behavior modification plan. Petitioners do not challenge the IEP's description of their child's special education needs, which I find to be adequate, in any event. At the hearing, petitioners' attorney stipulated that the girl's IEP annual goals were generally appropriate, and that petitioners had not requested significant changes in the goals (Transcript pg. 129). Nevertheless, I have reviewed those goals, because of their importance in determining the kinds of services which the child should receive. I find that the child's IEP annual goals and short-term instructional objectives are directly related to her academic, social, physical, and management needs, but that some of the goals lack the requisite specificity, e.g., "... will demonstrate functional reading skills," and "... will improve her critical thinking skills." However, the child's short-term instructional objectives supporting the annual goals are sufficiently specific to inform the child's teachers of the CSE's expectations. The objectives include mastery standards, e.g., 80% accuracy and 75% success, with respect to the various activities which the child was to perform. Although I agree with petitioners that the IEP should have included more information with respect to the evaluation procedures and schedules for determining the child's progress (see 34 CFR 300.346 [a][5]; 8 NYCRR 200.4 [c][2][iii]), I do not agree with their contention that the IEP lacked sufficiently objective criteria for determining the girl's progress.

        Petitioners' other contention with regard to the IEP is that it should have included a specific behavior modification plan. At the hearing, the child's teacher during the 1995-96 school year described the behavior modification program which she had used with her entire class. That program consisted of 10 rules to be followed in the classroom. Students who adhered to the rules earned points, which could be redeemed for prizes. The teacher also described some additional provisions of that plan which were implemented solely for petitioners' daughter, whose behavior during the latter part of the 1995-96 school year reportedly deteriorated. Petitioners' daughter had to be honest, and nice to her classmates, or else she was physically separated, or isolated from her classmates. A BOCES school psychologist, who also testified about the behavior modification techniques which had been used with the child during the 1995-96 school year, expressed some doubt about the efficacy of these behavior modification techniques.

        At the hearing, respondent's position was that the deficits in the child's social and behavioral development significantly impaired her ability to benefit from placement in a less restrictive environment. However, the IEP which the CSE prepared for the 1996-97 school year did not provide that a specific behavior modification plan would be used with the child, even though six of the eight annual IEP goals for social/emotional development were directly related to the child's behavior and interaction with others. The CSE proposed to address the child's social/emotional needs merely by placing her in a special education class, and providing her with small group counseling once per week. The child's teacher and her counselor were to collaborate in determining whether the child achieved her IEP goals. At the hearing, Dr. Gallagher, the child's independent evaluator, testified that the child needed individualized assistance, and not just a plan consisting of the rules applicable to all of the classroom. In view of the child's inappropriate behavior which respondent's witnesses described at the hearing, as well as the testimony of the child's teacher and the BOCES psychologist with regard to the limited effectiveness of their attempts to modify the child's behavior, I find that the IEP should have specifically provided for the use of a behavior management plan. To prepare an appropriate plan, the CSE must identify the specific behavior which is to be addressed by the plan, and it must also identify an effective form of reinforcement which is to be used to effect the desired change in the child's behavior. After the CSE has prepared an appropriate behavior management plan, it must determine what is the appropriate education program in which the behavior management plan and the rest of the child's IEP can be implemented.

        In addition to finding that the child's IEP must be revised, I further find that respondent did not meet its burden of demonstrating that it had offered the child an appropriate placement in the least restrictive environment. Respondent is required to maintain a continuum of alternative placements to meet the needs of its children with disabilities (34 CFR 300.551). Federal regulation also requires that the educational placement of each child with a disability be based upon the child's IEP, and be as close as possible to the child's home (34 CFR 300.552 [a][2] and [3]). However, it does not follow that a child must always be placed in the school which he or she would otherwise have attended, but for his or her disability.

        At the hearing in this proceeding, the CSE chairperson noted that the petitioners' daughter was age-appropriate for the seventh grade during the 1996-97 school year. The alternatives considered by the CSE included an inclusion placement in regular education seventh grade classes, placement in a seventh grade self-contained, 12:1 class in respondent's North Middle School, a sixth grade self-contained 12:1 class in respondent's South Middle School, and the BOCES class in the Munsey Park Elementary School. In an inclusion placement, a child with a disability is placed in a regular education class with his or her chronological peers, but the child follows a separate curriculum and is not expected to demonstrate the same level of skills on his or her non-disabled peers. Given the child's combination of special education needs, as well as the BOCES psychologist's unrebutted testimony that the girl would not benefit from incidental learning, I concur with the CSE's determination that an inclusion placement would not be appropriate for the child.

        The CSE chairperson testified that the academic levels of the children in both of respondent's self-contained 12:1 classes were approximately one to two years below grade level, i.e., at the fourth to fifth grade level. Although placement in either of those classes would appear to provide the child with a more age-appropriate environment than Munsey Park for the limited mainstreaming which the CSE recommended that she receive, it would not satisfy the State regulatory requirement that children in special education classes be grouped by the similarity of their needs (8 NYCRR 200.6 [g][2]).

        The last alternative considered by the CSE was the child's continued placement in the BOCES self-contained 9:1+1 class in the Munsey Park Elementary School. Respondent presented some proof that the child had made academic progress while enrolled in that class for the 1994-95 and 1995-96 school years, but little evidence that the BOCES class had met her social/emotional needs. I must also note that respondent's witnesses at the hearing did not address the fact that the child was no longer of an appropriate age to be placed in an elementary school during the 1996-97 school year, notwithstanding their testimony about the inappropriateness of the child's behavior when she was briefly mainstreamed with a first grade class for reading during the 1995-96 school year.

        The record does not disclose whether there were any other alternative placements, such as placement in a self-contained middle school class in a neighboring school district. However, in the absence of proof that there were no other possible placements for this child, I am not persuaded that respondent has demonstrated that the recommended BOCES class was an appropriate placement in the least restrictive environment for this child.

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that respondent's CSE shall reconsider its recommendation for the child's placement during the 1996-97 school year in accordance with the tenor of this decision, within fifteen days after the date of this decision.