97-018

         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 remain classified as learning disabled, and that the boy's placement be changed from regular education classes with resource room services to a self-contained modified instructional services-I (MIS-I) class. Petitioner appears to challenge her son's classification as learning disabled, as well as the appropriateness of the proposed placement. The appeal must be dismissed.

        Respondent argues that petitioner's appeal is untimely. State regulation requires that a parent seeking review of a hearing officer's decision serve a notice of intention to seek review upon the board of education within thirty days after receipt of the decision sought to be reviewed, and to serve the petition within forty days after receipt of the hearing officer's decision (8 NYCRR 279.2 [b]). The hearing officer rendered her decision on September 24, 1996. In a letter dated October 28, 1996 and addressed to the Appeals Coordinator of the State Education Department, and to the Chief Administrator of respondent's Impartial Hearing Office, petitioner acknowledged that she was four days beyond the thirty-day period for initiating her appeal. She asserted that she was unable to find someone to serve her papers upon respondent, and she asked whether she could serve her own papers (cf. 8 NYCRR 275.8 [a]). The petition in this appeal was served upon respondent on March 19, 1997, almost five months later. Respondent asserts that it has been prejudiced by petitioner's delay because the child has remained in what respondent believes to be an inappropriate placement for him. In her reply to respondent's affirmative defense of untimeliness, petitioner asserts that she required additional time to become familiar with the rules of practice, and that she was delayed by the death of two family members, family illnesses, and the loss of her house. Although I agree with respondent that a lack of understanding of the rules of practice would not justify a delay of almost five months in perfecting this appeal, I will exercise my discretion, and excuse petitioner's delay, in view of the extraordinary circumstances which she disclosed in her reply. In doing so, I must note that I will consider only that portion of petitioner's reply which is related to the affirmative defense of untimeliness (see 8 NYCRR 279.6).

        Petitioner's son, who is fifteen years old, was first referred to respondent's CSE in July, 1992. At that time, the child had just finished the fourth grade at P.S. 213 in Community School District 19. The boy was absent for a substantial number of days because of illness during kindergarten and the first grade. He had repeated the second grade in P.S. 213. Petitioner obtained a variance for him to attend P-236, a school which is located in Community School District 22. The boy was evaluated by the CSE of CSD 22.

        The school psychologist who evaluated the boy reported that the child's verbal IQ score and his performance IQ score were both in the low average range. He described the child as having a paucity of language understanding, and a weakness in arithmetic. In an educational evaluation, the boy achieved grade equivalent scores of 3.6 for letter-word identification, and 3.9 for passage comprehension. The evaluator reported that petitioner's son read slowly, and he had difficulty with median sounds and endings. The child achieved grade equivalent scores of 4.5 in mathematical computation, and 2.3 in mathematical application. The evaluator reported that the boy had demonstrated an inability to identify the method needed to solve word problems. She further reported that the boy exhibited a two-year delay in social studies and science, and that his receptive vocabulary skills were delayed by approximately two years. Although he could write legibly, the boy had difficulty using correct spelling, punctuation, grammar and syntax.

        The CSE of CSD 22 recommended that the boy be classified as learning disabled. It also recommended that he receive resource room services for one period per day during the 1992-93 school year. Petitioner reportedly accepted the CSE's recommendation. At the request of the child's resource room teacher, the child was evaluated in March, 1993 to determine whether he should receive speech/language therapy. The CSE recommended that he receive speech/language therapy, which was provided two times a week for 30 minutes in a group of five students. On the group administered standardized achievement tests which the child took in the spring of 1993, he achieved a score at the thirty-fifth percentile for reading, and at the twenty-eighth percentile for mathematics.

        In September, 1993, the child entered the sixth grade in I.S. 78. He continued to receive resource room services and speech/language therapy. His standardized achievement test scores in the spring of 1994 were at the sixteenth percentile for reading, and the eleventh percentile for mathematics. The boy's report cards for the second, third and fourth quarters of the 1993-94 school year reveal that he received failing grades in science and mathematics, and just barely passing grades in social studies and English.

        During the 1994-95 school year, the child was enrolled in regular education seventh grade classes in I.S. 78. He again received resource room services, and speech/language therapy. However, the boy continued to do poorly in school. At the end of the first quarter, the boy's social studies and resource room teachers indicated that he was not working up to his ability, while his English and science teachers indicated that he needed to work harder. In the spring of 1995, the child's reading skills were found to be at the thirty-third percentile, and his mathematics skills were reported to be at the ninth percentile. At the end of the school year, petitioner's son failed English, mathematics, and science, and received a 65 in social studies.

        In June, 1995, the CSE recommended that petitioner's son be placed in a MIS-I class, and that he receive speech/language therapy and counseling during the 1995-96 school year. Petitioner disagreed with that recommendation, and in September, 1995 a conflict resolution meeting was held with petitioner and the CSE. The CSE agreed to petitioner's request that her son receive resource room services, speech/language therapy, and counseling while repeating the seventh grade in I.S. 78 during the 1995-96 school year.

        In December, 1995, the child's resource room teacher requested that the child be reviewed by the CSE because he was having academic problems. In January, 1996, new psychological and educational evaluations were performed. A school psychologist reviewed the results of the child's psychological evaluation which had been performed in May, 1995. She noted that there was a significant difference between his verbal IQ score of 87 and his performance IQ score of 103. She also reported that the child's IQ subtest scores had ranged from the very superior to the mentally deficient, and that the boy had evidenced difficulty concentrating, sustaining his attention, and auditorially processing information. The school psychologist reported that the child was worried about his performance on his upcoming mid-year examinations, and that he had told her that he had no friends, and that other children picked on him. She opined that petitioner's son was an anxious adolescent who had difficulty expressing his negative feelings, and who perceived himself as a victim in a hostile world. The school psychologist also opined that the boy would benefit from placement in a small structured setting, and from counseling. An educational evaluator who evaluated the boy on January 22, 1996 reported that the child's reading scores had fluctuated between the ninth and the thirty-fifth percentile during the preceding five years, and his mathematics scores had fluctuated between the ninth and the twenty-sixth percentile during that period. She noted that when she tested the boy in June, 1995, he had achieved scores at the mid-fourth grade level for reading, and the early fifth grade level for mathematics. When she tested him in January, 1996, the boy's reading skills were on the second grade level, and his mathematics skills were on the fourth grade level. The evaluator also reported that the boy's associative language skills were at the second grade level. She noted that the boy had received failing grades for mathematics and science during the first quarter of the 1995-96 school year, and had achieved the grade of 65 in English and social studies. The boy was formally observed in class twice on January 25,1996. Both observers reported that the boy had difficulty working independently.

        On January 30, 1996, the CSE recommended that the child remain classified as learning disabled. It again recommended that he be placed in a MIS-I class with a child to adult ratio of 15:1. The CSE also recommended that the boy receive speech/language therapy twice per week, in a group of no more than eight, and counseling once per week in a group of no more than three. In February, 1996, the child was offered a MIS-I class at I-292 in Community School District 19, the district where petitioner lives. Petitioner disagreed, and a conflict resolution meeting was held on April 30, 1996. The CSE reaffirmed its recommendation for the MIS-I program with related services of speech and counseling. Petitioner indicated that she did not want her son to attend school in Community School District 19. The CSE then offered petitioner a MIS-I class in Community School District 22. Petitioner disagreed with that offer, and she was offered a MIS-I class at J-278. Petitioner requested an impartial hearing, which was held on July 16, 1996, July 30, 1996 and August 21, 1996.

        At the hearing the CSE's school psychologist opined that petitioner's son was appropriately classified as learning disabled because of the variability of his IQ subtest scores, and his difficulty sustaining attention. She testified that the boy's approach to learning was unorganized, and that he was achieving well below his potential. She opined that the MIS-I placement which the CSE had recommended would address his special education needs on a more regular basis than could happen if he remained in regular education with supplemental resource room services. She also supported the CSE's recommendation for small group counseling. The CSE's educational evaluator opined that petitioner's son needed to be educated in a small, self-contained special education class, where the pace would be slower than in a regular education class, and where he could receive the individualized instruction he required. The CSD 22 Placement Officer testified that the recommended MIS-I class would have no more than eleven students because of the size of the classroom, and that there were nine children enrolled in the class at the time of the hearing. Eight of the nine children in the class were of average intelligence, and one was below average. Five children had below average oral language skills, and eight had below average receptive and written language skills. Four of the nine read at a higher grade level than petitioner's son. Four others read at a lower level, and one was at his level. In mathematics, one was at a higher level, and the others were at a lower level than petitioner's son.

        Petitioner testified that in her opinion her son was educationally neglected, but he could not be appropriately classified as learning disabled. She explained that she had reluctantly agreed to allow him to be classified previously, so that he could obtain remedial services in the resource room program of P-236. Petitioner further testified that there were "social problems" in I.S. 78, and that her son's teachers in that school were insensitive, and had not encouraged her son. She asserted that her son's educational needs could not be met in any public school.

        In her decision dated September 24, 1996, the hearing officer found that the boy had delays of more than 50 percent in both his language and mathematics skills, despite being of average intelligence and not having any vision or hearing impairment, or emotional disturbance. She concluded that petitioner's son was appropriately classified as learning disabled. The hearing officer noted that each child with a disability must be educated in the least restrictive environment. She found that petitioner's son had regressed academically during the 1995-96 school year, while repeating the seventh grade and receiving resource room services and speech/language therapy. The hearing officer further found that respondent's witnesses had "...made a compelling case that the time to move [the child] to a small class for learning disabled children has come". She also found that respondent had demonstrated that petitioner's son would have been suitably grouped with children of similar needs and ability in the recommended MIS-I class in J. 278.

        Before reaching petitioner's substantive challenge to the hearing officer's decision, I note that petitioner alleges that the hearing transcripts are inaccurate. However, she does not offer any example of the alleged inaccuracies. Having reviewed the transcripts, I am unaware of any inaccuracy. Therefore, I find that her allegation has not been substantiated.

        Petitioner also asserts that she was not provided with a copy of a class profile describing the abilities and needs of the children in the MIS-I class until the day that the Placement Officer testified about the abilities and needs of the children, on August 21, 1996. Pursuant to 8 NYCRR 200.5 (c) (9), each party to a hearing has the right to prohibit the introduction of any evidence the substance of which has not been disclosed to the party at least 5 days before the hearing. At the hearing on July 30, 1996, the CSD 22 Placement Officer was directed by the hearing officer to obtain additional information about the abilities and needs of the nine children in the MIS-I class. The hearing officer asked the CSE to provide petitioner with a copy of the class profile prior to the next hearing date. However, the profile was not provided to petitioner before the hearing resumed. When the hearing reconvened on August 21, 1996, the Placement Officer testified about the reading and mathematics grade levels, and the cognitive skills of the children in the MIS-I class, as well as the services to be provided to them. However, the hearing officer would not allow the profile to be introduced, because of the five-day disclosure rule. While I do not condone the CSE's failure to provide petitioner with a copy of the profile prior to the hearing on August 21, 1996, I must note that the Placement Officer had previously provided much of the information in the profile during her testimony on July 30, 1996. The Placement Officer was instructed by the hearing officer to review the IEPs of the children in the MIS-I class, so that she could testify in more detail about their emotional and management needs. Petitioner was clearly on notice of the nature of the Placement Officer's testimony. I find that her due process rights were not violated.

        Petitioner contends that the CSE was improperly constituted due to the absence of a parent member. Neither the Education Law nor the Regulations of the Commissioner authorizes a CSE to prepare a child's individual education program (IEP) in the absence of a parent member of the CSE (Application of a Child with a Disability, Appeal No. 94-5). Respondent denies knowledge of, or information about, petitioner's allegation on this issue. While the IEP of January 30, 1996 does not list the members of the committee on that date, petitioner testified that at the impartial hearing that a parent member was present every time she met with the CSE (Transcript, page 30). As a result, I find no evidence to support petitioner's claim that the CSE was improperly constituted at its meeting on January 30, 1996.

        The board of education bears the burden of establishing the appropriateness of the classification recommended by its CSE (Application of a Child with a Handicapping Condition, Appeal No. 91-11; Application of a Child with a Handicapping Condition, Appeal No. 92-37; Application of a Child Suspected of Having a Disability, Appeal No. 94-8; Application of a Child with a Disability, Appeal No. 94-16). A learning disabled child is defined in State regulation as:

"A student with a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations. The term includes such conditions as perceptual handicaps, brain injury, neurological impairment, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include students who have learning problems which are primarily the result of visual, hearing or motor handicaps, of mental retardation, of emotional disturbance, or of environmental, cultural or economic disadvantage. A student who exhibits a discrepancy of 50 percent or more between expected achievement and actual achievement determined on an individual basis shall be deemed to have a learning disability." (8 NYCRR 200.1 [mm][6])

        The comparable Federal regulatory criteria for finding that a child has a learning disability are set forth in 34 CFR 300.541, which requires that there be a severe discrepancy between a child's achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematics calculation or mathematics reasoning. Although the State regulatory definition expressly refers to a 50 percent discrepancy between expected and actual achievement, it is well established that the State's 50 percent standard is the functional equivalent of the Federal severe discrepancy standard, and should be viewed as a qualitative, rather than a strictly quantitative standard (Riley v. Ambach, 668 F. 2d 635 [2nd Cir., 1981]; Application of Bd. of Ed. Connetquot CSD, 27 Ed. Dept. Rep. 272; Application of a Child with a Handicapping Condition, Appeal No. 91-15). In order to be classified as learning disabled, a child must exhibit a significant discrepancy between his or her ability and achievement (Application of a Child with a Handicapping Condition, Appeal No. 91-34; Application of a Child with a Disability, Appeal No. 94-8; Application of a Child with a Disability, Appeal No. 94-16).

        The record reveals that petitioner's son has made little progress academically, as measured by his standardized achievement test scores, since the fourth grade. Despite being of average intelligence and having received supplementary instruction in a resource room, the child continues to lag well behind his peers in reading and mathematics. His most recent test scores for reading and mathematics were well below grade level. He has repeated the second and the seventh grades and continues to have difficulty achieving passing grades in his major academic subjects. As noted by the CSE's school psychologist, the significant disparity in the boy's IQ subtest scores is indicative of a learning disability. The boy's psychological and educational evaluations strongly suggest that he has difficulty with his language skills, notwithstanding the fact that he has received speech/language therapy for a number of years. Although petitioner expresses doubt about the validity of the test instruments which were used by the CSE, I find that there is no basis in the record to find that the tests were not valid, or were inappropriately administered by the CSE evaluators. I note that the boy's low achievement test scores mirrored his actual performance in school. Upon the record which is before me, I find that respondent has met its burden of proof regarding the appropriateness of the child's classification as learning disabled.

        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 specifically challenged the IEP, which I have nevertheless reviewed. I find that it accurately reflects the results of the boy's evaluations, and that it establishes annual goals and short-term instructional objectives which are related to his educational deficits. The central question in this appeal is whether the CSE recommended appropriate special education services to address the child's educational needs. Inherent in the CSE's recommendation of a placement in a MIS-I class is a determination that petitioner's son requires primary special education instruction to achieve his IEP goals and objectives. In view of this child's prior lack of success in the regular education program with supplementary special education instruction, I find that the CSE correctly determined that petitioner's son required primary special education instruction.

        Primary special education instruction could be provided by a consultant teacher (see 8 NYCRR 200.1 [1] [1]) in a regular education class, or by a special education teacher in a self-contained class such as a MIS-I class. Given this child's especially weak reading skills, his difficulty following through on assignments, his anxiety about his performance, and his feelings about his relationship with his regular education peers, as well as his entire record of achievement in the large group instructional setting of regular education classes, I find that the least restrictive environment in which the boy can be expected to achieve his IEP goals and objectives would be a self-contained special education class, such as respondent's MIS-I class.

        State regulation requires that children in special education classes be appropriately grouped, using the criteria of levels of academic achievement and learning characteristics, levels of social development, levels of physical development, and the management needs of the children (8 NYCRR 200.6 [a] [3]). The purpose of this requirement is to ensure that the special education class teacher will be able to address the needs of the children in a single class (Matter of a Handicapped Child, 25 EDR 353). At the hearing, the Placement Officer of CSD 22 testified about the needs and abilities of the children who were to be in the MIS-I class. She was questioned extensively about them by the hearing officer, and was directed to provide additional information, after reviewing their IEPs. In particular, she was asked to ascertain whether any child in the group had significant emotional or management needs. The Placement Officer responded to the hearing officer's inquiry when the hearing resumed on August 21, 1996. I find that respondent demonstrated that petitioner's son would have been suitably grouped for instructional purposes in the MIS-I class.

        I have considered petitioner's other assertions which I find to be without merit.

THIS APPEAL IS DISMISSED.