98-022

       Petitioner, the Board of Education of the Mamaroneck Union Free School District, appeals from an impartial hearing officer's decision which modified the educational program which petitioner's committee on special education (CSE) had recommended for respondents' son for the 1997-98 school year. The CSE had recommended that the child receive eight hours of resource room services per week. The hearing officer directed respondent to provide the child with eight hours per week of individual instruction by a consultant teacher in the child's classroom. The appeal must be sustained.

        Respondents argue that petitioner's appeal is untimely because it was allegedly commenced more than 40 days after petitioner had received the impartial hearing officer's decision (see 8 NYCRR 279.2 [c]). The hearing officer's decision was dated February 26, 1998. However, the Board of Education's attorneys assert that they did not receive the hearing officer's decision until March 2, 1998, and that they attempted to personally serve the board's petition and memorandum of law upon respondents on April 11, 1998, which was the 40^th day after receipt of the impartial hearing officer's decision. That attempt was unsuccessful, and service was ultimately made two days later on April 13, 1998. Petitioner's attorneys point out that since the 40^th day after the receipt of the decision was a Saturday, the petition would be timely if served on the next business day, i.e., April 13 (see Section 25-a of the General Construction Law). I agree with petitioner, and find that its appeal is timely.

        Respondents' son is nine years old. In an independent psychological evaluation which was performed in December, 1996, the child was found to be functioning at an average intellectual level, with a verbal IQ score of 106, a performance IQ score of 106, and a full scale IQ score of 106. The psychologists who evaluated the child reported that he exhibited relative weakness performing tasks which required attention and concentration, and on tasks which required him to rapidly process visual information. His performance on language-based tasks was described as somewhat variable. He also demonstrated some difficulty with mental manipulation of information. His perceptual skills were reported to be above average, and his verbal skills were found to be in the average range. On the Wechsler Individual Achievement Test, he achieved grade equivalent (percentile) scores of K.6 (8^th) for basic reading, K.6 (7^th) for mathematics reasoning, 1.3 (8^th) for spelling, K.9 (6^th) for numerical operations, K.0 (3^rd) for listening comprehension and 4.8 (87^th) for oral expression. At the time of the evaluation, respondents' son was in the second grade. The child's evaluators reported that the child had a high activity level, and he became more active and distractible after approximately 45 minutes of testing. They opined that respondents' son met the criteria for being diagnosed as having an attention deficit hyperactivity disorder (ADHD). They indicated that the child's academic achievement was well below expectations based upon his general intellectual skills, and further opined that such discrepancies were indicative of a learning disability, as well as attentional/behavioral difficulties.

        The child attended a preschool in Larchmont for one year before enrolling for kindergarten in petitioner's Murray Avenue School in September, 1994. While in kindergarten, he reportedly had frequent temper tantrums and a high activity level after school. His behavior improved while in the first grade during the 1995-96 school year, but his academic performance lagged behind, notwithstanding some additional assistance in reading which he received. The child's first grade teacher was assisted by an aide in the morning. The aide provided much individual assistance to the child because he had difficulty learning in a large group. The child's second grade teacher testified that the boy had very limited skills in certain academic areas at the start of the 1996-97 school year. She explained the boy had tremendous difficulty retaining sight-word vocabulary, and difficulty reading at the pre-primer level. During the year, he continued to receive additional assistance from the district's remedial reading teacher, who initially worked with the boy in a small group. However, the child received individual instruction from the reading teacher twice per week after October, 1996. At the hearing, the child's second grade teacher testified that "things were starting to click" in reading by the end of the 1996-97 school year, but the child was still not reading at grade level. In mathematics, the boy had to use counters to do very simple addition and subtraction problems, and did not understand the concept of place value. Writing a short sentence was also difficult for him, according to his second grade teacher.

        As noted above, the child was independently evaluated in December, 1996, when he was in the second grade. The psychologists who evaluated him recommended that he receive four to five hours per week of intensive remediation in reading, spelling, mathematics, and graphomotor skills. They suggested that the Orton-Gillingham methodology be employed because the child was having difficulty with sound-symbol connections and with handwriting. The evaluators also suggested that a multisensory approach be used to teach the child mathematics. They highly recommended that the child have a classroom aide to assist him in developing effective self-help management skills, and they suggested that respondent help the boy to modulate his behavior more effectively through behavior modification techniques. Finally they suggested that a child psychiatrist be consulted to determine whether the use of medications would be appropriate to modify his behavior.

        The child was reportedly referred to the CSE because his second grade teacher was concerned that the child was functioning well below grade level and was acting out in school. An educational evaluation was done on March 20, 1997. The educational evaluator reported that the child was compliant during testing, and demonstrated a relatively long attention span. On the Woodcock Reading Mastery Test - Revised, the child achieved grade equivalent (percentile) scores of 1.6 (2^nd) for word identification skills, K.5 (.1^st) for word attack skills, 1.0 (.1^st) for word comprehension, and 1.7 (8^th) for passage comprehension. On the Peabody Individual Achievement Test, he achieved grade (percentile) scores of 3.0 (58^th) for general information, 1.4 (4^th ) for reading recognition, 1.4 (2^nd) for reading comprehension, 1.5 (5^th) for mathematics, and 1.3 (1^st) for spelling. The evaluator reported that the child had some understanding of phonics and decoding, but did not appear to have enough knowledge to put the phonics into use. He noted that the boy had difficulty attempting to work out simple mathematical computations. The evaluator opined that the child's deficient decoding skills and limited sight vocabulary would require intensive remediation in order for him to achieve academic success. She recommended that the boy be further tested in phonics.

        On March 30, 1997, the child's second grade teacher reported that the child could add and subtract up to 10, but he made computational errors and could not group numbers. He also did not know the value of coins. The teacher indicated that the child apparently did not hear short vowel sounds and many phonetic combinations, and could not use those sounds to decode (read) or encode (spell). She also indicated that he needed much individual assistance on almost all tasks, and did better when working 1:1 in a quiet environment. The teacher reported that the boy was working at the first grade level.

        On April 30, 1997, the child was observed in his classroom by a school psychologist, who reported that the boy had displayed an extremely short attention span and was at times unable to control his behavior. She indicated that he was easily stimulated by others and was unable to remain in his seat. She opined that the child would require assistance in maintaining his attention, and would need individualized instruction in weak academic areas in order to make adequate progress.

        On May 30, 1997, petitioner's CSE recommended that respondent's son be classified as learning disabled and that he be enrolled in a regular education third grade class during the 1997-98 school year. It also recommended that he receive 60 minutes of resource room services five times per week and that an individual aide work with the child in class for two hours per day. The individualized education program (IEP) which the CSE prepared for the child indicated that he would be provided with books on tape for stories, and included alternate testing techniques, such as special locations, extended time limits, having test questions read and questions clarified, and having his answers to test questions recorded for him. I note that the IEP indicated that the CSE had met on two prior occasions, January 27, 1997 and May 1, 1997. On the latter date the CSE had reportedly recommended that the child receive counseling, which was reportedly not acceptable to respondents. In any event, there are no IEPs from those earlier meetings in the record which is before me.

        The CSE met again on September 23, 1997, apparently because respondents had not consented to having their son's special education program initiated (see 8 NYCRR 200.5 [b][3]). The CSE again recommended that the child be classified as learning disabled. It increased the amount of the recommended resource room services to eight hours per week, and it recommended that he receive individual counseling by a school psychologist for 30 minutes per week. The CSE adhered to its previous recommendations for an individual aide and for the use of testing modifications. Respondents did not consent to the implementation of their son's revised special education program.

        In accordance with the provisions of 8 NYCRR 200.5 (b)(3), the Board of Education initiated an impartial hearing to obtain authorization to implement the CSE's recommendations. A hearing officer was appointed, and the hearing was scheduled to be held in December, 1997. However, it was adjourned at respondents' request. The hearing officer had a scheduling conflict, and was not available for the second date, and a new hearing officer was appointed. The hearing began on January 30, 1998, and it concluded on February 11, 1998. At the hearing, respondents informed the hearing officer that they did not dispute their son's proposed classification as learning disabled (Transcript, pages 331 and 348). However, they objected to the CSE's recommendation that their son receive resource room services and counseling. They asserted that resource room services would not help their son because he would reportedly not receive the multisensory instruction which the independent evaluators had recommended and because his self-esteem would be damaged if he went to a resource room for instruction. Respondents also asserted that counseling would be unnecessary if their son received appropriate instruction.

        In his decision which was dated February 26, 1998, the hearing officer noted that the child's parents appeared to believe that the CSE should have relied upon the results of their son's achievement testing by the independent evaluators rather than the results which the CSE obtained in its own evaluation. The hearing officer found that the results of the two achievement tests in question, the Wechsler Individual Achievement Test and the Peabody Individual Achievement Test, were not significantly different, although the child's performance on the latter test was slightly better. He further found that the CSE had relied upon both the independent evaluation and its own evaluation, as it had a legal right to do. The hearing officer also found that the boy's IEP accurately described his present levels of performance and identified his special education needs. He rejected respondents' contention that petitioner had failed to demonstrate that their son would have been suitably grouped for instructional purposes in petitioner's resource room program, and he dismissed their assertion that the boy might be depressed if he attended a resource room program as speculative. However, the hearing officer found that the CSE's recommendation should be modified to provide for "push-in" resource room services, i.e., the services of a consultant teacher in the boy's regular education third grade class. He also directed that the time for the services of the consultant teacher should not coincide with the time when the aide was present.

        In their answer to the board's petition, respondents assert that the hearing officer correctly concluded that their son should receive consultant teacher services rather than resource room services, but they contend that he should receive much more than eight hours per week of such services. I must note that they have not cross-appealed from the hearing officer's decision (see 8 NYCRR 279.4 [b]), and that in any event, the testimony and documentary evidence in the record do not support their claim.

        The Board of Education contends that the hearing officer erred by modifying the CSE's recommendation to require petitioner to provide consultant teacher services in place of resource room services. It argues that the child needs to receive special education instruction in a structured small group setting because of his significant deficits in reading, writing, and mathematics, and because of his attentional difficulties.

        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).

        Although there are two IEPs in the record, I will rely upon the later IEP of September 23, 1997 to determine whether petitioner met its burden of proof. The IEP described the child's present levels of performance and individual needs with respect to his academic, social, and physical development and also described his management needs in the manner prescribed by 8 NYCRR 200.4 (c)(2)(i). The IEP referred to the boy's results on the Peabody Individual Achievement Test administered to him by one of petitioner's special education teachers, and did not refer to the results of the Wechsler Individual Achievement Test administered by the independent evaluator. While the school district's test results are approximately two months’ more recent than the independent evaluator's report, the CSE was obligated to consider the report of the independent evaluators (8 NYCRR 200.5 [a][1][v]). However, I must credit the CSE chairperson's unrebutted testimony that the independent evaluator’s report was considered by the CSE. Moreover, I find that the child's IEP accurately identified the child's special education needs. The hearing officer noted that respondents had challenged their son's IEP annual goals, which he found to be appropriate for the boy. The hearing officer's finding, which has not been appealed, is final (34 CFR 300.509).

        The central question in this appeal is whether the services which the CSE recommended that the child receive during the 1997-98 school year were appropriate for him in terms of the Bd. of Ed. Hendrick Hudson CSD v. Rowley standard, i.e., he would have benefited from his educational program. In this instance, the parties appear to agree that the child needs more specialized instruction in reading, writing and mathematics than he could receive in a regular education curriculum. The CSE recommended that the child be removed from his regular education class for eight hours per week to participate in a resource room program, while the hearing officer directed respondent to furnish resource room services to the boy in his third grade classroom. Ostensibly, the dispute in this appeal is only about where the child's special education services should be provided. However, it also involves the size of the child's instructional group because he would be instructed in a group of no more than five in the resource room, but would receive 1:1 instruction from the resource room teacher if she instructed him in this third grade classroom.

        Having reviewed the entire record, I find that the child's needs are not so severe as to require 1:1 instruction. The child's second grade teacher testified that the child could work in a small group and liked having other children working with him (Transcript, page 196). His remedial reading teacher testified that the child's ability to work in a group had improved significantly during the 1997-98 school year (Transcript, page 238). The evaluation reports and the testimony by the child's teachers indicate that the child is distractible and requires some structure in his learning activities. Instruction in a small group away from the inevitable distractions in a regular education third grade classroom would minimize the child's distraction while providing him with the structure which he requires. Although the child would be out of his regular education class for a significant amount of time to participate in the resource room program, I note that his third grade teacher testified that it would not have hampered his learning in her class (Transcript, page 274). I have considered the class profiles for the two resource room classes the child would have attended, and I find that petitioner has demonstrated that the boy would have been suitably grouped for instructional purposes (see 8 NYCRR 200.6 [f][4]). Upon the record which is before me, I find that petitioner has met its burden of proving the appropriateness of the program recommended by its CSE.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer's determination that the child's resource room services should be provided to him in his regular education classroom is hereby annulled.