98-059

    Petitioners appeal from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that their son be enrolled in respondent's Henniger High School, where he was to receive resource room services during the 1998-99 school year. The hearing officer rejected petitioners' request that respondent be compelled to place the student in a BOCES alternative education program in Liverpool, New York, which did not have a resource room program. Petitioners request that their son be considered for the BOCES program. The appeal must be dismissed.

        Petitioner's son, who is sixteen years old, attended a private school for kindergarten, first, second and third grades. He reportedly began having academic difficulty in the first grade, and was privately tutored. Despite receiving remedial assistance, the boy continued to lag behind his classmates academically in the second grade. His lagging development reportedly led to ridicule by his peers and subsequent behavioral adjustment difficulties in school. Respondent reportedly considered holding the boy back in the third grade.

        The child was apparently referred to respondent's CSE in the spring of 1991. The CSE reportedly recommended that the boy be classified as learning disabled because of deficits in his written expression. The CSE also apparently recommended that he receive resource room services. In the fall of 1991, the child was enrolled in the fourth grade in respondent's Webster Elementary School. Although the boy was initially programmed to receive resource room services for one hour per day, he subsequently began receiving two hours of instruction per day in a self-contained special education class known as the AERP Option 1 class. The child remained in the Webster Elementary School for the fifth grade during the 1992-93 school year. At some point during 1993, his special education program changed from a part-time self-contained class to resource room.

        The child was enrolled in the sixth grade at respondent's Grant Middle School, where he received resource room services during the 1993-94 school year. In November, 1993, the boy's mother reported to a school psychologist that her son was experiencing stress in school because of the aggressive behavior of other students and his shame at being in a special education program. The school psychologist evaluated the boy in January, 1994. He reported that the boy had achieved a verbal IQ score of 99, a performance IQ score of 103, and a full scale IQ score of 101. The boy's visual-motor skills were in the average range. On the Woodcock-Johnson Tests of Achievement – Revised, the boy received grade equivalent (and standard) scores of 5.4 (96) for letter-word identification, 6.9 (103) for passage comprehension, 5.2 (90) for calculation, 6.8 (104) for applied problems, 2.2 (68) for dictation, 2.2 (72) for writing samples, 1.9 (62) for broad written language, 5.2 (96) for science, and 5.4 (95) for social studies. The boy's low scores for written language established his eligibility for continued classification as learning disabled. Personality testing revealed that the boy was in the "at risk" range for sense of inadequacy, leadership, aggression, conduct problems, depression, and adaptability.

        The child continued to receive resource room services while in the seventh grade at the Grant Middle School during the 1994-95 school year. He reportedly had trouble with another student, who was transferred to a different teacher team. The notes of a parent conference held in October, 1994 indicate that petitioners' son had difficulty transferring his thoughts to paper, and had failed to turn in some work assignments. He also failed to correct tests when given an opportunity to make up poor test grades, and allegedly made up excuses for not doing his work. His mother reported that the boy was having nightmares and wanted to die after an incident in September, 1994, when he was attacked by his classmates and dangled out a window. He began to receive psychotherapy privately in November, 1994. The boy reportedly failed at least two subjects during the second marking period of the 1994-95 school year. In March, 1995, he was identified as a student at risk for repeating the seventh grade because he was failing English, mathematics, social studies, and reading (Exhibit P-7). I note that the boy reportedly began receiving instruction at home upon the advice of his psychotherapist, in March, 1995.

        On March 21, 1995, the child's mother asked for a CSE meeting. The meeting was held on April 13, 1995. The boy's IEP from that meeting indicates that he was to begin receiving resource room services five periods per week on that date, and that the CSE had requested that a technology assessment be performed. The CSE also recommended that alternative testing techniques, such as flexible scheduling and settings, be used with the boy.

        In August, 1995, the boy was independently evaluated by a psychologist at his parents' request. The psychologist reported that the boy indicated that difficulty getting along with people had been his greatest problem, and that he was disliked by his teachers and ridiculed by his peers. He reported that the boy's cognitive, perceptual and motor functioning was intact, and therefore not indicative of a learning disability. However, he noted that there were mild limitations on the boy's performance of tasks requiring naming, visual perception, and sequencing, as well as graphomotor difficulties (including letter reversals and an awkward pencil grasp), which appeared to be the consequence of the boy's affective disorder and poor sustained attention. The boy achieved a verbal IQ score of 103, a performance IQ score of 101, and a full scale IQ score of 102. However, the psychologist opined that the boy's anxiety and attentional dysfunction had impaired his performance.

        The psychologist described the boy's affective functioning as including a dysphoric mood, pessimistic ideation, low self-esteem, and feelings of worthlessness, self-injurious behavior and suicidal ideation, social withdrawal, feelings of hopelessness, blunted expressiveness, poor effort and motivation, and over-anxiousness. He opined that the child had developed an obsessive-compulsive personality disorder, and had begun to evidence depression and oppositional defiant behavior. The psychologist attributed the boy's academic difficulties to attentional limitations, poor sustained concentration, low frustration tolerance, anxiety, task avoidance and inadequate study skills. He recommended that the child receive psychotherapy to improve his self-esteem, and desensitization training to decrease his reactivity to perceived stress within a school setting. The psychologist also suggested family therapy and supportive group therapy, in addition to the individual therapy which he recommended. He also recommended that the boy's classification be changed from learning disabled to other health impaired, and that he be provided with daily tutoring in reading, spelling, and arithmetic. The psychologist indicated that the boy required a structured program with a stable daily routine and well defined goals. He opined that, with successful treatment of his affective disorder, petitioners' son should be gradually transitioned back into a scholastic environment. He also opined that the boy should attend mainstreamed classes to foster his perception of normalcy, and recommended that he be enrolled in another school within respondent's district to have a "fresh start."

        The boy's psychotherapist and his psychiatrist reportedly recommended that he remain on homebound instruction during the 1995-96 school year to prepare for his entry into high school in the following school year. I note that in April, 1996, the CSE recommended that he remain on homebound instruction for the rest of the 1995-96 school year. In May, 1996, the boy's psychiatrist concurred with the independent psychologist's findings, and he recommended that the boy's classification be changed to other health impaired.

        On May 17, 1996, the CSE conducted its annual review of petitioners' son. The CSE recommended that he be classified as other health impaired, and that he be placed in a self-contained special education class with 15:1 child to adult ratio during the 1996-97 school year. The boy's IEP indicated that he was to be mainstreamed "as appropriate," and to have the use of a tape recorder and taped texts. I note that at the hearing in this proceeding, respondent's Director of Special Education testified that the child was to have been mainstreamed for one-half the school day. The IEP also provided for the use of alternative testing techniques, as had been in the boy's prior IEP.

        The boy did not return to school in the fall of 1996. In early September, 1996, the boy's psychotherapist completed an application for the continuation of home instruction for petitioners' son, in which he diagnosed the boy as having an obsessive-compulsive disorder and major depression. One month later, the psychotherapist recommended that the boy continue to receive home instruction "until an appropriate placement can be found for him" (Joint Exhibit 11). Although respondent reportedly provided home instruction, there is no evidence in the record that the CSE met to revise the boy's IEP until January 29, 1997. At that time, the CSE recommended that petitions' son receive two hours of home instruction per day. The boy's IEP noted that he had low self-esteem, and was very much affected by other people's opinion of him, and that he was sensitive about receiving special help in a regular class setting. Petitioners, who attended the CSE meeting, reportedly complained about respondent's failure to provide art instruction to their son, as well as difficulties with their son's homework assignments by his regular education teachers in the Henniger High School. Respondent assigned a staff member to insure that the boy's homework would be promptly corrected by his high school teachers. However, petitioners' son continued to have difficulty with his homework assignments, and his homebound teacher resigned in March, 1997.

        On February 28, 1997, petitioners' son was re-evaluated as part of his triennial evaluation by one of respondent's school psychologists who noted that the boy had taken anti-depressant medication shortly before the evaluation began. The boy achieved a verbal IQ score of 89, a performance IQ score of 93, and a full scale IQ score of 90. The school psychologist opined that the boy's scores may have been lowered by his distractibility during the evaluation. On the Wechsler Individual Achievement Test, the boy achieved grade equivalent (and standard) scores of 6.4 (89) for basic reading, 7.1 (96) for reading comprehension, 5.3 (75) for numerical operations, 4.6 (79) for mathematics reasoning, 4.0 (72) for spelling, and below kindergarten (57) for written expression. The school psychologist reported that it was difficult for the boy to express himself in writing, and that there were numerous spelling, capitalization and punctuation errors in his written work. The school psychologist also assessed the boy's social and emotional functioning. She reported that the boy perceived himself as being unable to solve his problems, dependent upon others, and unsure of himself. She described him as angry and extremely unhappy with school, which he viewed as a hostile and threatening environment. The school psychologist suggested that the boy was coping with many of his problems through repression and denial. Noting that within the preceding 37 months the boy had made approximately thirteen months growth in reading, no growth in mathematics, and 15 months growth in writing, the school psychologist opined that the boy's lack of regular schooling, irregular home instruction, and tendency to avoid difficult tasks had contributed to his poor achievement. She further opined that he would be more appropriately classified as emotionally disturbed. The school psychologist recommended that an alternative learning program, preferably one with a vocational component, be considered for the boy, and that if the boy was unsuccessful in respondent's alternative program, the BOCES program be considered.

        By letter dated March 26, 1997, petitioners then attorney advised the CSE's Coordinator that the boy was still not receiving all of the components of the educational program described in his IEP. The attorney also described a BOCES vocational program for learning disabled and emotionally disturbed students which reportedly provided both regular and special education in classes of no more than ten children. He suggested that the BOCES program would be appropriate for the boy, who was reportedly suffering from a post-traumatic stress syndrome. In a letter to petitioners' then attorney on July 30, 1997, the boy's psychotherapist asserted that the boy had post-traumatic stress syndrome as a result of the window incident, and that his severe feelings of anxiety, depression, and anger "with concomitant psychological reactions and flashbacks" would be reactivated, if he attended any of respondent's schools (Parent Exhibit 50). Petitioner's then attorney discussed the matter with respondent's attorney, who reportedly indicated that respondent would not place the boy in the BOCES program. Although respondent's Director of Special Education briefly alluded to a CSE meeting in September, 1997 in his testimony, I note that there is no evidence of that meeting in the record.

        Petitioners apparently asked respondent to place their son in the BOCES program. By letter dated December 10, 1997, respondent's president informed petitioners that respondent had considered their request, but a majority of the Board of Education had concluded that the school district had an appropriate special education program for the boy. On February 23, 1998, respondent received a written request for an impartial hearing from petitioners. Respondent reportedly did not appoint a hearing officer until March 25, 1998.

        On March 11, 1998, the CSE conducted a "triennial review", at which time it recommended that that the boy remain classified as other health impaired, and that he continue to receive two hours of instruction at home each day. I note that at the hearing in this proceeding, respondent's Director of Special Education conceded that the boy's triennial evaluation had been performed in 1997. The IEP which was prepared at the meeting indicated that the boy continued to have low self-esteem and few friends, but did not otherwise reveal why he had to be educated at home. The IEP indicated that the boy's homebound instruction would begin on March 11, 1998. By letter dated April 30, 1998, petitioners informed the CSE Coordinator that the CSE's recommendation was unacceptable to them as a placement during the 1998-99 school year.

        On May 27, 1998, the CSE reconvened for its annual review, and amended the boy's IEP. It recommended no change in his classification, but indicated that he would receive home instruction only until June 30, 1998. For the 1998-99 school year, the CSE recommended that the boy attend the Henniger High School for mainstreamed academic instruction and respondent's "Central Tech" for vocational instruction. It also recommended that he receive 400 minutes of resource room service per week. The boy's IEP once again indicated that he was to have taped textbooks, and that alternative testing techniques would be used with him. The IEP included annual goals for improving his reading, writing, mathematics and study skills, as well as goals relating to his behavior in school, and it included a transition services statement.

        The hearing in his proceeding was held on August 12, 1998. Respondent's Director of Special Education testified that the CSE had recommended that the boy attend the Henniger High School because it was his home school, but that he had offered petitioners the option of having the boy attend any of respondent's three other high schools. He further testified that petitioners' son needed the special education support which the Henniger resource room program would provide for academics, and that a special education resource person would be available to assist the boy in his vocational studies at respondent's Central Tech facility. Although the CSE had recommended that the boy be enrolled in a regular high school diploma program with a vocational component, the Director of Special Education testified that the boy could enroll in Henniger's occupational learning center, which offered a program for pupils working at their own pace to pass the Regents Competency Exams while receiving vocational education. The occupational learning center is located in a separate building. A special education resource teacher was also assigned to the occupational learning center. The school psychologist who had evaluated the boy in February, 1997 testified that she believed that the alternative learning program at the Henniger High School, i.e., the occupational learning center, would be particularly appropriate for petitioners' son.

        In their testimony, petitioners referred to various problems which had occurred while their son was on homebound instruction. The child's father opined that his son still suffered from post-traumatic stress and would be likely to have little or no trust of anyone associated with respondent's schools. Both petitioners acknowledged that the boy needed special education support, and appeared to acknowledge that the BOCES program which they preferred would not provide that kind of support. The boy's father also acknowledged that his son would "stew", i.e., obsess, about any placement.

        The hearing officer rendered her decision in September, 1998. She noted that there was no disagreement about the appropriateness of the boy's classification as other health impaired, or the inappropriateness of him remaining on homebound instruction. The hearing officer noted that there were a number of unresolved issues between the parents and the school district relating primarily to the latter's record keeping and the availability of information. However, she found that the educational program of a mainstreamed class plus twice-a-day resource room services, and a vocational education component (welding class at Central Tech) was appropriate for petitioners' son. She directed respondent to consider enrolling the boy in the alternative learning program (the occupational learning center) if, by the end of the first marking period, it appeared that the boy required more assistance. The hearing officer also directed respondent to provide an individual aide for the boy to help the boy adjust to school and to offer academic assistance if the boy would tolerate such help. Finally, she noted that respondent had agreed to provide 66 hours of tutoring to make up for services which were missed in the past.

        Petitioners object to the placement of their son in a mainstream program at the Henniger High School. They also object to their son being placed in an educational program which is connected to respondent. They contend that their son should not attend any of respondent's schools because the boy's psychotherapist had recommended the boy attend school elsewhere. With respect to the CSE's recommendation of a mainstream placement, petitioners assert that their son would have a difficult time in such a placement because of his academic deficits, short-term memory loss and "neurobiological imbalances", and that his placement would very likely lead to extreme anxiety. Petitioners assert that the BOCES program would be appropriate for their son because it would provide classes of no more than ten students, a "regulated" gym class, supervised lunch period, and the opportunity to obtain a local high school diploma with vocational training in one building.

        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).

        Petitioners have not explicitly challenged either the IEP's description of their son's needs, or the appropriateness of their son's IEP annual goals and short-term objectives. I have nevertheless reviewed the IEP (Joint Exhibit 4), in order to determine the appropriateness of the special education services, i.e., the resource room services which the CSE has recommended for the boy. I note that the IEP does not describe his present level of academic performance, as required by 8 NYCRR 200.4 (c)(2)(i). Its description of his social/emotional development, physical development and management needs, while limited, nevertheless affords some basis for determining the appropriateness of resource room services. Although the boy's Wechsler Individual Achievement Test scores were not on his IEP, I have considered those scores to ascertain whether resource room, which provides supplementary instruction (8 NYCRR 200.1 [hh]), would be adequate, or whether he requires primary instruction in special education, which would be provided either in a self-contained class or by a consultant teacher.

        This boy clearly has a significant deficit in his writing skills, notwithstanding his prior participation in a resource room program. However, I have also considered the independent psychologist's conclusion that the boy did not have a specific learning disability. While I do not reach the issue of the boy's classification because it is not disputed (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D. N.Y., 1987]), I must note that I agree with both the independent psychologist and respondent's school psychologist who found that this boy's affective behavior had seriously interfered with his ability to benefit from instruction. The extent to which that behavior would interfere with the boy's educational progress when he returns to school cannot be determined at this time. Although a self-contained class might provide more intensive remediation, it would very likely negatively impact upon the boy's perception of himself. However, it is clear that he will require special education assistance. Having considered his IEP annual goals which I find to be appropriate, I further find that a program of two periods per day of resource room services is consistent with the least restrictive environment requirement, and should be tried before placing the boy in a more restrictive environment.

        I have considered petitioners' position that their son cannot be successfully educated in respondent's schools because of the trauma he suffered in the window incident in 1994. I must point out that the psychotherapist's letter (Parent Exhibit 50) was written to petitioners' then attorney shortly before the psychotherapist stopped seeing the boy, which was approximately one year before the start of the 1998-99 school year. The psychotherapist did not testify at the hearing, nor did the boy's psychiatrist. I note that the independent psychologist who evaluated the boy in August, 1995, recommended that the boy be given a fresh start in one of respondent's other middle schools, but he did not opine that the boy could not be educated in any of respondent's schools. While no one can predict how the boy will react in any school setting, I find that petitioners' contention that their son cannot be educated in respondent's schools is too speculative. Furthermore, I must point out that there is no evidence in the record that any special education support would be available to the boy at the BOCES placement. A placement without that support would be inappropriate. I urge both parties to work together to assist the boy in making the transition back to a school setting in accordance with the CSE's recommendation.

THE APPEAL IS DISMISSED.