99-072

        Petitioner appeals from the determination of an impartial hearing officer upholding the recommendation by respondent's committee on special education (CSE) for her son’s placement in a modified instructional services-I (MIS-I) class for the 1999-2000 school year. She asks that the boy be allowed to remain in a regular education class while receiving supportive services. The appeal must be sustained in part.

        Before reaching the substantive issue of the appeal, I must first address the procedural issue of respondent's untimely answer to the petition. The Regulations of the Commissioner of Education require that an answer to the petition in an appeal from the decision of an impartial hearing officer be served upon the petitioner within 10 days after the petition has been served (8 NYCRR § 279.5). Respondent acknowledges that the notice of intention to seek review, notice of petition, verification, affidavit of personal service and affidavit of service by mail were served upon the Board of Education on September 1, 1999. However, it asserts that it did not receive the petition. The petition was filed with the Office of Counsel of the Education Department on September 3, 1999. Respondent was not aware that the petition had been filed until it was notified by the Office of State Review that its answer was late. It subsequently received a copy of the petition from the Office of State Review on July 24, 2000. Respondent filed its answer with the Office of State Review on August 8, 2000, almost one year after the petition was received by the Office of Counsel. It asks that I excuse its delay. In an appropriate case, I may accept a late answer where there is a reasonable explanation for the delay and the petitioner would not be prejudiced by the acceptance of the answer (8 NYCRR § 275.3). I accept respondent's explanation that it did not receive a copy of the petition until July 24, 2000. I find that respondent has offered a reasonable explanation for its delayed answer and that the acceptance of the answer will not prejudice petitioner. Therefore, I have accepted respondent's answer.

        Petitioner's child was twelve years old and in the fifth grade at P.S. 19 at the time of the hearing in this proceeding. The boy was initially evaluated by the CSE while in the first grade in 1994. He was classified speech impaired, and his classification was not in dispute. Although the child spoke Spanish at home, he was more comfortable speaking English at school. The child repeated third grade, and had been in a monolingual program by parental option since that time. His cumulative record indicates that his attendance has been good (Exhibit 19). During the 1998-99 school year, he was in a general education class, with bilingual resource room support, and speech/language therapy (Exhibit 10).

        In March, 1999, the child was referred to the CSE for a substantial change in his individualized education program (IEP). The child's teacher, speech therapist and resource room teacher, who made the referral, indicated that the child’s distractibility had resulted in a severe reading delay which warranted a change in his placement to a more restrictive environment. They also advised the CSE that the child's progress in speech therapy had been limited by his lack of motivation and his behavioral issues (Exhibit 18).

        The child was reevaluated in the Spring of 1999. His teacher reported that his reading, math and writing skills were at a mid-third grade level. She noted that he had recently begun to write in English. When given an assignment requiring two written pages, the child would only produce two or three lines. The teacher stated that the child was unmotivated, and would complain if urged to produce more work. She described his behavior as being immature and disruptive. His teacher believed that the child would benefit from counseling, placement in a more restrictive environment, or both. She also felt that the child needed a male role model, and would benefit from placement with a male teacher (Exhibit 13).

        The child was observed for 30 minutes in his language arts class by an educational evaluator on April 30, 1999. He sat in the back of the room removed from the other students. The evaluator reported that the child volunteered to answer questions twice, but appeared more restless than his classmates and only attended to the lesson about half the time (Exhibit 12). The boy’s educational evaluation was conducted on May 12, 1999. He was tested in both English and Spanish on the Woodcock Language Proficiency Battery-Revised. The child achieved similar test scores in the low to very low range in each language. The evaluator noted that the boy had scored below the 40^th percentile on the English L.A.B. exam, which required that the CSE consider the child’s language of instruction (Application of a Child with a Disability, Appeal No. 00-028). However, the evaluator believed that the boy’s language difficulties could not be attributed solely to the fact that he spoke a second language. On the Wechsler Individual Achievement Test, the child achieved approximate grade equivalent scores of 2.4 for reading and 4.0 for math. His spelling/writing skills were reported to be in the very low to low range. The evaluator reported that the child seemed to respond to test questions before thinking. She opined that the boy’s academic needs were too great to be adequately addressed by part-time remediation. She recommended that he receive full time special education service in a small group. The evaluator also recommended an exemption from bilingual services because the child exhibited no difference between his English language skills and his Spanish language skills (Exhibit 10).

        A psychological evaluation was administered to the child on May 13, 1999. He was tested in both English and Spanish. The evaluator reported that the child exhibited speech/language difficulties, and tended to give up easily when confronted with difficult tasks. The child performed better on nonverbal, manipulative tasks than on verbal tasks. He exhibited speech and articulation problems in both languages, indicating that his deficiencies were language based rather than bilingual concerns. Testing revealed a significant discrepancy between verbal and nonverbal areas, possibly indicating that he had a learning disability. Projective testing revealed that the child was insecure, doubted his abilities, and felt hurt by his limited success in school and his speech/language difficulties. He had difficulty with social skills, and related better in one-to-one situations. The evaluator recommended placement in a small class to allow the child to process information at his own pace and decrease opportunities for distraction. In addition, the psychologist recommended speech/language therapy in English and counseling to help the child express himself and acquire appropriate social skills (Exhibit 9).

        On May 17, 1999, the child's speech/language therapist reported that the child exhibited receptive and expressive language delays and articulation deficits. The therapist also reported that the child had frequent emotional outbursts during therapy. She recommended that the child continue to receive thirty minutes of group therapy twice a week (Exhibit 14). I note that in a subsequent speech/language evaluation performed on June 25, 1999 at the Bilingual Network, Inc., the child was found to have a mild speech intelligibility difficulty and moderate delays in his semantic skills, auditory comprehension, and expressive language skills. The evaluator recommended that the boy receive speech/language therapy in English twice per week (Exhibit 11).

        On June 4, 1999, the CSE recommended that the child remain classified as speech impaired. It also recommended that the child be placed in a special class with a student:teacher ratio of 15:1, and receive group speech/language therapy twice a week for thirty minutes, and group counseling once a week for thirty minutes (Exhibit 3). Petitioner attended that meeting of the CSE. The parent was sent the final notice of recommendation advising her of a placement at P. 84 on June 8, 1999 (Exhibit 2).

        A profile of the recommended class which was also prepared on June 8, 1999 indicated that thirteen students were in the class. Seven students were eleven years old, and six students were twelve years old. Five students were reading at a grade level between 1.6 and 2.5. Eight students were reading at a grade level between 2.6 and 3.5. In math, seven students were performing at a grade level between 2.6 and 3.5. Six students were performing at a grade level between 3.6 and 4.5. In oral-expressive language, six students had age appropriate ability and seven students had below average ability. In oral receptive language, four children had appropriate ability and nine students had below average ability. Five students had average intellectual functioning and eight students had below average intellectual functioning. All the students had below average written skills and age appropriate physical development and social behavior. Eleven students received counseling, seven received speech therapy, one received occupational therapy and one student received physical therapy (Exhibit 2).

        Petitioner objected to the recommended placement, stating that she would prefer her child to continue in his current placement (Exhibit 1). An impartial hearing was held on July 22, 1999. The child's principal testified that before recommending a special class for the boy, the CSE had unsuccessfully attempted to implement a pull-out program and an after school program with the child. The principal did not offer details of the programs he mentioned (Transcript p. 14). The mother testified that the child did not participate in the after school program (Transcript p. 27). The mother also testified that she never visited the recommended program because she did not want her child to be placed in a special class. She explained that she had an unpleasant experience with another child who had been placed in a special class (Transcript pp. 24-26).

        In his decision which was rendered on August 10, 1999, the hearing officer found that the child had not been learning in his educational environment and was frustrated by lack of academic success. He further found that the child had exhibited his frustration by acting out. He found that petitioner’s son needed the staff and setting of a MIS-I class to meet his needs, and he directed respondent to place the boy in that class.

        Petitioner appeals from the hearing officer's decision because she does not want her son in a special education class, and wants him remain at P.S. 19. 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 first show that it appropriately evaluated the child. Federal regulations implementing Section 504 of the Rehabilitation Act of 1973 require that a school district evaluate a child before making a significant change in the child's placement (34 CFR 104.35 [a]). A CSE's failure to perform an adequate evaluation of a child prior to recommending a change of placement may afford a basis for annulling that recommendation (Application of a Child with a Disability, Appeal No. 93-15; Application of a Child with a Disability, Appeal No. 96-22). Upon review of the record, I find that the CSE appropriately evaluated the child.

        The board of education must further 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 the evaluations identifying 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).

        I find that the boy’s IEP accurately reflected the results of his evaluations. Goals and objectives must address a child's academic, social, physical and management needs. I find that the goals and objectives contained on the child's IEP appropriately address the child's academic and social needs, and I note that the child has no unique physical needs. The evidence does not, however, show that the child's special education needs are so severe as to require placement in a self-contained class on a full time basis. The boy’s cumulative record reveals that his performance in music, physical education, and art was satisfactory in the five school years prior to the 1998-99 school year. The educational evaluation revealed that his math computation skills were not significantly delayed, but his ability to do word problems was hindered by deficits in his reading skills. I find that the boy requires primary special education for reading and language arts, and that he does not require primary special education instruction in other subjects.

        I have considered the written evidence in the record about the boy’s management needs. The child's speech therapist reported that the child frequently exhibits emotional outbursts during therapy (Exhibit 14). Such outbursts may justify individual speech/language therapy, but they do not justify a full time placement in a self-contained classroom. The psychological evaluation indicated that the child's "immaturity and tendency to challenge authority figures may result in hostile behaviors" (emphasis added) (Exhibit 9). The reported possibility of hostile behavior does not warrant a self-contained class. The child's teacher reported that, among other things, the child is immature, disruptive and argumentative, and demands constant attention. The teacher recommended counseling, a more restrictive environment, or both (Exhibit 13). She did not state that a self-contained class was necessary to address the child's needs. The educational evaluator recommended full time small group services, but the child's functional level in academics does not warrant such a restrictive environment. I find that the Board of Education did not meet its burden of proving that the recommended placement was the least restrictive environment for the child. For the benefit of the parties, I note that a site supervisor testified at the hearing that children in the MIS-I class could be mainstreamed for various subjects in accordance with their IEPs. The CSE in this instance failed to make any provision for mainstreaming.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's decision is annulled.

IT IS FURTHER ORDERED that the CSE develop a program providing the child with primary special education for reading and language arts, and a general education program for all other subjects.