99-086

        Petitioner appeals from that part of an impartial hearing officer’s decision which upheld the recommendation by respondent’s committee on special education (CSE) that petitioner’s daughter be classified as other health impaired (OHI), and that she be placed in a 12:1:1 special class/part-time for two hours per day. Additionally, petitioner appeals from that part of the impartial hearing officer’s decision which held that the child’s individualized education program (IEP) for the1998-99 school year was appropriate. She requests that respondent be directed to place her daughter at The Devereux Glenholme School (Glenholme), a private school in Washington, Connecticut. The appeal must be sustained in part.

        Preliminarily, I will address a procedural issue raised in this appeal. The hearing in this proceeding was completed on June 10, 1999. By letter dated May 1, 2000, petitioner’s attorney submitted as supplemental evidence a copy of the child’s IEP revised as of February 1, 2000. She claims that the IEP evidences alleged violations of the Individuals with Disabilities Education Act (20 USC 1400 et seq., hereinafter referred to as IDEA), including the inappropriateness of the placement recommended for the child during the 1998-99 school year. Respondent asserts that I should not consider the February, 2000 IEP. Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer’s decision, if such evidence was unavailable at the time of the hearing, or the record would be incomplete without it (Application of a Child with a Disability, Appeal No. 95-41). The new IEP was unavailable at the time of the hearing. I will accept it for the purposes of this appeal, while considering respondent’s argument about its relevance in determining the child’s educational needs during the 1998-99 school year.

        Petitioner’s daughter was nine years old and in the fourth grade at respondent’s Kent Elementary School at the time of the hearing in 1999. Her natural mother was reportedly addicted to crack cocaine. By the age of 16 months, the child had reportedly been placed in three different foster homes (Exhibit 2). When she was three years old, after being placed in several other foster homes, the child was ultimately placed with petitioner and her husband, who adopted her in 1995.

        The child was initially referred to respondent’s CSE for an evaluation in the fall of 1995 when she was in the first grade (Exhibit 2). On the Weschler Intelligence Scale for Children-III (WISC-III), the child achieved a verbal IQ score of 84, a performance IQ score of 89, and a full scale IQ score of 85, placing her in the low average range of cognitive ability. Her reading and math skills were assessed to be below age level expectancy. She was classified as learning disabled, and placed in a special class for two hours per day. Counseling was recommended as a related service (Exhibit 19). The CSE continued the same recommendation and placement for the 1996-97 and 1997-98 school years, when the child was in the second and third grade, respectively (Exhibits 12 and 17).

        In an IEP teacher progress report dated April 21, 1998 (Exhibit 21), the child’s third grade special education teacher reported that the child had made slow but steady progress in all areas. She indicated that a small group instructional setting best met the child’s educational needs. The child’s regular education teacher reported that the child appeared capable, but had difficulty staying on task. She noted an improvement in the child’s ability to remain focused since the child began taking Ritalin. The child’s regular education teacher also reported that the child did not get along socially with her peers.

        In a report dated April 25, 1998, the school social worker who provided counseling to the child indicated that the child continued to require assistance in order to express her frustration appropriately, avoid conflicts, and interact with peers and adults (Exhibit 22). She noted that the child was able to follow rules and demonstrate a good understanding of acceptable and appropriate behavior while in small groups.

        On May 1, 1998, a subcommittee of the CSE met to conduct the child’s annual review (Exhibit 23). At the request of the child’s mother, the subcommittee agreed to advance the date of the child’s triennial evaluation to be completed before the end of the school year, and to table the annual review until the triennial was conducted.

        In an updated social history dated May 20, 1998, the child’s mother reported that her daughter was admitted to Four Winds Hospital on May 19, 1998 for a two-week observation because she had manifested aggressive behavior at home (Exhibit 26). The child’s mother explained that her daughter was abrupt and aggressive in her interactions with her siblings, prone to temper outbursts and vacillating moods at home, and vindictive when angry. The child’s screaming episodes reportedly lasted for hours. The child’s mother indicated that her daughter had been taking Ritalin, and that she would be monitored for a change in medication during her hospitalization. The mother expressed concern about her daughter’s educational program, and sought a program with more therapeutic intervention and less unstructured time. The school social worker noted that the child’s behavior at home was markedly different than her behavior at school.

        On June 1, 1998, the child’s academic achievement was assessed using the Woodcock Johnson - Revised (WJ-R). The child achieved grade equivalent scores of 2.4 in broad reading, 2.5 in broad math, and 2.3 in broad written language and broad knowledge (Exhibit 27). On June 8, 1998, the child scored in the lower limits of the average range on the Test of Nonverbal Intelligence - Second Edition (Exhibit 52). Her performance on the Bender Visual Motor Gestalt Test yielded an age equivalent of 5-2 to 5-3. On the Bender Recall, her performance suggested below average to average short-term visual memory.

        A speech/language evaluation was conducted on June 18, 1998 by a district speech/language pathologist, who reported that the child’s speech and language skills were within the average range (Exhibit 29). The child demonstrated age appropriate spontaneous conversation for linguistic form, content and use, as well as articulation and voice skills. The speech/language pathologist noted that the child’s speech production was characterized by mild dysfluencies which did not interfere with her communicative intent. She indicated that the child exhibited extremely distractible behavior during the testing session, and opined that her distractibility could interfere with her ability to perform certain language tasks.

        On June 19, 1998, the child’s special education teacher reported that the child had made slow, but steady, progress in reading and written language. However, math continued to be a problem for her. The teacher noted that the child’s distractibility had affected her performance in all areas (Exhibit 30). The child’s regular education teacher reported that the child’s mood determined her performance. The girl’s inability to remain focused prevented her from completing her work. The child’s special education teacher indicated that the girl required redirection to alert her to the demands placed upon her academically and socially. The special education teacher noted that the child also had a great deal of difficulty getting along with her peers, which was caused in part by her inappropriate behavior. Although the child wanted to be accepted by her peers, she did not appear to have the tools to be successful socially. The special education teacher recommended that the child be placed in a self-contained class for reading/language arts and math, and be mainstreamed with programmatic support for other subjects.

        In a letter dated June 22, 1998, the Site Director at the Astor Child Guidance Clinic noted that the child had been receiving services at the clinic since 1994, and that the clinic’s Home Based Crisis Intervention Unit was exploring behavioral incentives and other interventions designed to improve the child’s ability to function (Exhibit 31). The Director indicated that the child had been diagnosed as having an oppositional defiant disorder (ODD), and an attention deficit hyperactivity disorder (ADHD), predominately hyperactive impulsive type, for which she was receiving Tegretal and Tenex.

        A neurologist who evaluated the girl on June 26, 1998 did not identify any neurological abnormalities. Based upon teacher reports, he opined that the child had a significant language based learning disability, as well as ADHD. He recommended a formal audiometric assessment, and suggested further exploration of the significant discrepancy between the child’s most recent language testing and her school performance (Exhibit 32).

        In June, 1998, the child’s regular education teacher advised petitioner that her daughter’s greatest difficulty was inattentiveness (Exhibit C). The teacher reported that the child was unable to complete the assignments which had been modified for her because of her inconsistent work habits stemming from her inattentiveness. She noted that the child’s performance had not significantly improved, despite a change in her medication. The regular education teacher also noted that the child was prone to mood swings which hindered her academic and social progress.

        A multidisciplinary team, which included the school psychologist and the child’s special education teacher, concluded on July 7, 1998 that the child no longer met the criteria of learning disabled, and did not meet the criteria of emotionally disturbed. The team believed that she appeared to meet the criteria for classification as OHI (Exhibit 53). Noting that the child had demonstrated growth commensurate with her intellectual potential, and that she was benefiting from her part-time special class placement, the team recommended that the child continue in that placement, and receive support for her mainstream classes, including additional counseling and speech improvement services. Additionally, the multidisciplinary team suggested that the child’s mainstream classroom be carefully selected to ensure close proximity to her special education classroom to avoid difficulties in transitional settings. The child’s mother did not agree with the recommendation and requested that her daughter be placed in a full time special education setting. The child’s mother also disagreed with the multidisciplinary team’s recommendation to increase counseling services.

        In a psychological evaluation conducted on August 3, 1998, the child achieved a verbal IQ score of 91, a performance IQ score of 73, and a full scale IQ score of 81 on the WISC – III, placing her in the low average range of intellectual functioning (Exhibit 35). The school psychologist noted that the results of the evaluation were consistent with those of her last evaluation. She reported that the child used her verbal skills to manipulate her environment. The school psychologist opined that the child’s distractibility, inability to maintain concentration, and defeatist attitude affected her scores on standardized tests and her performance in the classroom. Additionally, she indicated that the child’s poor impulse control, frustration level, and need to manipulate her environment affected her overall ability to function at an age appropriate level, including her ability to initiate and maintain appropriate peer relationships.

        The CSE met on August 24, 1998 to review the child’s triennial testing and make recommendations for her placement for the 1998-99 school year (Exhibit 36). At the meeting, the child’s mother signed a form consenting to have the CSE proceed without a parent member in attendance (Exhibit 37). The CSE approved a request for a private psychiatric evaluation of the child (Exhibit 40).

        In September, 1998, the child’s fourth grade special education teacher administered the Woodcock Johnson Psycho-Educational Battery to her (Exhibit 54). The teacher reported that the child’s overall performance fell in the low average range of ability, but noted that there were significant discrepancies in the test results revealing a clear pattern of strengths and weaknesses. She also reported that the child exhibited weaknesses in short-term memory and auditory processing. The teacher opined that anxiety could have affected the child’s performance on the test. She recommended a small group instructional setting with intensive, individualized, multi-sensory instruction for the child, as well as highly specific direction, encouragement, and positive reinforcement to encourage the child to take learning risks in the classroom.

        A private neuropsychological evaluation was conducted on various dates in September, 1998 (Exhibit 42). The neuropsychologist found that the child demonstrated general intellectual ability in the average to high average range, but had significant processing deficits. The neuropsychologist noted that the child’s academic skills were below grade level across the board, and indicated that her findings and the child’s history were consistent with disorders of mood and temperament, which interfered significantly with an accurate assessment of the child’s cognitive processing deficits or learning disabilities. The neuropsychologist opined that the child qualified for classification as emotionally disturbed or learning disabled. She recommended that the child be placed in a school program which included a highly structured behavior modification approach in order to address her significant behavioral, social and emotional difficulties.

        The girl’s psychiatric evaluation was conducted September 25, 1998. The psychiatric consultant described the child’s affect as sullen, and her mood as angry (Exhibit 41). He noted that the child had uneven learning abilities, with significant weaknesses in the performance section of intelligence testing, problems with concentration, attention and hyperactivity, a defiant oppositional style of functioning, and a mood component, as well as stress and trauma in her background that affected to her functioning. The psychiatric consultant opined that, while the child did not pose an immediate danger to herself or others, there could be some risk if the child were especially upset and her impulses were not under control. He diagnosed the child as having ODD and ADHD, and opined that the child’s prognosis was fair to good. The psychiatric consultant recommended that the child’s behavior and achievement be documented over a one to two-month period in order to identify specific placement options for her. Additionally, he suggested a more structured special education program should be considered if the child was not learning in her current placement.

        A functional behavior analysis of the child was completed in October, 1998 (Exhibit 57). The child was rated by her teachers and social worker, who indicated that the child’s behavior included interrupting classroom activities, repeated disruption of school related activities, and disruptive behavior in unstructured situations. These behaviors were categorized as falling within the "disorderly conduct" domain.

        An IEP progress report dated October 27, 1998 indicated that the child had made "some progress" in achieving her language arts and math goals, but no progress in several of her social/emotional goals (Exhibit 43). Teacher comments on the child’s first quarter report card indicated that she continued to have distractibility and self-control difficulties (Exhibit 58). An "Action Plan" was developed on November 10, 1998 by the child’s special education teacher, who suggested strategies to prevent and address the child’s misbehavior (Exhibit 44).

        The CSE convened on December 2, 1998 to review the new evaluations. I note that the minutes of that meeting indicate that the CSE recommended that the child continue to be classified learning disabled. However, my review of the record indicates that the CSE in fact recommended classification as OHI. The IEP which was prepared at that meeting indicated that she was to be classified as OHI (Exhibit 50). The CSE also recommended that the child continue her part-time placement in a special education class for two hours per day to receive instruction in reading, language arts, and math. A behavior intervention plan was developed to address targeted problem behavior. On December 12, 1999, the child’s parents requested an impartial hearing challenging the procedures followed by the CSE as well as its recommendations (IHO-1).

        A January 12, 1999 progress report on the child’s IEP goals and objectives notes "some progress" or "good progress" on most IEP objectives (Exhibit 60). An April 12, 1999 progress report notes satisfactory progress on most objectives, "some progress" on five objectives, and achievement on four objectives (Exhibit 62). The hearing record includes several pages of anecdotal records and other reports describing the child’s disruptive behavior between November, 1998 and March, 1999 (Exhibits 59, A, and F-Q).

        The impartial hearing in this proceeding began on January 25, 1999, and continued on various dates, concluding on June 10, 1999. The hearing officer rendered his decision on August 26, 1999. He determined that the parent could not waive her right to have a parent member of the CSE at the August, 1998 CSE meeting. Therefore, he found that the CSE was improperly constituted, and powerless to act at that meeting. As a result, he found that the August, 1998 IEP was a nullity. Additionally, he found that the CSE had appropriately changed the child’s classification to OHI at its December 2, 1998 meeting. In doing so, he found that the child could have been appropriately classified as learning disabled, but that OHI was the more appropriate classification. The other issue which the hearing officer addressed was whether the CSE’s recommendation that the child remain in her part-time special education program was appropriate. Petitioner contended that her child should be placed in a "therapeutic" residential placement. The hearing officer found that the December 2, 1998 IEP appropriately identified and addressed the child’s special education needs, and that the CSE’s recommended placement was consistent with the requirement that respondent place the child in the least restrictive environment.

        Petitioner appeals from the hearing officer’s decision on a number of grounds. Initially, she challenges the CSE’s recommendation to classify her daughter as OHI, because she claims that it misidentifies her daughter’s primary disabling condition. She asserts that her daughter should be classified as emotionally disturbed or learning disabled. Petitioner also asserts that there is no support for the diagnosis of ADHD.

        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). An other health impaired child is defined by state regulation as:

a student who is physically disabled and who has limited strength, vitality or alertness due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes or tourette syndrome, which adversely affects a student's educational performance.

(8 NYCRR 200.1[mm][10])

        At the August, 1998 meeting, the CSE recommended that the child’s classification be changed from learning disabled to OHI because of the impact her ADHD had on her educational performance. It continued to recommend an OHI classification at the December, 1998 meeting. The record shows that the Astor Child Guidance Clinic identified the child’s diagnoses as ODD and ADHD (Exhibit B), as did the psychiatric consultant (Exhibit 41). The hearing officer found that the CSE was correct in accepting and acting upon that information. I agree with his finding. The record is replete with reports and teacher comments indicating that the child’s inattention in class has affected her ability to benefit from instruction. Since the hearing officer also found that the child could be classified as learning disabled, there is no reason to review that finding. A board of education may establish priorities, where a pupil has more than one handicapping condition (Application of a Child with a Handicapping Condition, 27 Ed. Dept. Rep. 102; Matter of Handicapped Child, 23 Ed. Dept. Rep. 191; Matter of Handicapped Child, 20 Ed. Dept. Rep. 557). Accordingly, I find that the child’s classification as OHI was appropriate.

        Petitioner also asserts that her daughter was denied a free appropriate public education (FAPE) from September, 1998 to December, 1998 because her child did not have a valid IEP in place until December 2, 1998. 1998. Although the child’s mother purported to waive her right to have a parent member participate in the August, 1998 CSE meeting, I agree with the hearing officer’s finding that Section 4402 (1)(b)(1) of the Education Law as it read at the time of the CSE meeting did not authorize the parent or the school district to dispense with the services of the required members of the CSE (Application of a Child with a Handicapping Condition, Appeal No. 91-41). The statute was amended effective July 20, 1999 to provide that a parent member need not participate if the child’s parents request that the parent member not participate. However, that amendment does not apply to the facts of this case. An IEP prepared by a CSE which did not include each of its required members is a nullity (Application of a Child with a Handicapping Condition, Appeal No. 92-31). Accordingly, I find that respondent failed to provide an appropriate educational program for the first three months of the school year because of its failure to have a valid IEP in place during that time.

        Additionally, petitioner challenges the December, 1998 IEP on both procedural and substantive grounds. 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).

        The minutes from the December, 1998 meeting indicate that the CSE reviewed various reports and records, including the private neuropsychological report obtained by the parents. The IEP included the results of standardized testing from June, 1998, the August, 1998 psychological evaluation, and the private neuropsychological evaluation. The IEP described the child’s IQ was being in the low average range, and it indicated that she had deficits in reading, writing and math. In addition, the IEP identified the child’s social/emotional needs as well as her management needs. I agree with the hearing officer that the December, 1998 IEP accurately reflected the results of the child’s evaluations, and appropriately identified her needs. I also agree with the hearing officer that the IEP’s annual goals and short-term instructional objectives were related to the child’s special education needs. The IEP established annual goals for language arts, mathematics, and study skills, as well as goals to address the child’s social and emotional deficits.

        To achieve those goals, the CSE recommended that the child be placed part-time in a special education class and receive programmatic support for her regular education classes. Petitioner asserts that her daughter required a full-time special education program in a highly structured, small class setting. I find that the child performed satisfactorily in a small, structured setting with individual attention. Her third grade special education teacher testified that she had made slow but steady progress in her special education class during the 1997-98 school year. Although the child’s regular education third grade teacher did not testify at the hearing, the record includes an end of the year letter by the teacher and other reports indicating that the child’s inattentiveness impeded her academic and social progress in the mainstream setting. The record shows that the child continued to have difficulty in the mainstream setting for the fourth grade during the 1998-99 school year. The child’s fourth grade special education teacher testified that a behavior plan had to be developed at the beginning of the school year because of the child’s distractibility and poor attending skills in the regular education classroom (Transcript p. 915). The record shows that the child continued to exhibit inappropriate and disruptive behavior during the fall. At its December, 1998 meeting, the CSE added a behavior intervention plan to the child’s IEP. Despite the implementation of the behavior plan, the child continued to display inappropriate behavior in both her regular and special education classes. Based upon the record before me, I find that the part-time special education program recommended by the CSE was inadequate to meet this child’s needs. I find that the child required a full-time special education program. However, it does not follow, nor does the record demonstrate, that the child required a residential placement during the 1998-99 school year. Under Federal and State law, a residential placement is appropriate only if it is required for the child to benefit from his or her educational program, i.e., to make educational progress (Abrahamson v. Hershman , 701 F. 2d 223 [1^st Cir., 1980]; Burke County Bd. of Ed. v. Denton , 895 F. 2d973 [4^th Cir., 1990]; Kerkam v. Superintendent D.C. Public Schools, 931 F. 2d 84 [D.C. Cir., 1991]; Application of a Child with a Disability, 95-33). The record before me affords no basis for finding that the child could not have made educational progress without a residential placement.

        I do not address petitioner’s challenges to her daughter’s IEPs for the school years prior to 1998-99 because those issues are both moot and untimely (Application of a Child with a Disability, Appeal No. 93-27). I have considered petitioner’s other claims which I find to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer’s decision regarding the appropriateness of the child’s placement during the 1998-99 school year is hereby annulled.