00-020

         Petitioners seek review of the decision of an impartial hearing officer which held that the Board of Education's proposed placement for their son during the 1999-2000 school year was appropriate, and which ordered that the boy’s school records be released to an evaluating psychiatrist. The appeal must be sustained in part.

        The child became twelve years old during the course of the impartial hearing. He was initially classified learning disabled in March, 1990 (Exhibit R-15). His classification has remained the same, and it was not an issue at the hearing. Consequently, I do not review the appropriateness of that classification (Hiller v. Brunswick CSD, 674 F. Supp. 73, [N.D. N.Y., 1987]). The boy began receiving special educational services through a Board of Cooperative Educational Services (BOCES) early intervention program when he was five months old. At the age of two, he was placed in a BOCES early childhood program.

        Petitioners’ son entered kindergarten in respondent’s schools during the 1992-93 school year. Upon entering kindergarten, the child received speech and language services. In first grade, he received resource room support and counseling. During the second and third grades, the child was placed in a full-time self-contained class, and he received counseling and occupational therapy as related services (Transcript pp. 822-823).

        The child began to experience difficulties during third grade. At the beginning of the year, the child had been placed part-time in a special education class with a student-teacher ratio of 15:1, but he was mainstreamed for physical education, art, lunch and assemblies. In March, 1996 individual counseling was added once per week for thirty minutes (Exhibit R-4). In April, 1996 the child's occupational therapy was changed from group therapy to individual therapy because the child had difficulty with distractibility, and reading was added as a mainstream subject. Because of unresolved issues with his school bus driver, the child was placed on a small bus for the remainder of the school year (Exhibit R-13).

        At the child's annual review in March, 1996, the Committee on Special Education (CSE) noted that the child had difficulty paying attention in large groups, that he produced erratic results and constantly needed to refocus, and that he had visual-motor difficulties. For the fourth grade during the 1996-97 school year, the CSE recommended that the child remain in a self-contained class with a student-teacher ratio of 15:1, except for reading. It also recommended that he receive group counseling once per week, and individual occupational therapy once per week .

        In March, 1997, the CSE amended the child's individualized educational program (IEP) to provide that he be mainstreamed for all subjects except mathematics, and receive forty-five minutes of resource room services four times per week (Exhibit R-23, Transcript pages 826-830). On May 20, 1997, the CSE recommended that the child be placed in a self-contained class for language arts and mathematics, and be mainstreamed for all other subjects (Exhibits R-30, R-31, R-32). At some point thereafter, the CSE apparently recommended that the child's placement be changed from a self-contained class to mainstream classes with resource room support (Exhibits R-38, R-39).

        On October 6, 1997, the CSE amended the boy’s IEP to provide that he be placed in a self-contained class for language arts and math (Exhibits R-38, R-39, R-41). At the end of the 1997-98 school year, the child’s fifth grade teacher reported that the boy did not work on his own, and required constant supervision in the classroom (Exhibit R-55). His reading skills were found to be slightly below grade level, while his math skills were more significantly delayed (Exhibit R-59).

        In May, 1998, the CSE recommended that the child be placed in an "inclusion" class, i.e. a class consisting of regular education and special education sixth grade students for the 1998-99 school year. The CSE did not include occupational therapy on the boy’s IEP because the boy’s occupational therapist recommended that it be discontinued. Testing modifications included flexible scheduling, extended time limits, test directions revised, directions and questions read, directions simplified, and use of aids and a calculator (Exhibit R-60).

        Upon entering sixth grade, the child began to experience significant behavioral difficulties. Throughout October, November, and December, the child was suspended six times for confrontations with other students, or refusing to comply with directions (Exhibit R-87). During that time period, the child's principal devised several plans to help the child succeed in school. From October 21 through October 31, 1998, a teacher remained with the child throughout the school day to observe the child's interactions with other students. At the hearing, the school principal testified that the child caused disruptions in class every day during this period of time. The school psychologist met with the child on a regular basis. The school’s guidance counselor and principal both scheduled their days to be available to intercede if the child needed assistance. The child also had a special education teacher, a teaching assistant, and regular education teacher in each class (Exhibit R-68). Respondent contacted other school districts to ascertain if they had an alternative placement for the child. Although seven schools were contacted, only one school responded that it would consider placing the child (Exhibit R-70). In November, the CSE met to perform a behavioral functional assessment and develop a behavior intervention plan. The CSE determined that the child's behavioral difficulties were not attributable to his disability (Exhibits R-71, R-72, R-74).

        Between December, 1998 and May, 1999, the child's teachers attempted to implement the behavior plan, but they had little success (Exhibit R-126). On December 3, 1998, a meeting was held between the child's father, the principal and the superintendent of schools. It was agreed that the father would contact Dr. Kent a psychiatrist, for an evaluation of the child at district expense. In addition, the child’s schedule was changed to a four-period modified day, and a tutor was to provide one-to-one instruction upon arriving home from early dismissal. The agreement was to remain in place pending receipt of Dr. Kent's evaluation, and a subsequent CSE meeting (Exhibit R-80).

        In January, 1999, the child was evaluated by Dr. Kent. However, he did not have the boy’s school records because petitioners declined to consent to having respondent send them to Dr. Kent. On March 3, the CSE amended the child's IEP to shorten the child's school day, until his psychiatric evaluation was completed. Although petitioners agreed to the shortened school day, they continued to refuse to release the child's records to the evaluating psychiatrist. The CSE minutes report indicate that the CSE was contemplating taking steps to compel the parents to release the records (Exhibits R-90, R-91).

        In a letter dated March 1, 1999, the child's tutor informed the principal that she was no longer welcome in the child's home, and that she had spent the majority of her time attempting to get the child to do his work, rather than actually helping him with the work (Exhibit R-92). On March 30, 1999, the CSE concluded that the child should return to full-day inclusion classes effective April 12, 1999 (Exhibit R-97). Dr. Kent, who attended the March 30 meeting, recommended that the child attend the Sagamore Children's Program for 30 days in order to undergo an intensive evaluation. The parents agreed to consider Dr. Kent's recommendation (Exhibit R-97).

        On April 19, 1999, the CSE recommended that the child be placed in a self-contained classroom with a student-teacher ratio of 9:1:2 at BOCES, on a 12-month basis beginning in July, 1999. The CSE also recommended that the child receive group counseling once a week, and individual counseling once a week. The child's father disagreed with the CSE’s recommendation (Exhibits R-102, R-104). Although the CSE had submitted a request for placement to the BOCES, no specific class at the BOCES was recommended by the CSE (Exhibits R-103, R-104, Transcript pp. 766-774).

        On April 30, 1999, the boy allegedly picked up his teacher’s scissors and threatened another student. He also reportedly refused to obey the teacher’s direction to leave the classroom, and threw things out the classroom window. The school principal testified that the child had struck and cursed him after he arrived at the classroom. The child eventually calmed down, and was removed from his classroom.

        The CSE reconvened on May 3, 1999. Neither of the child's parents attended the meeting. The CSE affirmed its prior recommendation of a BOCES placement with related services (Exhibits R-106, R-107, R-125). On May 5, 1999, the father requested an impartial hearing (Exhibits Jt-1, R-110). On that day, the school psychologist filed a report of suspected child abuse or maltreatment with the Department of Social Services. The report alleged that the parents were neglectful in failing to seek psychiatric treatment for their child (Exhibit R-111). I note that the allegations were ultimately determined to be unfounded (Exhibits P-13A, P-13B).

        On May 19, 1999, the boy's father met with an assistant superintendent of schools, a school psychologist, and the school principal to discuss an alternative school schedule for his son. The schedule was developed because of the April 30, 1999 incident in the boy’s classroom. The assistant superintendent explained that the child would receive individual instruction in his core curriculum from a special education teacher, and that he would participate in art, music and physical education with the regular education fifth grade class (R-114). The lower grade was selected because of the boy's immature behavior. A teaching assistant was assigned to monitor him during lunch.

        On May 21, 1999, the parents met with school officials in an attempt to mediate a resolution to their dispute. No agreement was reached. On May 24, 1999, respondent appointed a hearing officer to determine petitioners' claims against the district, as well as respondent's claim that it should be allowed to conduct a psychiatric evaluation of the child without petitioners' consent. The Board of Education asserted that one hearing officer should hear both issues (Exhibits Jt-3, R-117).

        The boy's triennial psychological evaluation was completed on May 24, 1999. He was found to have average cognitive skills, with a relative weakness performing tasks measuring his social judgment and awareness in social situations. On the Woodcock-Johnson Tests of Achievement which were administered to him on May 24, 1999, the boy achieved grade equivalent scores of 7.6 for letter-word identification, 11.9 for word attack, 3.3 for passage comprehension, 4.3 for calculation, 4.4 for applied problems, 3.3 or dictation, and 3.4 for proofing (P-6). The school psychologist recommended that the boy be screened by the BOCES for possible placement in a BOCES program (R-116).

        On May 28, 1999, the CSE developed a plan for an interim alternative educational setting (IAES) pursuant to 20 USC 1415 (k) for the child as the result of April 30, 1999 incident. The results of the child’s triennial evaluation were discussed. Neither of the boy's parents was in attendance at the meeting, although they had been notified of the meeting. The plan which the CSE adopted on May 28 incorporated the schedule developed by the father, assistant superintendent, principal and psychologist at the May 19 meeting. In addition, group counseling was included as a related service. Testing modifications included flexible scheduling, extended time limits, test directions simplified and read aloud, test questions read aloud, and the use of aids and a calculator (Exhibit R-118, R-119).

        During Summer of 1999, the child was evaluated twice at the parents' request. He was evaluated by Dr. Keith Ditkowsky, who is a psychiatrist at Schneider Children's Hospital. Dr. Ditkowsky diagnosed the child as having an Attention Deficit Hyperactivity Disorder (ADHD), Oppositional Defiant Disorder and a Learning Disorder NOS. Dr. Ditkowsky recommended that the child receive behavior therapy inside and outside of school, and that the child try psychostimulant medication. Dr. Ditkowsky opined that petitioners' son "would benefit from placement in a structured, therapeutic setting with a small teacher to student ratio, where a behavioral approach could be employed to assist with his difficulties" (P-15).

        A social worker who had previous experience counseling the child also evaluated him. He reported that the child was experiencing conflict with his peers, and he opined that continued years of victimization could lead the child to express greater aggression. He believed that the child had a Depressive Disorder NOS, and ruled out ADHD and an Oppositional Defiant Disorder. The social worker disagreed with Dr. Kent's recommendation of a temporary placement at a day treatment hospital. He felt other options should first be attempted before placing the boy in the BOCES program recommended by the CSE. He recommended individual psychotherapy, family psychotherapy, psychological testing, school intervention by the child's therapist, appropriate extra-curricular social activity, and a full-time special education aide for the boy (Exhibit P-9).

        The hearing was originally scheduled for June 21, 1999, but was adjourned at petitioners' request. The hearing was rescheduled for July 29 (Decision p. 3). In a letter dated July 16, 1999, the parents requested that the hearing officer recuse himself because the parents felt that he had prejudged the case as the result of conversations between the hearing officer and the attorneys for the parties (Exhibit Jt-9). The hearing officer declined to recuse himself (Decision pp. 37-41; Transcript pp. 27-28). Although petitioners assert that the hearing officer denied their recusal motion, they do not explicitly ask me to review that determination. In any event, I find that the limited record with regard to this issue does not afford a basis for annulling that determination.

        The hearing took place on July 29, July 30, August 23, August 26, September 7, and September 27, 1999. Petitioners asserted that the Board of Education had improperly placed the child in an interim alternative educational setting for the remainder of the 1998-99 school year, and had recommended an inappropriate placement for him during the 1999-2000 school year. In his 2/14/00 decision, the hearing officer found that he had no jurisdiction to address the issue of the boy’s interim alternative educational setting. He did so because he found that petitioners had not filed a request for a due process hearing with regard to that issue, nor had they raised the issue during conference calls he had held with the parties before the hearing commenced. I note that petitioners have not challenged this part of the hearing officer’s decision in this appeal, which I do not review. The hearing officer found that the CSE had properly evaluated the child and had developed appropriate IEP goals and objectives to meet the child's needs. He further found that the recommended placement at BOCES was reasonably calculated to confer educational benefit upon the child in the least restrictive environment. The hearing officer upheld the CSE’s recommendation that the child be placed in the BOCES program. He also held that the Board of Education could share the boy’s educational records and information with the child's evaluating psychiatrist so that the doctor could complete an evaluation of the child.

        Petitioners acknowledge that their son had behavioral difficulties in his sixth grade inclusion class during the 1998-99 school year. They contend that the inclusion class did not provide enough support to their child. Nevertheless, they oppose the CSE’s recommendation for placement in the BOCES program. Petitioners assert that the IEP which the CSE prepared for the 1999-2000 school year failed to accurately describe their son’s needs because it did not include the results of the child’s triennial psychological evaluation, and it failed to include adequate annual goals and short-term objectives which were related to his learning disabilities. In addition, they assert that the IEP did not include an explanation of the extent to which the child would not participate in regular education programs, nor did it include information regarding the child’s strengths or how his strengths were considered in developing the IEP. They also challenge the CSE’s recommendation of the BOCES program on a number of 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).

        I will first consider petitioners’ assertion that their son’s IEP did not accurately describe his needs. The IEP for the 1999-2000 school year which the CSE prepared on April 19, 1999 included the results of the boy’s last psychological evaluation, which was performed on March 1, 1996. Federal and State regulations require that each child with a disability be reevaluated at least once every three years (34 CFR 300. 534 [b]; 8 NYCRR 200.4 [e] [4]). This child’s triennial evaluation was performed in May, 1999, after the CSE had prepared his IEP. I must agree with petitioners that the IEP did not adequately describe their son’s current needs because it did not include the results of his triennial evaluation.

        Petitioners assert that the goals and objectives were inappropriate because they did not address the child's specific learning disabilities, or his ADHD. Although the CSE did develop extensive goals and objectives, I agree with petitioners that no goals were developed pertaining to the child's deficits in reading and language arts. With regard to goals and objectives pertaining to ADHD, I point out that although the child appears to have been regarded as having ADHD, there was no medical diagnosis of that condition until Dr. Ditkowsky’s evaluation in July, 1999. Petitioners refused to release the child's records to Dr. Kent, thereby precluding an earlier diagnosis. An IEP must contain an explanation of the extent to which the student will not participate in regular education programs (8 NYCRR § 200.4[c][2][v]). The child's IEP did not contain such an explanation.

        At the hearing, a school psychologist testified that no specific class had been identified at BOCES because there would be no BOCES placement before the child had been screened by the BOCES, information had been provided by the school district, and a meeting with the parents had occurred. None of these prerequisites took place because of petitioners’ objection to the proposed recommendation (Transcript p. 766). A CSE's recommendation of a placement prior to a decision by the recommended entity that it will accept the child as a student is premature, and does not satisfy a board of education's obligation to offer a free appropriate public education (Application of a Child with a Disability, Appeal No. 98-32; Application of a Child with a Disability, Appeal No. 93-15). I find that for all the above-mentioned reasons, the Board of Education did not sustain its burden of showing that its CSE’s recommendation was appropriate.

        Petitioners also challenge the hearing officer’s determination that the child's school records should be released to the evaluating psychiatrist. I concur with the hearing officer that the records should be released, notwithstanding petitioners’ refusal to consent to the release of the records. The child clearly has difficulty maintaining attention, and has manifested some significant behavioral problems. It is imperative that the CSE’s evaluation include a complete psychiatric evaluation, which would include a review of pertinent records by the evaluating psychiatrist. Although the parents obtained a psychiatric evaluation immediately prior to the initiation of the hearing, the Board of Education is not required to accept petitioners' evaluation. It is well settled that boards of education have the right to select individuals or institutions to evaluate children with disabilities (Vander Malle v. Ambach, 673 F. 2d 49 [2d Cir., 1982]; Rettig v. Kent City School District, 720 F. 2d 466 [6th Cir., 1983]; DuBois v. Connecticut State Board of Education, 727 F. 2d 48 [2d Cir., 1984]). In the event that a child's parent is dissatisfied with the evaluation performed for the CSE, the parent may obtain an independent evaluation at the school district's expense, subject to the school district's right to initiate a hearing to establish that its evaluation is appropriate (34 CFR 300.503; 8 NYCRR 200.5 [a][1][vi]). A CSE must also consider any evaluation material which a parent wishes to submit to the CSE (8 NYCRR 200.5 [a][1][v]).

        I have considered petitioners' further assertions and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer’s decision is hereby annulled to the extent that it upheld the CSE’s recommendation that the child be placed in the BOCES program for the 1999-2000 school year.