00-063

        Petitioners appeal from an impartial hearing officer’s decision which held that respondent had offered to provide an appropriate educational program for petitioners’ daughter for the 1999-2000 school year. Petitioners also appeal from the hearing officer’s determination that petitioners’ daughter’s classification was appropriate and his finding that her "pendency placement" for purposes of this proceeding was not the preschool that she had attended. Petitioners further assert the hearing officer was not impartial. The appeal must be sustained in part, but only with respect to the hearing officer’s pendency determination.

        Petitioners’ daughter was five years old and in kindergarten at the time of the hearing. She had attended a non-special education nursery school three days a week for two and one half hours each day beginning in September 1998 (Exhibits SD-5, SD-8). In October 1998, she was referred by her parents to respondent’s Committee on Preschool Special Education (CPSE) because the nursery school raised concerns regarding the child’s speech delay, inability to focus when spoken to, and echolalia.

        On October 16, 1998, respondent’s speech pathologist performed a speech and language evaluation. On the Preschool Language Scale - 3 (PLS-3), the child achieved an age equivalent (and percentile) score of 2.1 (1) in both auditory comprehension and expressive communication. On the Peabody Picture Vocabulary Test III (PPVT), the child achieved an age equivalent score of 2.3 (percentile below norms). On the Expressive One Word Picture Vocabulary Test (EOWPVT), the child achieved an age equivalent score of 2.9 (6) (Exhibit SD-10).

        On October 27, 1998, the school psychologist performed a psychological evaluation. The child achieved a composite score of 66 on the Stanford-Binet Intelligence Scale - Fourth Edition, which was at the 2nd percentile and within the mentally deficient range of cognitive ability. On the Vineland Adaptive Behavior Scales, based upon information provided by the child’s mother, the child achieved standard (and percentile) scores of 60 (0.4) in interpersonal relationships, 93 (32) in play and leisure time, 91 (27) in coping skills, and 78 (7) for a social-emotional composite. The evaluator noted that the child’s echolalia, inconsistent eye contact, and personality rigidity interfered with her ability to meet the demands of the testing situation and that the results should be viewed in light of the effect these atypical behaviors may have had on the results (Exhibit SD-6).

        Respondent referred the child to the Nassau Board of Cooperative Educational Services (BOCES) for an audiological evaluation. The evaluation which was conducted on November 4, 1998 found that the child’s hearing sensitivity was within normal limits. Tympanometry suggested normal outer/middle ear function bilaterally (Exhibit SD-11).

        An occupational therapy screening was performed on November 18, 1998. The evaluator reported that the child was not able to appropriately process sensory stimuli, and that the child both wanted and avoided sensory stimuli in the environment at the same time. The therapist attempted to administer the Peabody Developmental Motor Scales, but was not able to score the results because the child could not follow simple direction or imitate required activities. The evaluator recommended occupational therapy to improve the child’s motor skills and sensory integration (Exhibit SD-9).

        Respondent’s CPSE met on November 20, 1998 and recommended that the child be classified as a preschool child with a disability, and that she be placed in a preschool program at North Shore University Hospital (NSUH) with a student:teacher ratio of 8:1+2. The CPSE further recommended that the child receive speech/language therapy individually three times per week for 30 minutes, and that she receive an occupational therapy consult once each week for 30 minutes in class. Consultation by the child’s teachers with her parents was also recommended on a twice-monthly basis (Exhibit SD-1).

        The child began attending the NSUH preschool in December 1998. In March 1999, respondent’s chairperson of special education went to the child’s preschool class at NSUH to observe her. The chairperson noted that the child followed oral directions fairly consistently, but tended to perseverate during the small group lesson and that she was echolalic. She also observed that the child was able to transition to the next activity when the teacher broke down the oral instructions into simple steps (Exhibit SD-4).

        On April 20, 1999, a pediatric neurologist who was treating the child reported his diagnosis of "significant expressive and developmental aphasia, which is the end result of a previous more pervasive developmental language disorder." He recommended that the child remain in the NSUH preschool program (Exhibit SD-20).

        On April 30, 1999, the NSUH preschool prepared an annual review summary of the child’s participation in their program. The report noted that the child had made a smooth transition to the class, and that she had benefited from the language based special education program. It indicated that the child continued to need a small student to teacher ratio to continue to develop language and to acquire and retain new concepts (Exhibit SD-14).

        Respondent’s CPSE convened on May 7, 1999 to conduct an annual review (Exhibit SD-2). It determined that the child needed a summer program to prevent significant regression and recommended that she continue at the NSUH preschool through August 11, 1999 (Exhibit SD-15). The CPSE was then closed out, but those in attendance reconvened as a Committee on Special Education (CSE) to determine the child’s placement for the 1999-2000 school year (Transcript, p. 55).

        The CSE classified the child as multiply disabled, and recommended that she be placed in a special class for students with communication disorders at respondent’s Seaford Manor School with a student:teacher ratio of 8:1+1. The CSE further recommended that the child receive individual speech/language therapy three times per week for 30 minutes, and that she receive occupational therapy once each week for 30 minutes individually and once each week for 30 minutes in a group of five (Exhibit SD-16).

        The individualized education program (IEP) prepared for the child contained twelve objectives in basic cognitive skills, four objectives in activities of daily living skills, five social/emotional objectives, seven objectives in classroom function skills, two self-help objectives, two parent consultation objectives, four speech /language goals with nineteen objectives, and three occupational therapy goals with five objectives. The IEP includes a notation that the child was unable to interact appropriately with her peers due to delays in receptive, expressive and pragmatic language skills (Exhibit SD-16).

        Petitioners did not feel that the recommended placement for the 1999-2000 school year was appropriate for their daughter, and requested that she remain at NSUH to attend kindergarten. Following petitioners’ June 3, 2000 request for a due process proceeding (Exhibit SD-22), the parties attempted to resolve the dispute through mediation. When it was not resolved, petitioners requested an impartial hearing on August 1, 1999 (Exhibit SD-25).

        The hearing began on April 14, 2000. In addition to challenging the appropriateness of their daughter’s classification and the proposed placement for the 1999-2000 school year, petitioners asserted that respondent was obligated to pay for the child’s placement at the NSUH preschool during the pendency of this proceeding. In a written interim decision dated May 5, 2000, the impartial hearing officer found that the child should remain in her preschool program at NSUH while the CSE’s recommendation for the 1999-2000 school year was being appealed. The hearing concluded on June 21, 2000.

        In his final decision rendered on August 14, 2000, the hearing officer found that respondent had appropriately classified petitioners’ daughter as multiply disabled, and that it had offered her a free appropriate public education (FAPE) at its Seaford Manor School during the 1999-2000 school year. The hearing officer found that petitioners had failed to cooperate with respondent, and that their objection to respondent’s proposed placement for their daughter was founded upon unwarranted assumptions about the ability of children with Down syndrome who were in the recommended class. The hearing officer rescinded his interim decision dated May 5, 1999 and found that the NSUH preschool was not the child’s pendency placement opining that her advancement to kindergarten represented petitioners’ unilateral change of placement.

        Petitioners contend that respondent failed to meet its burden in showing that their daughter had been appropriately classified, in showing that the other students in the proposed class had needs similar to their daughter’s, and in showing that the IEP was appropriate. Petitioners argue that the hearing officer failed to address the need for a 12-month program, and that he lacked impartiality. They further assert that his determination that the NSUH preschool was not the pendency placement was erroneous. Respondent contends that the hearing officer’s decision should be affirmed in all respects, and the appeal denied.

        A board of education bears the burden of establishing the appropriateness of the classification recommended by its CSE (Application of a Child with a Disability, Appeal No. 94-16; Application of a Child Suspected of Having a Disability, Appeal No. 94-8; Application of a Child with a Handicapping Condition, Appeal No. 92-37; Application of a Child with a Handicapping Condition, Appeal No. 91-11). Respondent’s CSE classified petitioners’ daughter as multiply disabled, but petitioners contend that she should be classified as speech/language impaired. Multiply disabled is defined as:

A student with two or more disabilities that result in multisensory or motor deficiencies and developmental lags in the cognitive, affective or psychomotor areas, the combination of which cause educational problems that cannot be accommodated in a special education program solely for one of the impairments.

(8 NYCRR 200.1[mm][8]).

        The parties agree that the child does have a speech/language impairment. The issue is whether the classification of multiply disabled is appropriate in light of the child’s other disabilities. Respondent’s CSE chairperson testified that the child was classified as multiply disabled because of her developmental delays in speech, cognitive abilities, and motor skills (Transcript, p. 63). Respondent’s school psychologist testified that the child exhibited diminished cognitive functioning and speech/language deficits (Transcript, p. 144). Respondent’s speech/language pathologist testified that the child had significant deficits in receptive and expressive language skills, was echolalic, and had perseverative speech (Transcript, pp. 186-187). She explained that the child lacked pragmatic speech skills.

        In support of their contention that their daughter should have been classified as speech/language impaired, petitioners rely upon the testimony of a psychologist from the NSUH preschool program. The psychologist testified that the child met the criteria for autistic disorder at the time of her testimony in June 2000 (Transcript, p. 539). However, she opined that she would nevertheless have recommended classification as speech/language impaired at the time she examined the child (Transcript, pp. 582-583). The NSUH psychologist testified that it can be difficult to determine whether a young child is exhibiting autistic characteristics or developmental language characteristics. She further testified that the diagnosis of autism or language disorder is more stable by the time the child reaches the age of five or six years (Transcript, pp. 566-567).

        While the record would seem to indicate that the child currently meets the criteria for a pervasive developmental disorder, the issue is whether her classification as multiply disabled in May 1999 was appropriate. At that time the child was four years and seven months old. The evaluation conducted by respondent indicated that the child exhibited speech/language deficits, a delay in motor skill development, and deficient cognitive abilities. In light of the testimony of petitioners’ own witness regarding the instability of a young child’s developmental characteristics, it appears that respondent’s CSE reasonably deferred making a classification of autism at that time. At the same time, it recognized that the child was exhibiting more than just speech deficits. Accordingly, I find that respondent has met its burden of proof with respect to the classification of the child as multiply disabled in May 1999.

        A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 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 student’s needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child with a Disability, Appeal No. 93-9).

        The child’s IEP indicates that the evaluations demonstrated her inability to interact appropriately with her peers due to speech delays in receptive, expressive and pragmatic language skills (Exhibit SD-16). I find that the IEP established annual goals and objectives which were related to the child’s identified educational deficits. I have considered the testimony of petitioners’ witness, a speech/language pathologist, who opined that the child needed goals at a lower level (Transcript, p. 395). This testimony, however, is contradicted by the testimony of the child’s current special education teacher at the NSUH preschool who indicated that the child was in fact achieving some of the objectives which had been challenged as being overly ambitious.

        The next issue that must be determined in this appeal is whether the special educational services recommended by the CSE, i.e., instruction in a communication disorder class at its Seaford Manor School, would have afforded petitioners’ daughter a reasonable chance of achieving her IEP annual goals and objectives. I find that they would have. Respondent’s CSE chairperson testified that the proposed language-based class used a multisensory approach to address the needs of the individual students placed there (Transcript, p. 57). Respondent’s speech pathologist testified that the class utilized educational instruments such as the Intellitools program, the picture exchange communication system (PECS) and Mayer Johnson pictures to address the child’s educational needs (Transcript, pp. 488-489). Respondent’s special education teacher also testified concerning the program’s ability to meet the child’s educational needs (Transcript, pp. 216-217).

        The speech pathologist who testified on petitioners’ behalf indicated that, based upon her 45-minute observation, the program at respondent’s Seaford Manor school was inappropriate, because it was confusing and because she did not observe the use of the PECS system (Transcript, pp. 358-359). On cross-examination, this witness admitted that respondent’s proposed classroom was the first communication based program she had visited in eight years (Transcript, p. 389). She admitted further that she did not speak with anyone at Seaford Manor School (Transcript, p. 400). The psychologist who testified on behalf of petitioners testified that he had no opinion on the appropriateness of the program that had been offered to the child at the Seaford Manor School (Transcript, p. 611).

        Respondent was also required to demonstrate that it had complied with the regulatory requirement to suitably group the child with other children for instructional purposes (8 NYCRR 200.6 [a][3]; 8 NYCRR 200.13 [a]). Typically a board of education demonstrates similarity of grouping for instructional purposes by offering a class profile, i.e., a chart listing the needs of the children in accordance with the four criteria set forth in 8 NYCRR 200.1 (jj), or by having an employee testify about the needs of those children. At the hearing in this proceeding, respondent offered both the testimony of several of its employees and a class profile (Exhibit SD-27). The CSE chairperson testified that the child’s concerns fit appropriately within the concerns of the rest of the class (Transcript, p. 62). The school psychologist testified that the students were very similar in terms of their needs were and how those needs were met in spite of their different medical diagnoses (Transcript, p. 146). The special education teacher of the proposed class testified that the child’s needs and abilities matched the needs and abilities of the other students in the class (Transcript, p. 218). She further testified that the child’s cognitive needs were very consistent with the other students and that the students similarly needed to work on social skills, attention skills and behavior skills (Transcript, pp. 224-225).

        Petitioner testified that she had visited the proposed class and was shocked that it contained four children with Down syndrome (Transcript, p. 293). She recognized, however, that the children in the class with Down syndrome had many of the same educational needs as her daughter (Transcript, p. 300). The speech pathologist who testified on petitioners’ behalf alleged that the other students in the proposed class were lower functioning than petitioners’ daughter. However, the pathologist’s opinion is rejected as lacking credibility because it was based entirely upon her 45-minute observation of the class. The psychologist from the NSUH preschool who testified on behalf of petitioners stated that if the students’ functioning levels were similar, their diagnosis was irrelevant (Transcript, p. 588). Based upon the foregoing, I find that respondent has demonstrated that it had complied with the regulatory requirement to suitably group the child with other children for instructional purposes.

        Petitioners also challenge the manner in which the hearing was conducted. Petitioners assert that the hearing officer badgered their witnesses, and fell asleep during their witnesses’ direct testimony. While the transcript contains the statements of the petitioner and her attorney that the hearing officer’s eyes were closed and he appeared to be sleeping, the hearing officer responded that he had no difficulty paying attention (Transcript, pp. 440-441). A hearing officer must avoid even the appearance of impropriety, and must render a decision which is based on the record (Application of a Child with a Disability, Appeal No. 98-55). Regrettably, the hearing transcript in this proceeding reveals that there were a number of sharp exchanges between petitioners or their attorney and the hearing officer (e.g. Transcript, pp. 332-334, and p. 617). Although petitioners’ attorney must bear some of the responsibility for the acrimonious exchanges between herself and the hearing officer, I must point out that a hearing officer, like a judge, must be patient, dignified and courteous in dealing with litigants and others with whom the judge deals in an official capacity (Application of a Child with a Handicapping Condition, Appeal No. 91-40).

        I have carefully considered the entire record, including the evidentiary rulings which the hearing officer made and his allocation of the burden of proof between the parties. Petitioners assert that the hearing officer erroneously determined that a psychological evaluation performed in May 2000 was inadmissible at the hearing (Transcript, p. 547). The hearing officer did, however, permit the direct testimony of the psychologist who performed the examination. Having reviewed the entire record, I find that there is no basis for annulling the hearing officer’s decision on the grounds of actual or apparent bias against petitioner.

        Turning to the issue of the child’s pendency placement, the hearing officer found that petitioners had changed their daughter’s placement when the child advanced from pre-kindergarten to kindergarten at the NSUH preschool program. I disagree with the hearing officer’s finding. In Application of a Child with a Disability, Appeal No. 96-48, I concluded that a child who has received preschool special education services and thereafter became eligible to attend kindergarten was not making an initial application to public school. In that appeal, I found that the fact that the child had passed from the CPSE’s jurisdiction to the CSE’s jurisdiction as a school-age child did not alter the child’s pendency placement. The legal analysis that I applied in that appeal applies equally to the facts of this appeal. The pendency provisions of federal and state law have the effect of an automatic injunction (Drinker v. Colonial School District, 78 F.3d 859 [3d Cir. 1996]). Implicit in the maintenance of the status quo under the pendency provisions is the requirement that the school district continue to finance an educational placement which it made and to which the parent agreed prior to the parent's request for a hearing (Zvi D. v. Ambach, 694 F.2d 904 [2d Cir. 1982]).

        The appropriateness of the placement recommended by respondent’s CSE would have been relevant in determining whether respondent was required to pay for the child’s tuition for any portion of the school year which occurred after this proceeding had concluded. Since the 1999-2000 school year ended during the pendency of this proceeding, however, respondent was obligated to pay for the child's tuition for the entire school year (Application of a Child with a Disability, Appeal No. 96-48).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer is hereby annulled to the extent that he determined that the NSUH program was not this student’s pendency placement, and;

IT IS FURTHER ORDERED that respondent shall pay for the child’s tuition in NSUH preschool program during the 1999-2000 school year, upon presentation by NSUH to respondent of a bill for the child’s tuition.