00-093

         Petitioners appeal from an impartial hearing officer’s decision which upheld the recommendation by respondent’s Committee on Special Education (CSE) that petitioners’ son remain in a self-contained special education class of the Jefferson-Lewis-Hamilton-Herkimer-Oneida Board of Cooperative Educational Services (BOCES) instead of being returned to a regular education class at his local elementary school. Petitioners also appeal from the hearing officer’s denial of their request to obtain reimbursement for the cost of an independent evaluation. The appeal must be sustained in part.

        The Board of Education asserts that petitioners’ appeal is untimely. A notice of intention to seek review must be served upon a member of the board of education, the district clerk or the chief school officer at least ten days prior to service of the petition and within thirty days after receipt of the hearing officer’s decision (8 N.Y.C.R.R. § 279.2[b]). The petition must be served upon one of those individuals within forty days after receipt of the decision (8 N.Y.C.R.R. § 279[c]). Respondent does not dispute that its counsel agreed to accept service of the notice of intention to seek review by mail as stated in the sworn affidavit of petitioners’ attorney. Petitioners’ attorney received a copy of the decision on October 31, 2000. The notice of intention to seek review was served by mail on November 27, 2000, and received by respondent’s attorney on November 28, 2000. I find that service of the notice of intention to seek review was timely because it was within the 30-day time period required under the regulations. On December 4, 2000, respondent’s attorney reportedly agreed to accept service of the petition on behalf of her client (Affidavit of Paul Kelly, Esq.). A copy of the petition was mailed and faxed to respondent’s attorney on December 8, 2000. Respondent contends that its counsel did not agree to accept service of the petition by facsimile, but it does not address the issue of service by mail. In any event, it asserts that the facsimile copy was incomplete, and that the petition was not personally served on its superintendent until December 11, 2000. I find that service of the petition upon respondent was timely because the fortieth day from the date of receipt of the decision fell on Sunday, December 10, 2000, and the petition was served on Monday, December 11, 2000.

        Petitioners’ son was ten years old at the time of the hearing in June 2000. He had been diagnosed with autism at the State University of New York (SUNY) Health Science Center in Syracuse when he was two years of age. The Vineland Adaptive Behavior Scales (Vineland) were administered to him at the Jefferson Rehabilitation Center when he was 30 months old. His functional adaptive skills were found to be at the age equivalent level of a 20-month-old child. Petitioners’ son attended a preschool program at the Jefferson Rehabilitation Center in an integrated classroom with a one-to-one aide. He received occupational and speech/language therapy.

        In 1995, the child was evaluated at the Developmental Evaluation Center of the SUNY Health Science Center in Syracuse. He was four years and ten months old at the time of the evaluation. The child achieved a standard score of 63 and age equivalent of 2-9 for his composite adaptive behavior on the Vineland. The psychological component of the evaluation indicated that the child’s level of autism was quite significant due to the severity of his functional language impairment and his very slow progress in understanding and handling social situations. Those deficits were found to compromise his overall learning capacity for age-level social interactions. The evaluation team reported that the child’s supportive and loving home environment and exposure to a comprehensive intervention program early in his life had optimized his progress (Exhibit P-36).

        At the age of five, the child attended a regular kindergarten with an individual aide at the district’s Guardino Elementary School for half of the day. He also received related services, including physical therapy, occupational therapy, and speech/language therapy during the other half of the day. Petitioners’ son was enrolled in a multi-age regular education class at the Guardino Elementary School for first grade and most of second grade. His individualized education program (IEP) for second grade during the 1997-98 school year indicated that he was to receive 300 minutes of push-in resource room services and 120 minutes of consultant teacher service per week (Exhibit D-6).

        While in the latter half of second grade, the child exhibited intense behavioral outbursts in spite of the fact that he had his own aide and was receiving a significant amount of related services. A communication notebook that was maintained at Guardino Elementary indicated that the student’s inappropriate behavior included screaming, crying, biting himself, kicking, hitting, and running around the classroom, and that by May 1998, the child’s acting out disruptive behavior was occurring almost daily (Exhibit D-15; see also Exhibit D-7).

        In May 1998, the CSE decided that the student’s placement in a regular education class was no longer appropriate because the class was not supportive of the student’s needs, and because the child’s outbursts were a significant disruption to the education of his classmates (Exhibit D-17). The CSE recommended placement in a self-contained special education class with a 12:1+ 3:1 child to adult ratio with a 1:1 aide for the 1998-99 school year. His IEP indicated he was to receive adaptive physical education, physical therapy, occupational therapy and speech/language therapy, and that he was to have an extended school year (Exhibit D-5). Since the school district lacked the student population to support the creation of a special education class for the child, he was placed through BOCES in the Brownville Elementary School in the General Brown Central School District. Petitioners agreed to this change of placement, but apparently anticipated that it would be temporary.

        From August until October 1998, the Developmental Unit of Genesee Hospital performed a multidisciplinary assessment of the child. The educational evaluator described the child as a unique and complex boy with intense management needs who required specialized, intense, and highly individualized programming to meet his educational, social, adaptive, and behavioral needs (Exhibit D-7). The speech/language pathologist member of the evaluation team recommended a small classroom placement, extensive modifications for the language of instruction and systematic teaching of social skills (Exhibit D-8). The psychologist member of the evaluation team reported that the child’s lack of language development impaired his socialization skills and adaptive behavior. He recommended highly structured and contingency managed programming for the child, and suggested that applied behavioral analysis (ABA) technique be used (Exhibit D-9). In its summary report, the evaluation team noted that it had been difficult to assess the boy’s educational skills because of his avoidance behavior and extremely limited frustration tolerance. The team surmised that the child’s increased behavioral difficulties might be caused by significant language confusion, and opined that he would be likely to respond well only to "a rather structured and behaviorally oriented program at school" (Exhibit D-10).

        On May 5, 1999, the CSE recommended that the child be enrolled in a 12:1+3:1 BOCES, class with an individual aide, at the Calcium Primary School in the Indian River Central School District during the summer of 1999 (Exhibit 16a). The child was to continue receiving speech/language therapy, occupational therapy and physical therapy during the summer.

        The CSE conducted its annual review of the child’s educational program on June 8, 1999. At that meeting, the child’s special education teacher recommended that the boy remain in the same program during the 1999-2000 school year. The child’s occupational therapist supported that recommendation. Petitioners expressed concern about having their son remain in the same program, and indicated that they might ask for another CSE meeting after their son completed the summer portion of his educational program (Exhibit D-16). The CSE recommended that the student continue to be enrolled in a 12:1+3:1 BOCES class at the Brownville Elementary School, with an individual aide, for the 1999-2000 school year. It also recommended that he receive daily speech/language therapy and occupational therapy four times per week, as well as physical therapy twice per week (Exhibit D-4).

        Petitioners objected to this recommendation because they wanted their son to be placed in a regular education class. The child’s mother requested an impartial hearing in July 1999 (Exhibit P-16). Rather than return to Brownville Elementary School when the 1999-2000 school year began, the child remained at the Calcium Primary School because the school had a room separate from the classroom where he could go when he needed a quiet place to calm down. However, his IEP was not changed to reflect the fact that he would stay at Calcium instead of returning to Brownville. His academic work occurred primarily in his ABA program on a one-to-one basis, two to three times per day for approximately one half hour, during which he was instructed in reading comprehension, math, and social skills.

        Beginning in October or November 1999, the child’s special education teacher attempted to integrate the child into the regular education setting by having him eat lunch and go with his individual aide to regular education fourth grade gym and music classes. His teacher testified that the child had done well in both classes (Transcript p. 244). Nevertheless, the student continued to have behavioral difficulties (Exhibit D-13). His teacher testified that the child’s hitting, biting and screaming was initially directed mostly at school staff, rather than other students, and that she had used behavior modification plans with him (Transcript pp. 227, 231). I note that the teacher conceded at the hearing that the student may have struck his aides on occasion as a means of communicating with them, because he lacks adequate communication skills (Transcript p. 297). She further testified that she had discussed the student’s behavior modification plans with the ABA consultant, and had modified the plans in accordance with the consultant’s advice (Transcript p. 273). The teacher testified that the student acted out in class at least once per day (Transcript p. 239).

        In a letter dated December 30, 1999, petitioner’s attorney outlined the issues to be addressed at the impartial hearing. They included a claim that the CSE had failed to conduct an adequate triennial evaluation of the student, and that it had lacked a required member when it prepared the boy’s IEP for the 1999-2000 school year. In addition, the attorney asserted that the boy’s IEP was deficient and that the recommended placement was inconsistent with the requirement that each child with a disability be placed in the least restrictive environment (LRE) (Exhibit P-14). The impartial hearing was scheduled to commence on January 25, 2000, but petitioners withdrew their request the day before the hearing was to begin.

        In February 2000, petitioners’ attorney arranged for an independent evaluation of the child by an Associate Professor in the Department of Curriculum Instruction at SUNY Oswego. The evaluator observed the child in school on February 4, 2000, reviewed his school records, and interviewed school staff. She opined that the child needed access to the general education curriculum, with appropriate accommodations and modifications, and an augmentative communication system with multiple partners including peers. She asserted that the student’s current placement in the BOCES class afforded him little, if any, educational opportunity, and recommended that the child be returned to a regular education setting at his local elementary school (Exhibit D-4).

        The CSE considered the independent evaluator’s report at its meeting on March 13, 2000. It also heard from the child’s BOCES teacher, who reported that the child’s behavior continued to be a concern, and from a consultant who was advising the CSE on the child’s ABA program. Neither the teacher nor the consultant was reportedly in favor of the placement change advocated by the independent evaluator. The CSE was unable to come to a consensus with the child’s mother about any change in the boy’s placement (Exhibit D-44). It did revise the boy’s IEP to reflect the fact that he was enrolled in the BOCES class at the Calcium Primary School (Exhibit D-45).

        On April 17, 2000, petitioners made a new request for an impartial hearing, contending that their son’s IEP was procedurally and substantively deficient, and that the boy’s placement in the BOCES class at the Calcium Primary School was inconsistent with the LRE requirement. They asserted that their son should be placed in a grade appropriate regular education classroom in the Guardino Elementary School, and that the Board of Education should pay for the evaluation performed by the SUNY professor in February (Exhibit P-6).

        In the latter part of April 2000, the child’s special education teacher at Calcium Elementary School arranged for the child to attend regular education classes in math and science with his assigned aide. However, except when the math class was divided into small groups, the child was only able to remain in those classes for 10 to 15 minutes before he engaged in disruptive behavior, including screaming, kicking and hitting his aide (Transcript pp. 245-246).

        The hearing commenced on June 2, 2000, and it concluded on July 14, 2000. It was conducted by an individual who had not been re-certified by the State Education Department as a hearing officer. Upon the Department’s advice, the Board of Education appointed another hearing officer on August 29, 2000. The new hearing officer read the record of the hearing, and met with the parties’ attorneys on October 13, 2000.

        In a decision dated October 30, 2000, the hearing officer found that the district had demonstrated the child’s need for intensive services that could not be addressed in a regular education classroom with special educational support services. The hearing officer also found that respondent had met its burden of demonstrating the appropriateness of the student’s placement in the BOCES class, but recommended that the CSE implement a behavioral documentation system to chart the frequency, duration and intensity of the boy’s "significant behavioral events". He dismissed petitioners’ contention that the CSE had evaluated their son without their consent. In addition he concluded that the Board of Education was not required to pay for the evaluation performed by the SUNY professor because it had paid for part of the comprehensive evaluation by the Genesee Hospital in the fall of 1998.

        I must note that although petitioners challenge the IEP that was prepared for their son at the June 8, 1999 CSE meeting, they withdrew their challenge to that IEP, which was superseded by the IEP that was prepared on March 13, 2000. Therefore, I find that their claim as to an alleged defect in the composition of the CSE at the June 8, 1999 meeting is not properly before me (Application of a Child with a Disability, Appeal No. 95-78). In addition, I note that a regular education teacher appears to have attended the March 13 meeting (Exhibit D-44).

        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).

        Petitioners contend that the CSE failed to adequately evaluate their son, notwithstanding the evaluation which was performed at the Genesee Hospital in the fall of 1998. They assert that the CSE has not formally reviewed the results of that evaluation (Transcript p. 144). Petitioners also rely upon the testimony given by respondent’s expert witness, Dr. Klin of the Yale University Child Center. The witness was generally supportive of respondent’s position that the child should not be placed in a regular education class. However, Dr. Klin opined that a comprehensive psychological evaluation, a functional behavioral assessment, and an assistive technology assessment should be performed to provide more detailed information about the boy’s strengths and weaknesses and need for augmentative communication devices (Transcript pp. 81-93). A functional behavioral assessment was performed after Dr. Klin testified at the hearing, but before the hearing concluded (Exhibit D-59). It focused upon the student’s biting, hitting, throwing objects, and spitting, and included several recommendations for addressing such behavior.

        I note that the Regulations of the Commissioner of Education were amended as of January 1, 2000 to provide that an initial evaluation must include a functional behavioral assessment "for a student whose behavior impedes his or her learning". While the additional information from the assessments recommended by Dr. Klin may well prove to be useful in planning this child’s program and placement, the question before me is whether the CSE had adequate information about the child when it prepared the IEP that provided for his continued placement in the BOCES class at the Calcium Primary School. I find that it had sufficient information about the boy to decide upon his educational program. I note that Dr. Klin opined that the child needed a structured environment with intensive and consistent instruction, which was what the Genesee Hospital evaluators had recommended. The information provided by the Genesee Hospital evaluators was also consistent with the information provided to the CSE by the school staff who had worked with the child.

        Petitioners also contend that their son’s IEP does not indicate how his disability affects his participation in the general education curriculum, and lacks specificity as to his present levels of performance. Having reviewed the document (Exhibit D-45), I find that their contention is without merit. The IEP describes the student’s current levels of functioning with synopses of his teacher and service provider comments that clearly describe how his language and management needs affect his ability to benefit from instruction in the traditional regular education classroom. They also describe his present levels of performance in narrative form, rather than a recitation of standardized test scores, which is understandable given his performance on such tests. Nevertheless, I agree with petitioners that their son’s IEP annual goals should have been described with more specificity and should have included measurable mastery criteria. I also find that the IEP should have included annual goals for each of the subjects in which the student was receiving specialized instruction, such as reading.

        Petitioners assert that the BOCES class is not the least restrictive environment for their son, and they contend that he should be placed in the Guardino Elementary School with appropriate support services. Those services would include an aide, modified curriculum, behavior plan, ABA instruction, assistive technology (use of a computer and appropriate software), consultant teacher services, and additional training for respondent’s staff (Exhibit P-14). Respondent asserts that the student cannot achieve his IEP goals in a regular education setting because he needs intensive services that cannot be addressed in a regular classroom with special education support. Respondent further asserts that the child’s behavior would disrupt the education of the other students in a regular education class.

        Federal regulation provides that special classes, separate schooling or other removal of children with disabilities from the regular educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (34 C.F.R. § 300.550[a][2]).

        In determining whether a student can be educated in regular classes, it is not necessary to establish that the student will learn at the same rate, or master as much of the regular education curriculum as his or her disabled peers (Daniel R. v. El Paso Indep. School Dist., 874 F.2d 1036 [5th Cir. 1989]). The relevant question is whether a student can achieve the goals of his or her IEPwithin a regular education program, with the assistance of supplementary aids or services (Mavis v. Sobol, 839 F. Supp. 968 [N.D. N.Y. 1994]; Application of a Child with a Disability, Appeal No. 93-4; Application of the Board of Educ., Appeal No. 90-19). The fact that a student with a disability might make greater academic progress in a special education class may not warrant excluding the student from a regular education program (Oberti v. Borough of Clementon School Dist., 995 F.2d 1204 [3d Cir. 1993]). The CSE must also consider the unique benefits, academic and otherwise, which a student may receive by remaining in regular classes, e.g., language and role modeling with nondisabled peers (Greer v. Rome City School Dist., 950 F.2d 688 [11th Cir. 1991]). In addition to determining the benefit to a student of being placed in a regular education class, the CSE must also consider what effect a disabled student's presence in a regular education class would have on other children in that class (Daniel R., 874 F.2d at 1049; Greer, 950 F.2d at 697; Application of a Child with a Disability, Appeal No. 94-23).

        As noted above, Dr. Klin testified as an expert witness for respondent. He described how autistic children learn in general, and also described the results of Vineland Behavior Scales questionnaire that the boy’s teacher at BOCES had completed for him (Exhibit D-2). He testified that although the child’s writing skills were commensurate with a child of seven years of age, his interpersonal relationship score fell below the level of a two-year-old. He further testified that the child had achieved a standard score of 62 and age equivalent of 2-9 for composite adaptive behavior, and could not meaningfully process academics or participate socially at a fourth or fifth grade level (Transcript p. 61), and he cautioned against prematurely mainstreaming the child. Dr. Klin also testified that the child needed a program based on behavioral principles that would teach him to learn, and that the infrastructure at Calcium Primary School appropriately provided both individualized small groups for children with disabilities and a mainstream environment.

        The independent evaluator from SUNY Oswego testified as an expert witness on behalf of petitioners. She acknowledged that she had not reviewed the communication or psychological evaluations performed by the Developmental Unit at Genesee Hospital. The independent evaluator opined that the child’s placement in the BOCES class in the Calcium Primary School was inappropriate for him, given his abilities and needs (Transcript p. 439. She acknowledged that the boy presented "difficult and challenging behaviors" and that she had witnessed "a couple good tantrums" while she was there, but she hypothesized that his acting out behavior was related to an inability to communicate his feelings (Transcript p. 439). She expressed concern about the ability of the staff in that school to address his behavior, as well as an alleged lack of appropriate academic instruction and limited access to pupils with more well developed verbal communication abilities (Transcript p. 442).

        I have considered the independent evaluator’s reasons for recommending the placement of a student in a regular education classroom in his local community, such as access to more of an academic curriculum and more opportunity to be with capable peers. I note that respondent’s expert witness expressed doubt about the independent evaluator’s apparent assumption that petitioners’ son would model the speech and behavior of his regular education peers. Dr.Klin, who testified as an expert on autism, explained that autistic children did not in fact learn about social things from observing other children and interacting with them in a natural fashion (Transcript p. 64). He testified that petitioners’ son had not interacted with other children during his observation (Transcript p. 46). Although the student could hit a baseball in physical education, he reportedly ran randomly and was not part of the game (Transcript p. 47). In essence, Dr. Klin refuted the independent evaluator’s claim that petitioners’ son should be placed in a regular education class so that he could learn by modeling the behavior and speech of other children.

        Dr. Klin testified that the student required intensive specialized instruction to prepare him to be able to benefit from instruction in a regular education class. His testimony is consistent with the recommendations made by the Genesee Hospital evaluation team in 1998, as well as the testimony given by the student’s teacher about her attempt to mainstream the student for math and science during the spring of 2000 (Transcript pp. 245-246). The teacher’s testimony did, however, establish that the student could participate in some mainstream classes. Petitioners’ son was participating in mainstream physical education and music classes at the Calcium Primary School. I note that a videotape of the child’s participation in a musical program with his combined first and second grade class at the Guardino Elementary School demonstrated that he could perform satisfactorily in that activity in the immediate presence of an aide who redirected him (Exhibit P-43). The student’s March 2000 IEP indicated that he would not be mainstreamed for instruction in any subject (Exhibit D-45). I find that the IEP was unduly restrictive in that regard, but I cannot agree with petitioners that their son should have been placed full time in mainstreamed classes.

        I find that this student, because of the nature of his disability and the way that it affects his ability to learn, requires primary special education instruction for a majority of the school day in order to receive an appropriate education. The evidence suggests that ABA is the most effective manner of teaching the child, and that he performs better in smaller groups. The primary barrier to his successful participation in a regular education program is his inability to communicate effectively with others. His educational program must continue to focus upon breaking down this barrier, improving his behavior, and developing consistent academic skills.

        Petitioners also seek reimbursement for the cost of the evaluation performed by the independent evaluator in February 2000. Federal and state regulations provide that a parent of a child with a disability is entitled to obtain an independent educational evaluation at public expense if he or she disagrees with a school district's evaluation. However, the right to an independent evaluation is subject to the right of a school district to initiate a hearing to demonstrate the appropriateness of its evaluation. If a hearing officer finds that a school district's evaluation is appropriate, a parent may obtain an independent evaluation, but not at public expense (34 C.F.R. § 300.502[b]; 8 NYCRR 200.5[g]).

        I cannot agree with the hearing officer’s finding that the district met its duty to provide petitioners with an independent evaluation by paying for a significant portion of the evaluation by the Developmental Unit at Genesee Hospital in Rochester in the fall of 1998. The record indicates that in a September 1998 letter to petitioners, respondent’s CSE chairperson indicated that the Genesee Hospital evaluation would provide data for the child’s triennial re-evaluation because an appropriate evaluation could not be conducted within the district (Exhibit P-19). The evaluation conducted by the Genesee Hospital was therefore not an independent evaluation, but was part of the CSE’s required triennnial evaluation (8 NYCRR 200.4[b][4]).

        Petitioners disagreed with the evaluation because they believed that it did not adequately address the kind of educational program their son should receive. Respondent was obligated to either pay for the independent evaluation requested by petitioners, or initiate an impartial hearing to show that its evaluation was appropriate or that the evaluation sought by petitioners did not meet the school district criteria (8 NYCRR 200.4[g][iv] and 200.5[g][1]). The school district did not provide petitioners with the criteria, nor did it commence a hearing.

        A school district may not unduly delay the initiation of a hearing to demonstrate the appropriateness of its evaluation (Application of a Child with a Handicapping Condition, Appeal No. 90-1; Application of a Child with a Handicapping Condition, Appeal No. 92-35). However, the issue of reimbursement was addressed in the hearing that was held in response to petitioners’ April 17, 2000 request for a hearing. While I caution respondent to promptly schedule hearings in such matters when it does not wish to pay for independent evaluations, I find that there is another reason why it should pay for the independent evaluation in this matter. Although respondent’s expert witness disagreed with some of the conclusions reached by the independent evaluator, he testified that the evaluator’s report had correctly identified several deficits in the student’s educational program and had made some important recommendations (Transcript p. 63). Under the circumstances, I find that respondent should reimburse petitioners for the independent evaluation they obtained. I note that such reimbursement should not include the cost of any fee that the evaluator may have charged for testifying at the hearing.

        I have considered petitioners’ other arguments, which I find to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the portion of the hearing officer’s decision denying petitioners’ claim for reimbursement for the cost of the independent evaluation they obtained for their son is hereby annulled; and,

IT IS FURTHER ORDERED that respondent shall reimburse petitioners for the expense of such independent evaluation, upon petitioners’ submission of proof of payment for the evaluation.