01-036

        Petitioner appeals from an impartial hearing officer’s decision upholding the recommendation by respondent’s Committee on Special Education (CSE) to change the educational placement of her son to a Specialized Instructional Environment-VII (SIE-VII) class, and denying petitioner’s request to have her son be placed in a non-state-approved private school at respondent’s expense. The appeal must be sustained in part.

        There is a preliminary procedural question to be addressed. The Board of Education has not answered the petition even though its time to submit an answer was extended until June 15, 2001, upon a request by its counsel and with petitioner’s consent. 8 NYCRR 279.3 provides that the notice with petition shall advise the respondent that "[I]f an answer is not served and filed in accordance with the provisions of such regulations [of the Commissioner of Education], the statements contained in the petition will be deemed to be true statements, and a decision will be rendered thereon by a State Review Officer of the State Education Department." A decision of the State Review Officer was annulled by the New York State Supreme Court because the decision was based upon an independent review of the record, rather than the recitations in an unanswered petition for review (Matter of Arlington Central School District v. State Review Officer of the New York State Education Department, 185 Misc. 2d 560 [2000]). However, that decision is being appealed, and I must respectfully decline to follow it in this appeal because it would not allow me to fulfill my obligation to examine the entire record (34 CFR 300.510 [b][2][i]), and to make an independent decision (20 USC 1415[g]). The facts alleged in the petition will be deemed to be true unless found to be inconsistent with the evidence in the record.

        Petitioner’s son is 14 years old. At the time of the hearing in this proceeding, the student was in the eighth grade, having begun the 2000-01 school year in I.S. 204 in Community School District 30. The record contains very little information regarding his educational history. The student reportedly received special education services for some undisclosed reason, secondary to behavior problems, from the second through fourth grades (Exhibit 1). He reportedly began having difficulties with not doing his class work and talking in class while in the fifth grade.

        Petitioner’s son reportedly began the 1999-2000 school year at respondent’s J. 10, but later attended J. 204, I.S. 126, and I.S. 141 during that year. He was apparently classified as learning disabled at that time (Exhibit 6). In December 1999, the student was apparently referred for a psychological evaluation because of serious misbehavior and academic dysfunction. He achieved a verbal IQ score of 95, a performance IQ of 84, and a full scale IQ score of 90. Projective testing revealed him to feel alone, lonely, friendless and rejected by his peers. He reportedly manifested aggressive and violent fantasies (Exhibit 1). The student’s current individualized education program (IEP) notes that on December 2, 1999, the student was also assessed using the Weschler Individual Achievement Test (WIAT). He achieved approximate grade level (and percentile) scores of upper sixth (23) for reading decoding, beginning seventh (45) for reading comprehension, beginning sixth (14) for computation, and upper sixth (37) for problem solving (Exhibit 2).

        The student was transferred to respondent’s I.S. 141 in June 2000 after he had been suspended from his prior school because he had allegedly threatened to cut another child with a plastic CD cutter (December 6, 2000 Transcript p. 10). During the summer of 2000, respondent’s CSE recommended that the student attend a non-public school. Therefore, the board of education offered petitioner a "Nickerson" letter (see Jose P. et al. v. Ambach et al., 79 C 270, U.S. D.C. E.D. N.Y., 1982) authorizing her son’s placement in an approved private school for the 2000-2001 school year at respondent’s expense (December 6, 2000 Transcript pp. 24-25).

        Instead of attending a non-public school, the student began the 2000-01 school year in an eighth grade regular education class at respondent’s IS 141, with special education services including resource room and counseling. In early October 2000, petitioner’s son was absent from I.S. 141 and was found roaming the halls of a different intermediate school. When the dean of students at that school brought him to the principal’s office, petitioner’s son reportedly threatened to kill the dean, the principal and others, and threatened to bomb the school (December 6, 2000 Transcript pp. 11-13).

        On or about October 27, 2000, petitioner’s son was involved in another incident, in which he reportedly threatened to kill his mathematics teacher. A teacher testified at one of the hearings in this matter that the student had to be removed from class two or three times a day because of altercations with other students and other disturbances (December 6, 2000 Transcript pp.8-9). She further testified that there were occasions on which the student refused to enter his classroom or apparently left the building without permission. On one such occasion, the school received a call from the police saying that the student was being held in detention in Brooklyn (December 6, 2000 Transcript pp. 16-17).

        The student was removed from school, and petitioner was reportedly told that her son could not return to school until he had been evaluated by a psychiatrist to ascertain whether the student was a threat to himself or others. In early November, petitioner requested an impartial hearing seeking an order that would authorize her son’s placement in a non-state approved private school, and challenging her son’s exclusion from school.

        While the hearing request was pending, respondent’s CSE met on November 28, 2000, and offered to place the student in an SIE-VII class. Since petitioner disagreed with the SIE-VII recommendation, respondent agreed that the student could return to his pendency placement in a general education classroom. However, on the advice of her attorney, petitioner decided to keep her son at home, since the impartial hearing was about to be held (December 6, 2000 Transcript pp. 7, 29-30, Exhibit 2). Therefore, petitioner’s son was not attending school when the hearing began on December 6, 2000.

        At the hearing, petitioner asked that her son be returned to a general education placement and have the assistance of a consultant teacher for one hour per day, plus an increase in counseling with a licensed psychologist or social worker anywhere from three to five times per week. Petitioner admitted that she did not previously agree that her son should receive a psychiatric evaluation. However, she agreed to provide consent for such an evaluation at the hearing. Petitioner through her attorney also indicated that she would pursue a private school placement for her son (December 6, 2000 Transcript pp. 19-22).

        At the close of testimony on December 6, 2000, the impartial hearing officer rendered an interim decision on the record, in which she found that the student represented a possible danger to himself and others. She issued an interim order temporarily placing the student in a Modified Instructional Services-II (MIS-II) classroom with a 1:1 behavior management paraprofessional. She further ordered that a functional behavioral assessment and psychiatric evaluation be performed and that the student receive counseling from the school psychologist twice per week (December 6, 2000 Transcript pp. 30-31).

        As a result of the hearing officer’s interim order, the student was placed in an MIS-II class at respondent’s I.S. 126, and was assigned an individual crisis intervention paraprofessional. He also received counseling by a school psychologist, who prepared a functional behavioral assessment of the student. On January 15, 2001, a psychiatrist who was board certified in child and adolescent psychiatry interviewed petitioner and the student. Based upon these interviews and his review of a psychological evaluation and social history from December 3, 1999, the psychiatrist formed a diagnostic impression of Oppositional Defiant Disorder, and stated that the student might have an underlying attention deficit hyperactivity disorder (ADHD). He stated that the student would benefit from a small, structured class setting, individual therapy twice per week, consideration of a medication trial to address a possible ADHD, and consideration of a day hospital placement if the student continued to exhibit significant behavior disturbance in spite of those interventions (Exhibit 1).

        The student was suspended from school on two occasions in January 2001. On January 10, 2001, the student was suspended for four days (Exhibit 6). The crisis intervention teacher at IS 126 testified that the student was suspended for injuring a woman with an ice ball. He testified that the woman who had been hurt by the ice ball came into the building at dismissal time and identified petitioner’s son as the student who had thrown it (February 13, 2001 Transcript p. 63). The woman was bleeding from her nose and was very frightened. An ambulance was called (February 13, 2001 Transcript p. 71)

        On January 22, 2001, the student was again suspended (Exhibit 6). The crisis intervention teacher also testified regarding the incident that had led to this suspension. The student had left his classroom without permission and went into a classroom where he started to destroy another pupil’s project. When the other pupil objected, a fight ensued, and petitioner’s son had put the pupil in a headlock and choked him to the point that the pupil had difficulty breathing and had to be taken to the nurse (February 13, 2001 Transcript p. 65). When a teacher tried to take the project from the student to prevent its destruction, he grabbed her hand and refused to release it unless she released the project (Exhibit 6). Later that day, the CSE recommended home instruction for the student as an interim measure. However, it is not clear from the record whether home instruction was actually initiated (Exhibit 6).

        On February 12, 2001, the CSE recommended that the student be classified as emotionally disturbed and placed in an SIE VII program with a 12:1+1 child to adult ratio, individual counseling sessions for 40 minutes twice per week, and the adoption of a behavior management plan (Exhibit 2). On the same day, petitioner was offered a placement for her son in an SIE-VII class in P. 75 (Exhibit 3).

        The hearing resumed on February 13, 2001. The supervisor of special education programs at I.S. 126 testified that a behavior modification system had been established, but the student was not at all responsive to it. She further testified that the student came and left his classroom as he pleased, running down the hallway or a flight of stairs to escape from the assigned paraprofessional. There were also several incidents during which the student disrupted other classrooms by banging on doors, and on one occasion, he threw water into a classroom (February 13, 2001 Transcript p. 77-78). Although the student had attended the MIS-II class for a period of time, he was no longer attending school when the hearing resumed (February 13, 2001 Transcript p. 7).

        A school psychologist testified that he had held nine counseling sessions with the student over the period of time that the student had attended the MIS-II class. He stated that the student had an oppositional and defiant manner of relating, and that he exhibited poor judgment and impulsivity. The psychologist noted that the student appeared to have the ability to do well, and opined that the student needed a significantly more structured setting in a therapeutic environment. He recommended that family therapy and the use of medication be considered. He also testified that the student could not be managed in an MIS-II classroom, and should be placed in an SIE-VII classroom (February 13, 2001 Transcript pp.30-32). The supervisor of special education programs for Community School District 30 testified that the SIE-VII program would better address the student’s needs because it had a therapeutic and management component that was not available in a community school (February 13, 2001 Transcript pp. 41-42). The student’s special education mathematics teacher concurred that the student needed to be placed in a more restrictive environment than an MIS-II class (February 13, 2001 Transcript p. 90).

        Petitioner offered no documentary evidence or testimony to refute respondent’s position; however, she stated through her attorney that neither an SIE-VII nor an MIS-II placement was appropriate for her son. She requested instead that he be returned to general education with counseling (February 13, 2001 Transcript p. 96).

        In her decision rendered on March 13, 2001, the hearing officer upheld the CSE’s recommendation that the student be classified as emotionally disturbed, finding that he met the criteria in the Regulations of the Commissioner of Education for that classification. She also found that respondent had met its burden of proving that the recommended placement in an SIE-VII program was appropriate for the student. She noted that petitioner’s request for a "Nickerson" letter for placement in an unapproved school was not an appropriate remedy.

        Petitioner argues that the hearing officer erred in finding that the SIE-VII classroom would be an appropriate placement because she had no information about the needs and abilities of the other students in the proposed class. She also contends that her son’s February 12, 2001 IEP was untimely because it was prepared one day before the impartial hearing. Petitioner requests that her son be returned to a general education class, with support services including counseling and resource room.

        I will first consider petitioner’s argument about the untimeliness of the IEP. Petitioner does not identify any specific standard that was allegedly violated by the CSE. I note that this was not an instance of an initial referral to the CSE. In essence, petitioner contends that it was inequitable for the CSE to prepare her son’s new IEP on the day before the impartial hearing. Petitioner was represented by counsel at the hearing. There is no evidence that either petitioner or her counsel requested an adjournment of the hearing on February 13, 2001, as they could have done. I find that petitioner’s argument is without merit.

        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). In light of the psychiatric evaluation and functional behavior analysis entered into evidence by respondent, I am satisfied that respondent met its burden of establishing the appropriateness of this student’s classification in accordance with the criteria in 8 NYCRR 200.1(zz)(4). Moreover, it does not appear that petitioner is currently challenging her son’s classification as emotionally disturbed.

        A board of education also 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).

        Although petitioner does not expressly contest any portion of her son’s IEP, I have nevertheless reviewed the document. It appears to accurately reflect the limited evaluative data that are in the record before me. The IEP describes the student’s academic skills, which are basically in the low average range, as well as his management needs. It notes that he would benefit from a multisensory instructional approach, in addition to receiving counseling and having a behavior modification plan. A two-page behavior intervention plan is annexed to the boy’s IEP. Although I find that it could have been more precise in identifying the behaviors that interfere with the student’s learning and the steps that will be taken to alter those behaviors, I find that on balance it is sufficiently detailed to enable the teachers and aides who will work with the student to understand the CSE’s expectations. The student’s IEP annual goals and objectives appear to be relevant to his needs.

        A CSE must recommend appropriate special education services to afford a student a reasonable opportunity of achieving his IEP goals in the least restrictive environment. In view of the student’s prior history, I must concur with the CSE’s determination that a general education program, even with supportive services such as counseling and resource room, would not be appropriate. There is little information about the MIS-II program in the record. It appears to be more restrictive than a regular education placement, but less restrictive than the recommended SIE-VII placement. At the hearing, respondent’s witnesses described how the SIE-VII program would provide the therapeutic milieu and structure that petitioner’s son appears to need. I find that the CSE’s program recommendation is supported by the record.

        Respondent is further obligated to demonstrate that it complied with the regulatory requirement to suitably group the student with other students of similar ability and needs for instructional purposes. (8 NYCRR 200.6[a][3]). 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(kk). Another means would be to offer the testimony of an individual who is knowledgeable about the students in the proposed class to provide information on such issues as their intellectual functioning, academic deficits, and needs (Application of a Child with a Disability, Appeal No. 00-014).

        The record does not contain a class profile for the SIE VII class that was recommended for petitioner’s son. The assistant principal of the SIE VII program as P. 75 did testify that a student with oppositional behavior was not uncommon in his school. However, he knew nothing about petitioner’s son and could not compare him to other students in the program at the school. When questioned about the specific class in which the student would be placed, the assistant principal merely stated that it had a student: teacher ratio of 12:1+1 (February 13, 2001 Transcript pp. 54-59). Accordingly, I must find that respondent failed to demonstrate that the student would have been appropriately grouped for instructional purposes.

        Having found that respondent failed to meet its burden of proving that it had offered petitioner’s son an appropriate educational placement, I will remand this matter to the CSE to update its information in order to ascertain this student’s current special education needs and to determine an appropriate placement. I have considered petitioner’s request that her son be placed in a non-state approved private school. Neither the hearing officer nor I may place a child in an unapproved school (Antkowiak v. Ambach, 838 F. 2d 635 [2d Cir. 1988]; Application of a Child with a Disability, Appeal No. 98-31). I must note that respondent’s offer of a "Nickerson letter" authorizing petitioner to place the student in an approved private school was still extant at the time of the hearing.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer’s determination that respondent had established the appropriateness of its recommended placement is hereby annulled; and

IT IS FURTHER ORDERED that within 30 days after the date of this decision, respondent’s CSE shall recommend an appropriate placement for petitioner’s son for the current school year.