02-008

       Petitioner, the Board of Education of the Monticello Central School District, appeals from the determinations of an impartial hearing officer that it failed to establish the appropriateness of the program its Committee on Special Education (CSE) recommended for respondents’ son for the 2000-01 school year and that it failed to establish the adequacy of the evaluations of their son and of the other students in his class upon which the CSE relied in making its recommendation for their son. Petitioner further challenges the rulings of the hearing officer relating to the student’s pendency placement and his retention of jurisdiction over this matter. The appeal must be sustained in part.

        During the 2000-01 school year, respondents’ son was nine years old and in the fourth grade. During the preceding school year, respondents resided in the New Paltz Central School District, and their son was placed by the CSE of that district at the Brookside School, a private school which has been approved by the Commissioner of Education to contract with school districts for the provision of educational programs to students with disabilities. The student entered petitioner’s school district in October 2000 (Exhibit C) and began attendance in a special class operated by the Sullivan County Board of Cooperative Educational Services (BOCES) on November 29, 2000 (Exhibit 25-1). He was identified by the CSEs of both New Paltz and Monticello as a student with multiple disabilities (Exhibits 4, 5), and there appears to be no dispute regarding that issue. His disabilities include cerebral palsy, retinopathy of prematurity, and a seizure disorder. He uses an elbow brace and wears an ankle foot orthotic (AFO) on his left foot.

        The record contains no indication that a CSE meeting was held from the time respondents first contacted petitioner in October 2000 until the CSE meeting of January 10, 2001. While there appears to have been agreement between the parties that the student would attend the special class operated by Sullivan County BOCES, there is disagreement concerning the conditions under which such placement was made. Respondents believed that the placement was for a 30-day trial period, following which they could remove their son from that program if they so wished. Petitioner argues that the placement was not so conditioned and that the district had simply indicated that the CSE would review the placement after 30 days.

        At its meeting on January 10, 2001, the CSE recommended that respondents’ son be placed in a special class with a maximum of 12 students, one teacher, and an additional staff person for each three students in the class. Although the individualized education plan (IEP) recommended for respondents’ son (Exhibit 5) indicates that the student was to spend 60 percent of his time in special education and to receive regular physical education, it appears from the record that it was intended that he spend all of his time in special education and that his physical education program was actually adapted to address his individual needs (Transcript pp. 175-176). In addition, the student was scheduled to have a 1:1 full time aide and to receive individual occupational therapy twice each week, individual physical therapy three times each week, and individual speech services three times each week. The CSE recommended that respondents’ son continue in the special class operated by Sullivan County BOCES which the student had entered on November 29, 2000.

        By letter dated March 14, 2001, respondents requested an impartial hearing, asserting that the district had failed to provide an appropriate program addressing their son’s individual needs. A hearing was held on August 29, September 6, October 3 and 4, and November 1 and 2, 2001. In a decision dated December 18, 2001, the hearing officer concluded that the district failed to establish the appropriateness of the placement and program recommended for respondents’ son and that the district had failed to demonstrate that it obtained the required evaluations of respondents’ son and of the other students in the special class in which he was placed. The hearing officer further determined that the student’s pendency placement until the completion of the necessary evaluations, recommendation of an appropriate placement, and completion of any due process proceedings was the parents’ choice of either the Brookside School or the Sullivan Diagnostic Treatment Center. Finally, the hearing officer retained jurisdiction over "any issues arising from the implementation of this decision involving the placement of the student from November 29, 2000 to date."

        Petitioner contends that the hearing officer erred in several respects regarding the issue of the student’s placement pending completion of the recommendation process and any subsequent review proceedings. Petitioner argues that the hearing officer should not have addressed the pendency issue because it was never submitted to him, that the pendency placement for the student was Sullivan County BOCES rather than the Brookside School or the Sullivan Diagnostic Treatment Center, that the hearing officer erred in offering the parents two options from which to choose regarding pendency, and that the hearing officer incorrectly determined that the placement at Sullivan County BOCES constituted a change in placement from the last agreed-upon IEP. Petitioner further contends that the hearing officer improperly retained jurisdiction over this matter, that he improperly determined that the district failed to evaluate the student properly, that he incorrectly concluded that the IEP developed by petitioner’s CSE at its January 10, 2001 meeting constituted a change from the last IEP prepared while the student resided in New Paltz, that there was an adequate basis in the record to conclude that the student made adequate progress at the Sullivan County BOCES, that the hearing officer improperly ordered that the student be placed elsewhere than the placement recommended by the CSE, and that the program recommended by the CSE offered and provided respondents’ son with a free appropriate public education.

        Addressing the procedural issues raised by petitioner, I find that the hearing officer improperly decided the pendency issue. In their hearing request, respondents described the nature of the problem for which they requested the hearing as "[t]he school district has failed to provide an appropriate program that can address [the student’s] individual special education needs" (Exhibit 1). As a proposed solution to the problem, respondents suggested "a therapeutic program that can provide individualized instruction and related services that will address [the student’s] special education needs" (Exhibit 1). In a letter dated May 1, 2001, respondents’ attorney wrote that the parents "are seeking to place [the student] in a therapeutic program that can provide individualized instruction and related services that will address [the student’s] special education needs" (Exhibit 3). There is no indication in the record of the hearing that the parents ever sought to raise the issue of their son’s pendency placement. Moreover, in their answer in this appeal, respondents admit that the only issues before the hearing officer were "the appropriateness of the of the District’s placement for [the student] during the 2000-2001 school year" (Petition, paragraph 4) and their claim "that [the student] requires a private day program to appropriately address his individual educational needs" (Answer, paragraph 2).

        Generally, a student with a disability must remain in his or her then current placement during the pendency of an impartial hearing or an appeal to a State Review Officer, unless the board of education and the parents otherwise agree. If a student is applying for initial admission to a public school and the district and the parents are unable to reach agreement on an alternative placement, the student must be placed in the public school program until all such proceedings have been completed (8 NYCRR 200.5[l]). In 1989, the United States Education Department’s Office of Special Education Programs opined that if a child with a disability moves from one school district to another district within the same state, and the child’s parents and the new school district are unable to agree upon an interim placement for the child, the new district must implement the child’s old IEP "to the extent possible" until a new IEP is developed and implemented (EHLR 213:265). In order to develop the record fully with regard to whether the new district has implemented "the child's old IEP ‘to the extent possible,’" it is necessary to have the pendency issue clearly presented and addressed at the hearing.

        Here, the hearing officer concluded that the status quo placement of the student was either the Brookside School or the Sullivan Diagnostic Treatment Center. However, there was insufficient evidence in the record to establish that Brookside continued to be a viable alternative following respondents’ move to Monticello or that Sullivan Diagnostic Treatment Center could provide the required program and services and was willing to do so. Given the information provided in the record, it is not possible to determine whether either of the programs identified by the hearing officer constituted implementation of the student’s New Paltz IEP "to the extent possible". It is likewise not possible to determine whether the Sullivan County BOCES program identified by the district properly constituted the student’s interim placement. Accordingly, I conclude that the hearing officer erred in raising and determining the pendency issue in his decision. Having so concluded, I note that the parties retain the authority to agree on a mutually acceptable pendency placement for the student.

        Petitioner also challenges the hearing officer’s retention of jurisdiction in this matter. In his decision, the hearing officer retained "jurisdiction over any issues arising from the implementation of this decision involving the placement of the student from November 29, 2000 to date." When a request for a hearing is received, a board of education must appoint a hearing officer from its rotational list of hearing officers, unless the parties have agreed that a hearing officer should retain jurisdiction to ensure the equitable implementation of his or her decision in a prior proceeding (Application of a Child with a Disability, Appeal No. 96-45). Although a hearing officer may retain jurisdiction in certain limited instances without the consent of both parties (Application of a Child with a Disability, Appeal No. 98-9). I find that there is no authority to generally assume jurisdiction with respect to all matters reportedly arising from the implementation of the hearing officer’s decision. I therefore agree with petitioner that the hearing officer exceeded his jurisdiction in this matter.

        A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having 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 (Bd. 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 Suspected of Having a Disability, Appeal No. 93-9). An initial evaluation of student suspected of having a disability must include a physical examination, an individual psychological evaluation or a written report from a psychologist indicating that further evaluation is unnecessary, a social history, an observation of the student in the current educational placement, and such other assessments or evaluations as are necessary to make an appropriate recommendation (8 NYCRR 200.4[b][1]). Reevaluations must take place whenever the CSE, the student’s parent, or the student’s teacher deems it appropriate, but at least once every three years, and must be "sufficient to determine the student’s individual needs, educational progress and achievement, the student’s ability to participate in instructional programs in regular education and the student’s continuing eligibility for special education" (8 NYCRR 200.4[b][4]). One component of both an initial evaluation and of any reevaluation is a review of existing evaluation data to determine what additional data, if any, are needed in order for the committee to make appropriate recommendations for the student (8 NYCRR 200.4[b][5]).

        In order to make an appropriate recommendation, it is necessary to have access to the appropriate evaluative information. Had respondents’ son come from New Paltz with all of the requisite evaluations, the CSE could have relied on that information, rather than obtaining all new evaluations, in formulating its recommendations for the student. Unfortunately the record does not contain sufficient evaluative information to make an appropriate recommendation for respondents’ son. Notwithstanding the student’s physical disabilities, there is no report of a physical examination in the record, nor is there any indication that the CSE had access to such a report. Similarly, the record contains neither a psychological evaluation nor a written report of an assessment indicating that a psychological evaluation was unnecessary (8 NYCRR 200.4[b][2]). The record does contain references to an assessment using the Vineland Adaptive Behavior Scales on July 8, 1999. That assessment resulted in age equivalent scores of 1.4 in communication, 1.7 in daily living, and 1.0 in socialization. However, use of the Vineland alone does not constitute a complete psychological evaluation (8 NYCRR 200.1[bb]).

        In the absence of the required evaluative information, the CSE acted without a sufficient basis in recommending an educational placement and program for respondents’ son. As a part of its reevaluation of the student, the CSE must include, as a component of its physical examination, an assessment of the need to modify the AFO used by the student. In addition, given the student’s past use of augmentative communication devices, the appropriateness of continuing such use should be evaluated and, if found to be appropriate, specified on his IEP. Similarly, the evaluation should include an assessment of the need for and specifics of an adapted physical education program for the student. Although it appears that both augmentative communication services (Transcript pp. 82-83) and adapted physical education (Transcript p. 175) were provided to the student at the Sullivan County BOCES, neither was included on his IEP. If such services are determined to be appropriate, they must be included on the IEP (8 NYCRR 200.4[d][2][iv], [vii][c], and [xii]).

        In the absence of an adequate evaluation, it is not possible for me to determine whether the class recommended for respondents’ son might form the basis of an appropriate program for the student. However, from the information in the record, I find that the IEP under review in this proceeding (Exhibit 5) is deficient in several respects. Should the CSE continue to recommend a special class described in section 200.6(g)(4)(ii) or (iii) of the Regulations of the Commissioner of Education, the IEP must include a provision for the related service of parent counseling and training (8 NYCRR 200.6[g][8] and 200.1[kk] and [qq]). In addition, as noted above, the IEP must include whatever augmentative communication devices and adapted physical education programs are found to be appropriate for the student.

        In addition to determining that petitioner had failed to obtain an appropriate evaluation of respondents’ son, the hearing officer also found that it failed to "demonstrate that it conducted the required evaluations of…the students in the Sullivan County BOCES special education class where it placed" respondents’ son. Clearly petitioner was under no obligation to evaluate any other child in the BOCES class who was not a resident of petitioner’s district, and the hearing officer erred in requiring such evaluations. However, any further consideration of whether the respondents’ son was appropriately grouped with the other students in the BOCES class must await the further evaluation of respondents’ son as required by the hearing officer and by this decision.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer is hereby annulled insofar as it relates to the pendency placement of respondents’ son, insofar as the hearing officer retained jurisdiction over this matter, and insofar as the hearing officer concluded that petitioner was obligated to evaluate students other than respondents’ son; and

IT IS FURTHER ORDERED that this matter be remanded to petitioner’s CSE for further action in accordance with the terms of this decision.