02-045

       Petitioner appeals from an impartial hearing officer's decision declining to order respondent to assign a 1:1 aide to her daughter in the child's integrated special education class pending the selection of an appropriate self-contained special education class for the child during the 2001-02 school year. The hearing officer instead ordered respondent to provide an aide if the child was enrolled in a self-contained special education class. The appeal must be sustained in part.

        Petitioner's daughter was seven years old and in a first grade collaborative team teaching (CTT) class at respondent's P.S. 41 at the commencement of the hearing in February 2002. Her identification by the Committee on Special Education (CSE) as other health-impaired is not at issue in this appeal. The child first entered respondent's schools during the 2000-01 school year. In a meeting on February 26, 2001, the CSE recommended placing the child in an integrated Modified Instructional Services (MIS) IV class with a student to staff ratio of 12:1+1. The recommended class consisted of a group of no more than 12 students with disabilities integrated within a regular education class. The staff in the class included a regular education teacher, a special education teacher, and a paraprofessional. The CSE also recommended that the child receive 30 minutes of individual speech/language therapy once a week, 30 minutes of group speech/language therapy twice a week, 30 minutes of individual occupational therapy twice a week, and 30 minutes of individual counseling once a week (Exhibit 13). Petitioner requested that the CSE recommend a 1:1 aide for the child, but the CSE declined to do so. Petitioner did not request an impartial hearing to review the CSE's actions.

        Subsequent to the February 2001 CSE meeting and prior to the commencement of the 2001-02 school year, respondent implemented a new continuum of services for its students with disabilities. As a result, respondent's integrated MIS classes became CTT classes (March 18, 2002 Transcript p. 41). Petitioner's daughter was enrolled in a first grade CTT class of 18 children, including ten regular education students and eight students with disabilities, at P.S. 41 for the 2001-02 school year. At the beginning of the school year, instruction was provided by a regular education teacher and a special education teacher, assisted by a paraprofessional. Later in the school year, two student teachers and a 1:1 aide assigned to another child joined the class. During all relevant time periods, petitioner's daughter received the related services recommended at the February 26, 2001 CSE meeting (February 15, 2002 Transcript p. 41).

        Shortly after the commencement of the school year, the child's special education teacher advised petitioner that the child was having difficulties (March 18, 2002 Transcript p. 21). School staff met with the child's parents in September and advised them that the class was not appropriate for their daughter, that she needed a smaller class, and that she should be further evaluated and her program reviewed at a follow-up CSE meeting. Petitioner testified that the child's behavior had changed significantly for the worse since she began school, and agreed that a smaller class might be appropriate for the child (March 18, 2002 Transcript pp. 22-24).

        School staff members observed the child in her class on October 1 and 3, 2001. The observers reported that the child engaged in inappropriate behavior, was unable to answer questions relating to classwork or to remain focused on classroom discussion, engaged in off-task conversation, and left the appropriate area of the classroom. Although the child could be quieted, she ignored active attempts to redirect her and could not be reengaged with the classroom lesson (Exhibit 10).

        Following psychological, educational, speech/language, and occupational therapy evaluations and a social history update of the child in the fall of 2001, the CSE reconvened on October 26, 2001. It recommended that the child be reassigned to a self-contained class with a student to staff ratio of 12:1+1 for the remainder of the 2001-02 school year. The CSE also recommended that the child receive individual speech-language therapy once a week for 30 minutes, speech-language therapy twice a week in a group of 2 children for 30 minutes a session, individual occupational therapy once a week for 30 minutes, occupational therapy twice a week in a group of 2 children for 30 minutes a session, and individual counseling once a week for 30 minutes. Petitioner attended the meeting and agreed to the recommendation subject to the identification of an appropriate classroom (March 18, 2002 Transcript pp. 92, 94).

        Petitioner requested that the CSE recommend that the child receive the assistance of a 1:1 aide while she remained in the CTT class, but the CSE declined to make such a recommendation. Subsequent to the CSE meeting, respondent offered to place the child in a 12:1+1 self-contained class at either P.S. 3 or P.S. 11. However, petitioner was concerned about whether the teachers assigned to those classes would remain for the balance of the school year, and she ultimately refused to consent to her child's placement in either class. By letter dated January 14, 2002, petitioner's advocate requested an impartial hearing challenging the CSE's failure to recommend a 1:1 aide to assist petitioner's daughter (Exhibit A).

        The hearing commenced on February 15, 2002 and concluded on March 18, 2002. There was no dispute regarding the identification of the child as an other health-impaired student, and the parties agreed that a self-contained special education class with a student to staff ratio of 12:1+1 was appropriate for the child (Exhibit 1; February 15, 2002 Transcript pp. 38, 52-53, 55, 58). However, they did not agree about whether the self-contained class at P.S. 3 that respondent had offered to the child was appropriate or whether the child should be provided with a 1:1 aide pending her enrollment in an appropriate self-contained special education class.

        The hearing officer rendered an initial decision on April 15, 2002 and a corrected decision on April 26, 2002. She noted that the child's parents were concerned about moving their child to a new placement during the 2001-02 school year, and that they wished to have an aide be assigned to the child in her CTT class at P.S. 41 for the remainder of the school year. She found that the CTT class was not an appropriate placement for the child and would not become an appropriate placement with the addition of an individual aide for the child. The hearing officer failed to make an explicit finding with regard to the self-contained class in P.S. 3. She noted that it was important to make the child's transition to a new, self-contained class as smooth as possible, and ordered respondent to provide the child with a 1:1 aide for the balance of the 2001-02 school year, if petitioner agreed to enroll the child in the self-contained class at P.S. 3 or at another recommended site.

        Petitioner asserts that the CSE should have included a 1:1 aide in its February 2001 recommendations for the child's program during the 2001-02 school year. Although the CSE's February 2001 recommendations were referred to during the hearing, the appropriateness of those recommendations was not at issue during the hearing. This proceeding concerns the recommendations made at the CSE's October 26, 2001meeting. As a result, there is no record upon which I could decide that issue, and I must find that the issue is not properly raised in this appeal (Application of a Child with a Disability, Appeal No. 01-038; Application of a Child with a Disability, Appeal No. 00-019). I must reach the same conclusion with regard to petitioner's contention that respondent's CSE conducted unnecessary evaluations of her child prior to its October 26, 2001 meeting, since that issue was not properly raised at the hearing.

        Petitioner asserts that the CSE should have assigned a 1:1 aide to her child in the CTT class pending her transfer to an appropriate self-contained special class and that the hearing officer should have delayed the child's transfer to such a class until the beginning of the 2002-03 school year. In essence, petitioner is seeking a modification of her daughter's pendency placement. Both state and federal law require that a child remain in his or her then current placement, unless the child’s parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the child (20 U.S.C. § 1415[j]; Education Law § 4404[4]). Pendency has the effect of an automatic injunction, which is imposed without regard to such factors as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D. v. Ambach, 694 F.2d 904 [2d Cir. 1982]; Drinker v. Colonial School Dist., 78 F.3d 859 [3d Cir. 1996]). However, in situations in which the State Review Officer, in an appeal from the decision of an impartial hearing officer, agrees with a parent that the placement sought by the parent is appropriate, that placement becomes the child's pendency placement (34 C.F.R. § 300514[c]).

        In this instance, respondent declined to agree to the modification of the pendency placement of petitioner's daughter by adding a 1:1 aide to her then current placement. To the extent that petitioner seeks my agreement that the child's placement should include a 1:1 aide until she is transferred to an appropriate self-contained special class, I do not find that such a modification would be appropriate. At the hearing, petitioner agreed with respondent that the CTT class was not an appropriate program for the student. Petitioner’s daughter's needs are such that they could not be met in an inclusion classroom, even with the addition of a 1:1 aide. She lacks many of the readiness skills required to perform academic work, as a result of which classroom instruction takes place at a level that she cannot understand. Teaching her even the most basic readiness skills will be very challenging because she has difficulty attending, difficulty processing visual information, difficulty processing verbal information, is easily frustrated, perseverates, exhibits speech and motor delays, lacks appropriate social skills and demonstrates delayed adaptive behavior. In addition, she reportedly becomes oppositional when demands are placed on her. Even if an aide could manage her attending and behavioral difficulties, petitioner's daughter still does not possess the prerequisite skills to perform first grade assignments. Institution of a separate pre-readiness curriculum would be required in order to provide her with appropriate instruction. This separate curriculum would form the basis for her primary instruction, making it inappropriate for implementation by an aide. In sum, providing an interim aide to petitioner's daughter, without making major instructional changes, would not constitute an appropriate means to address her individual needs even on an interim basis.

        With regard to petitioner's assertion that the hearing officer should have delayed her daughter's transfer to a self-contained class until the start of the 2002-03 school year, I note that this appeal was not commenced until May 8, 2002, and that the 2001-02 school year has passed. The State Review Officer is not required to determine issues that are no longer in controversy (Application of a Child with a Handicapping Condition, Appeal No. 91-45). Accordingly, I find that petitioner's claim in this regard is now moot.

        Petitioner additionally contends that respondent did not meet its burden of proof to show that the self-contained class at P.S. 3 proposed for her daughter was appropriate for her. As noted above, the hearing officer did not explicitly determine that the self-contained class would have been appropriate for the child. However, her offer to order respondent to provide an aide if petitioner would agree to place her child in that classroom implies that the hearing officer found that class to be appropriate.

        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]). As part of its burden of proof, a board of education must show that the student would have been suitably grouped for instructional purposes with students having similar individual needs with regard to levels of academic or educational achievement and learning characteristics, levels of social development, levels of physical development, and the management needs of the students in the classroom (8 NYCRR 200.6[g][2] and [3]).

        There is no class profile in the record. Other than the conclusory assertion by a school psychologist serving as "chairperson designee, CSE District 2" that the children in the proposed class were of "appropriate age and academic function" (March 18, 2002 Transcript p. 109), the record contains no information upon which to assess the similarity of the needs of petitioner's daughter with those of other students in the class. It further appears that the school psychologist lacked first hand knowledge of the proposed class. Moreover, there is insufficient information about the daily routine of the class and about the instructional strategies or methodologies used, and there is no explanation of the curriculum. In the absence of such information, I find that respondent failed to establish the appropriateness of its recommended placement at P.S. 3.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer’s decision is hereby annulled to the extent that it could be construed as having determined that petitioner's child would have been appropriately placed in the proposed self-contained special education class in P.S. 3.