02-081

       Petitioner, the Board of Education of the Springville-Griffith Institute Central School District, appeals from an impartial hearing officer’s decision which found that its Committee on Special Education (CSE) failed to recommend an appropriate program for respondent’s son for the 2002-03 school year. The hearing officer rejected the CSE’s recommendation of continuing the child’s placement in a 6:1+1 BOCES class in a neighboring school district, and determined that the child should be placed in a third grade inclusion program at a site to be determined by the CSE. The appeal must be sustained in part.

        Respondent’s son, who is diagnosed as autistic, was eight years old when the hearing in this proceeding began on May 31, 2002. He was attending a 6:1+1 BOCES third grade class in a neighboring school district, and receiving the related services of speech/language therapy, occupational therapy (OT) and counseling. In addition, he was accompanied by an aide to mainstream classes in physical education, art and music, and to lunch. The child was reportedly functioning in the low average range of intelligence, with deficits in receptive language and sensory processing that affected his ability to write. In January 2002, the child had achieved standard scores of 77 for communication, 71 for daily living, and 75 for socialization on the Vineland Adaptive Behavior Scales (Exhibit 11). In March 2002, an independent occupational therapist conducted a sensory integration and praxis test which revealed that the child had poor visual motor planning abilities, difficulty interpreting sensory information and deficits in motor planning (Exhibit 15). The child required guidance when participating in social exchanges with his peers. There is no dispute about his classification as autistic.

        In a January 2002 progress report, the child’s special education teacher indicated that the child appeared comfortable in mainstream classes and was able to follow the instructions of general education teachers with assistance from support staff (Exhibit 8). At the hearing, she described him as more social and outgoing than the typical autistic student, and she testified that he could benefit from mainstream classes with the use of supplementary aids and services (Transcript pp. 249, 257, 339-40). The teacher further testified that he was reading at the first grade level, using a whole word approach because he could not decode words phonetically (Transcript pp. 74, 80, 83). In math, he was working in a second grade textbook (Transcript p. 90). His speech teacher testified that his vocabulary skills were at approximately second grade level (Transcript p. 710).

        A behavior management program used throughout the school day allowed the child to earn stars on a chart at thirty minute intervals for appropriate behavior (Exhibit 32). The charts show an increase in inappropriate behavior in February 2002, and teacher reports from that period indicate an increase in episodes of aggression and property destruction, described as scribbling or tearing papers and pushing desks (Exhibits 7 and F). However, the child’s behavior improved after he began taking medication in May 2002 (Exhibit 53; Transcript p. 139). In describing the child’s management needs, his teacher stated that he needed a schedule board, priming, and, at times, additional staff support (Transcript p. 351). She indicated that he needed to be prompted to complete his work, but had made progress in social groups in third grade (Transcript pp. 185-86, 448).

        At a more than four hour annual review of the child on April 10, 2002, the parties agreed that the child should repeat the third grade during the 2002-03 school year (Exhibit 12A; Transcript p. 615). The parent requested an increase of OT services to five individual sessions per week, but the CSE recommended that he receive individual OT three times per week, OT in a group once per week, and an OT consult once per week (Exhibit 37). In addition, it recommended that the child receive individual speech/language therapy three times per week, and two times per week in a group, individual counseling three times per week and group counseling twice per week. The parent agreed with the CSE’s recommendation to conduct a functional behavioral assessment (FBA), but requested that it be done by a cognitive behavioral specialist rather than by BOCES staff.

        The CSE recommended that the child continue to attend the 6:1+1 BOCES class for the 2002-03 academic year, with continued mainstreaming for physical education, art, music and lunch, and to increase his mainstreaming to include third grade science and social studies, with additional support staff and modified curricula as needed (Exhibit 10). During the first part of the CSE meeting, the parent appeared to be satisfied with his son’s placement in the BOCES class. However, he later objected to his son’s placement in the BOCES class, and requested that his son be placed in a general education third grade class with either an aide or consultant teacher, and that all related services be delivered on a push-in basis (Exhibit 12C).

        On April 25, 2002, the child’s father requested an impartial hearing to obtain a placement for his son in one of petitioner’s elementary schools, an FBA conducted by a trained cognitive behavioral specialist, OT as recommended by the child’s physician, and the development of an appropriate individualized education program (IEP) (Exhibit 2). At the hearing, petitioner’s witnesses testified that the recommended BOCES program was appropriate, and several opined that the student would have difficulty in the general education setting due to his academic level and management needs (Transcript pp. 538, 661, 1035, 1058). The parent testified that his son had learned negative and aggressive behaviors from the emotionally disturbed children in the BOCES class, and that he wanted him to be able to model the behavior of general education students. (Exhibit 12; Transcript pp. 1459-60, 1489-90). He was also concerned about the long distance his son had to travel to reach the BOCES class (Transcript p. 894).

        The hearing concluded on July 24, 2002, and the hearing officer rendered his decision on August 13, 2002. He ruled that the Board of Education had failed to meet its burden of proving that its CSE had recommended an appropriate placement because it had not demonstrated that respondent’s son would have been suitably grouped for instructional purposes with the children in the BOCES class, as required by 8 NYCRR 200.6(g). In reaching that conclusion, he found that the CSE chairperson had improperly delegated responsibility to the BOCES supervisor to ensure that the needs and ability of the students in the BOCES class were comparable to those of respondent’s son (Application of a Child with a Handicapping Condition, Appeal No. 92-33).

        The hearing officer also found that the school district had failed to demonstrate that the proposed placement was the least restrictive environment (LRE) for the child, because it had not shown that the child could not succeed in a general education class with the appropriate supports. Noting that the child appeared to make academic progress with frequent intercession by a special education teacher, he concluded that the LRE for the child was an inclusion class composed of special education students and regular education students cooperatively taught by a special education teacher and a regular education teacher. The hearing officer remanded all other IEP issues to the CSE. To address the child’s allegedly disruptive behavior, he directed that the CSE perform an FBA, subject to the parent’s right to request an independent assessment at public expense if he found the assessment to be inappropriate. The hearing officer retained jurisdiction in the event that a disagreement arose with respect to implementing his decision.

        Petitioner claims that the child would have been appropriately placed in the 6:1+1 BOCES program for the 2002-03 school year because he made progress there during the 2001-02 school year. It also asserts that respondent’s son would be inappropriately placed in a less restrictive setting because his management needs are intensive and he does not learn at the same rate as students in the general education third grade. 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]).

        An appropriate program for a student with a disability must be reasonably calculated to enable the child to receive meaningful educational benefits (Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176,192 [1982]; Walczak v. Florida Union Free Sch. Dist., 142 F. 3d 119, 132). In addition, the recommended program must be offered in the least restrictive environment for the child (20 U.S.C. §1412 [a][5][A]; 34 C.F.R. §300.550[b]; 8 NYCRR 200.6[a][1]). Although petitioner has raised a number of issues, the central issue in this appeal is whether the petitioner’s CSE offered respondent’s son an appropriate educational program in the least restrictive environment.

        Federal regulation provides that special classes, separate schooling or other removal of children with disabilities from the regular educational environment occurs 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 addition, the Regulations of the Commissioner of Education provide that to the maximum extent appropriate, provision shall be made for the eventual inclusion of students with autism into resource room programs or regular education classes (8NYCRR 200.13[a][5]).

        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. Sch. Dist., 874 F.2d 1036 [5th Cir. 1989]). The relevant question is whether a student can achieve the goals of his or her IEP within 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 Bd. 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 Sch. 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, such as language and role modeling with nondisabled peers (Greer v. Rome City Sch. Dist., 950 F.2d 688 [11th Cir. 1991]). In addition to determining the benefit to a student in 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).

        Upon the record before me, I concur with the hearing officer’s finding that petitioner had not demonstrated that the recommended BOCES class placement was the least restrictive environment in which the child could have been placed for the 2002-03 school year. There was ample testimony that the child had improved both academically and behaviorally during the 2001-02 school year. His special education teacher testified that his sight word vocabulary had increased from 31 words to 100 words in 2001-02 (Transcript p. 83). He was at a second grade level in math and was using a third grade text in science and social studies (Transcript p. 102). His teacher noted that he had improved in his ability to deal with transitions and could easily adjust to a change in schedule using a schedule chart (Transcript pp. 71, 142). She also conceded that his behavior had improved since taking medication and that he had made progress in social groups (Transcript pp. 139, 186).

        The child’s physical education teacher testified that respondent’s son could participate in activities to the same extent as the other students, and that the child could learn by watching and imitating the other students even in a large group of students (Transcript pp. 735-740). Moreover, he attributed an improvement in the child’s socialization to spending time with nondisabled peers (Transcript p. 747). As noted above, the child was to repeat the third grade curriculum during the 2002-03 school year, and the CSE had recommended that he be mainstreamed for two of his four academic subjects. Therefore, he was to have received primary special education instruction for only math and English. I am not persuaded by the record before me that the child’s instruction in these subjects could not be individualized and presented to him in a less restrictive setting such as an inclusion placement.

        Petitioner argues that the hearing officer’s decision directing it to place respondent’s son in an inclusion class improperly required its staff to create a non-existent class in which to place the child, implying that the district does not offer an inclusion class for third graders. Initially, I note that the hearing officer did not direct petitioner to place the child in a specific class. He left it to the CSE to determine a specific placement for the child. I must also note that the CSE chairperson testified that the district had third grade inclusion classes in two of petitioner’s elementary schools (Transcript p. 1249), and that one of petitioner’s third grade inclusion teachers also testified at the hearing (Transcript p. 1045). Under the circumstances, I cannot find, as petitioner urges, that the hearing officer exceeded his jurisdiction (Application of a Child with a Handicapping Condition, Appeal No. 90-17).

        I will direct the CSE to convene as soon as possible to review the child’s current performance levels, and to plan for placement in an inclusion program. The CSE should also consider a recommendation for a 1:1 aide, and should plan for an ongoing assessment of the use of the aide to determine whether the services of the aide can be faded during any portion of the day. The IEP should include specific information regarding the function of the aide, to assist the child with maintaining focus and to assist him in less structured settings when socialization may be a concern. In addition, it is essential that the CSE conduct an FBA of this child, if it has not already done so (8 NYCRR 200.4[d][3]; 34 C.F.R. §300.346 [a][2][I]; Application of a Child with a Disability, Appeal No. 02-032).

        The last issue to be considered is petitioner’s contention that the hearing officer exceeded his authority by retaining jurisdiction over any future disagreement regarding implementation of his decision. A hearing officer is appointed in response to a specific request for a hearing, and may not assume jurisdiction over all future disputes between the parties (Application of a Child with a Disability, Appeal No. 96-45). In this instance, however, the hearing officer retained jurisdiction with respect to any dispute involving the implementation of his decision. 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.

        I have considered petitioner’s remaining contentions and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer’s decision is hereby annulled to the extent that he purported to retain jurisdiction over all disputes arising from the implementation of his decision.