02-113

        Petitioner appeals from the decision of an impartial hearing officer, which upheld a recommendation by the respondent's Committee on Special Education (CSE) that his son be placed in a program within the District at the Wheatland-Chili Junior/Senior High School in a specialized 8:1:1 class with related services. The appeal must be dismissed.

        At the time of the hearing, petitioner's son was a 13-year-old eighth grader who was classified as emotionally disturbed. The student's cognitive functioning is well below his chronological grade level and he has exhibited numerous behavioral problems. Since his pre-school years, the student has been enrolled in various BOCES Programs. At the age of six, the child was evaluated by the Behavioral Pediatrics Program at Rochester General Hospital (The Center) due to his high level of activity, extreme impulsively and behavioral difficulties (Exhibits SD 21, 22, 23). Although the results of the child’s physical and neurological evaluations were normal (Exhibit SD 21), his academic testing revealed numerous deficits. His performance on the academic testing ranged from borderline to average. The student showed significant weaknesses in the areas of writing and reading, and in auditory and verbal short-term memory (Exhibit SD 23). The psychosocial evaluation noted significant difficulties with speech and language delays, impulsivity, hyperactivity, distractibility and oppositional behaviors. The mother reported that the child often did dangerous things, was easily frustrated and had difficulty getting along with others. The evaluation determined that the student met the criteria for Attention Deficit Hyperactivity Disorder (ADHD). The Center recommended that the child continue in his highly structured special education program and that counseling be provided to the parents to help them deal with their child's behavioral problems more effectively. The Center also recommended that the parents consider placing the child on medication to help control his behavior (Exhibit SD 22).

        The record reveals that the parents have placed the student at various times on different medications for ADHD but that the side effects were severe and the student was removed from the medications (Exhibit P1). In September 1996, the student was removed from the BOCES 12:1:1 class due to behavioral problems and was placed in an 8:1:1 class. However, the behavioral problems continued. The student became defiant, attempted to run away from school, refused to do his work and was generally non-compliant. Because there were no other appropriate classes, the student was assigned a one on one aide (Exhibit SD 14).

        In February 1998, a psychiatric evaluation was conducted. The student's behavior had worsened and the school reported having to use restraints in order to control him. He was diagnosed has having ADHD together with severe expressive and receptive language disorder and intermittent motors tics (Exhibit SD 17). The evaluation mentions that the child was noted to have bruises on his arm and that Child Protective Services became involved. The psychiatrist recommended that the student be placed on Clonodine to help control his impulsive behavior. He also recommended that the time to transport the student from home to school should be no longer than one hour. He further recommended that the student be placed either in a center based program or a day treatment program where staff are better equipped to handle his behavioral problems (Exhibit SD 17).

        In June 1998, the District began the student's triennial evaluation. The Wechsler Intelligence Scale for Children (WISC-III) was administered. The results show a child who is functioning intellectually in the mildly retarded range (Verbal IQ 60 Performance IQ 57 Full Scale IQ 55). The evaluator noted that due to the child's distractibility and impulsivity, the student’s scores are most likely an underestimate of his abilities. The student’s lowest scores were in the area of social judgment (Exhibit SD 16). A Behavior Assessment System for Children-Teacher Report Scales-Child (BASC-TRS-C) was also administered. Clinically significant behaviors such as anxiety, aggression, depression, poor attention and conduct problems were noted. The school psychologist described the home environment as chaotic with "much physical and verbal fighting among family members, as well as hard discipline" (Exhibit SD 16). He recommended that the student continue to be classified as emotionally disturbed and that he be placed in a small center based classroom with one-on-one assistance.

        In September 1998, the student entered a BOCES II center-based program at West Ridge School and had begun to develop a productive relationship with the school counselor (Exhibit P1 SD 15). At some point in time during the year 2000, the student had been transferred to the BOCES High Management Program at Gates Chili Middle School. In 2001, he was transferred to BOCES I Creekside/Hillside Day Treatment Program because of behavioral problems (Exhibits SD 19 and P 3). A functional behavioral assessment was conducted and a behavioral intervention plan was instituted (Exhibits P 4 and SD 10). During the summer of 2001, the Wheatland Chili School District (hereinafter, District) developed an individualized education program (IEP) for the summer 2001 and the 2001-2002 school year. The student was placed at the BOCES I Creekside/ Hillside in a 12:1:1 day treatment program with related services of speech therapy, counseling and family counseling.

        A social work update dated April 2002 (Exhibit SD 7) indicates that the student had made a reasonably smooth transition to the program. However, the Student Progress Report (Exhibit P8) dated April 23, 2002, gives a different picture. The progress report stated that the student refuses to do his work, tries to run away and has had to be restrained. The Speech/ Language Progress Report dated June 2002 indicated that the student has recently refused to come to speech therapy because the student objects to having to leave his classroom. (Exhibit D6).

        On June 10, 2003 the District's CSE met and recommended that the student continue to be classified as emotionally disturbed. The District adopted wholesale the all of the goals and objectives of the IEP that had been formulated by BOCES one month earlier (Exhibit SD 5 and Transcript pp. 132-135). The District recommended that the student be placed in-district in an 8:1:1 special class with the related services of speech, counseling, and family counseling. The Director of Pupil Services explained to Petitioner, at the CSE, that the class they were recommending had been in place for one year and contained only four other students. The program contained an on-sight crisis counselor with a behavioral support room that was located right next to the proposed classroom. The behavioral support room would give the student a safe place to go in order to get control of his emotions before rejoining his class. Although the class is designated 8:1:1, it actually has only four students in it and three staff members. Petitioner disagreed with the decision of the CSE and asked for an impartial hearing.

        On October 4, 2000, an impartial hearing was held in order to determine the appropriateness of the District's recommended program and whether the student's current placement at the BOCES Day Treatment Program should continue. The hearing officer found that the evidence presented is sufficient to support the school district's position that they have offered the child a free and appropriate public education, that is calculated to allow the student to receive educational benefits. The hearing officer then weighed the harmful effect of multiple placement changes on this emotionally disturbed child, against the benefits of the program offered by the District. He determined that the benefits of the program outweigh the difficulties the child will experience in adjusting to a new placement. He determined that the program offered by the District is reasonably calculated to provide both educational and emotional benefits in the least restrictive environment.

        Petitioner appeals from the impartial hearing officer's decision. Petitioner states the District has sent his son to five different regular schools with special programs. That each of these schools had teachers and personnel that were qualified, but that his son has had serious problems in each of these schools resulting in suspensions. He believes that one and a half years ago, the District finally referred his son to a school that works (Creekside/Hillside Day Treatment Program) and that the child should remain there because he has lost so many years of education (Appeal pp.1-3).

        The appropriateness of the student's classification is not challenged, and is therefore not reviewed in this appeal (Hiller v. Brunswick CSD, 674 F. Supp. 73 [N.D. N.Y., 1987]).

        The issue presented is whether the educational program under review and challenged by the petitioner is one that is "reasonably calculated to enable (the student) to receive educational benefits" (Rowley, 458 U.S. at 206-07; Walczak, 142 F.3d at 129; Pascoe v. Washingtonville Central School Dist., No. 96-4926 [S.D.N.Y. September 29, 1998] [1998 WL 684583]; the Individuals with Disabilities Education Act (IDEA) ensures that "all children with disabilities have available to them a free appropriate public education [FAPE]" (20 U.S.C. § 1400 [d][1][A]). This does not create a duty to maximize the child’s academic potential (Hendrick Hudson Dist. Bd. of Educ. v Rowley, 458 U.S. 176, 198 [1982]; Walczak v Florida Union Free Sch. Dist., 142 F.3d 119, 132 [2nd Cir. 1998]; Tucker v Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2nd Cir. 1989]). An appropriate education for a student with a disability is one in which IEP goals are reasonably calculated to enable the child to receive meaningful educational benefits (Rowley, 458 U.S. at 192; Walczak, 142 F.3d 119), and the recommended program is 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] and 8 NYCRR 200.1[cc]). There is a strong preference for mainstreaming or inclusion of the child in regular education classrooms whenever possible (Rowley, 458 U.S. at 202; Walczak, 142 F.3d 119; Oberti v Bd. of Educ. of the Borough of Clementon Sch. Dist., 995 F.2d 1204 [3rd Cir. 1993]; Application of a Child with a Disability, Appeal No. 94-21; Application of a Child with a Disability, Appeal No. 94-18).

        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 (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 Suspected of Having a Disability, Appeal No. 93-9). 

        The IEP developed by the school district adopts wholesale the goals and objectives included in the IEP that was developed by BOCES just one month earlier (Exhibit SD 5). By their testimony, the district staff has demonstrated an understanding of the needs of the student both academically and emotionally. They are cognizant of the challenges this child will face (Transcript pp. 45, 63, 70, 86). The school district will continue to provide the student with speech/language therapy, counseling and the family counseling. They also have taken into consideration the parent's concerns (Transcript p. 121). The Director of Personnel Services spoke about the student's anxiety and fear of harm and has described how this student’s needs would be met in the District's program (Transcript pp. 38-52, 85, 97-104, 110-115 and 202-204). Additionally, the Director of the Program believes that the program recommended by the District is a less aggressive environment and would therefore be less likely to trigger the student's anxiety (Transcript p. 129). The teacher of the District's special education class describes the students in his class as being supportive and protective of one another (Transcript p. 63). The District has also acknowledged the need to help the student adjust to the new placement in order to make the change as smooth as possible (Transcript p. 92). The District will be providing weekly counseling to the student as well as counseling for the family to help in the transition and enhance effective communication in order to ensure success (Transcript p. 95).

        Additionally, I note that even the Assistant Principal of the BOCES program recognizes that the program offered by the District is similar to the one offered by BOCES. She believes the program, as described, is capable of providing the student with the type of program and support he needs (Transcript p. 82). Furthermore, she does not believe that the student has been as successful in his present program as they had initially hoped.

        Additionally, I note that although the program recommended by the District is listed as having an 8:1:1 ratio, at the present time, the class only has four students and three staff members. The student will fit in well with the class profile (Exhibit SD 27) even though his skills are slightly below the skills of the other student. This small student to staff ratio will allow the teacher to tailor the program to the individual student and can help him make up for lost time (Transcript p.139). The special education teacher who is assigned to teach the class is expected to exert a calming influence on the student. The program also has a crisis counselor who is always on-call. The crisis counselor is trained in Therapeutic Crisis Intervention (TCI) and Life Space Crisis Intervention (LSCI), which are techniques in de-escalating explosive situations (Transcript pp. 97-99). The crisis counselor operates out of a behavioral support room that is a place for a child to go when he is having trouble settling down (Transcript pp 96-102, 130). The behavioral support room is located right next to the student's classroom. The teacher and the crisis counselor work together as a team to prevent things from getting out of hand (Transcript pp. 102-104).

        Students with disabilities must be educated in the least restrictive environment (20 U.S.C. §1412[a][5]). The IDEA mandates that all students with disabilities be educated with non-disabled children to the maximum extent possible and as close to home as possible 8 NYCRR Section 200.1. There is no question that this student needs a special education class to address his educational and emotional needs. The only question is whether the program shall be provided by the District or by BOCES. The program recommended by the District is closer to home and the District has offered assurances that there are a number of busing options available to ensure the quick, safe and efficient transportation of the student from home to school and back. All the buses are equipped with video monitors for the additional safety of the students (Transcript pp. 194-195). The crisis counselor meets the students as they get off the bus, in order to identify problems early and intervene, if appropriate. The program is located in a regular school and would allow the student to interact on a daily basis with regular education peers. Additionally, the student will have opportunity for more mainstreaming possibilities as his behavior and accomplishments warrant.

        I find that the Board of Education has met the burden of showing that its recommended program is reasonably calculated to confer educational benefits upon the student.

THE APPEAL IS DISMISSED.