03-027

       Petitioners appeal from an impartial hearing officer’s decision upholding a recommendation by respondent’s Committee on Special Education (CSE) that petitioners’ son be placed in a self-contained special education class with a 12:1 student to teacher ratio. The appeal must be sustained in part.

        At the time of the hearing, petitioners’ son was six years old and classified by the CSE as speech impaired. His classification is not in dispute in this appeal. For kindergarten during the 2001-02 school year, the CSE recommended that the student attend a general education collaborative team teaching class with a 12:1 student to teacher ratio and speech-language therapy three times per week in a group of three (Exhibit F). Instead, respondent placed the student in a general education class with twenty-five students because the recommended program was not available (Exhibit E). Although the school he attended was capable of providing special education teacher support services (SETSS), respondent did not offer these services to the student until May 2002 (Transcript p. 265; Exhibits B, 3, 4). However, the student did receive speech-language therapy.

        In February 2002, the CSE decided that the student required a small class to address his academic and language delays, and it recommended placement in a special education class with a 12:1 student to teacher ratio (Exhibit 4). The CSE also recommended continuation of the student’s speech-language therapy. Petitioners objected to the placement recommendation because they wanted their son to remain in a regular education class. In April 2002, they requested an impartial hearing.

        In April 2002, an independent evaluator administered the Stanford-Binet Intelligence Scale--Fourth Edition, which yielded standard (and percentile) scores of 73 (5) for verbal comprehension and 68 (3) for nonverbal reasoning, for a test composite standard age score of 69 (3), which is in the slow learner range of cognitive functioning. On the Woodcock-Johnson Tests of Academic Achievement--Third Edition, the student achieved standard (and percentile) scores of 114 (82) for basic reading, 93 (33) for listening comprehension, 92 (29) for oral expression, 101 (52) for understanding directions, 98 (47) for story recall, 90 (26) for picture vocabulary, 114 (83) for word attack, 110 (83) for letter-word identification, 90 (26) for passage comprehension, 87 (19) for spelling, 89 (22) for math applied problems and 87 (18) for academic knowledge. The examiner, however, indicated that the results were not an accurate estimate of the student’s current level of intellectual functioning because of his distractibility and anxiety. The evaluator recommended a speech/hearing/language evaluation to rule out receptive expressive language disorder, speech therapy, occupational therapy, a medical evaluation to rule out organic reasons for behaviors if they increase, a behavior modification program at home to address task completion and psychotherapy to address the student's anxiety (Exhibit D).

        The hearing commenced on June 19, 2002, continued on October 3, November 8 and December 2, and concluded on December 27, 2002. In a decision dated February 25, 2003, the impartial hearing officer (IHO) found that the district had demonstrated that the student’s severe academic deficits could not be addressed in a regular education classroom with special educational support services. The IHO found that the student required a 12:1 student to teacher ratio at the minimum and remanded the matter to respondent’s CSE to determine whether the student also required the assignment of an individual paraprofessional. The IHO also ordered respondent to reimburse petitioners for the cost of the student’s private tutoring during the 2002-03 school year, to provide the student with additional occupational and physical therapy, and to provide individual speech therapy in addition to group therapy.

          Respondent has not answered the petition herein. Nonetheless, I am required to examine the entire record (34 C.F.R. § 300.510[b][2][i]) and to make an independent decision (20 U.S.C. § 1415[g]) based solely on the record (8 NYCRR 279.3), notwithstanding respondent's failure to answer (Arlington Cent. Sch. Dist. v. State Review Officer, 293 A.D.2d 671 [2d Dept 2002]).

        A board of education 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 (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 individualized education program (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).

        Petitioners contend that the CSE failed to adequately evaluate their son. It is undisputed that the only medical evidence in the record is an immunization record (Transcript p. 255, Exhibit 13). While some of the student’s cognitive testing was reportedly inaccurate due to his inability to cooperate, it is unclear why he achieved several above average achievement test scores given his overall presentation as academically and socially delayed in the classroom. I have reviewed the evaluative information regarding petitioners' son, and I find that such information was not adequate to support the CSE's recommendation (See Application of a Child with a Disability, Appeal No. 01-035; Application of a Child with a Disability, Appeal No. 00-033). In particular, the existing evaluative information did not assess all relevant areas, was not sufficiently comprehensive to identify all of the student's special education needs, and was insufficient to ascertain the physical, mental, behavioral, and emotional factors contributing to the student's disability. The CSE needed additional information regarding the nature and extent of the student's disability to identify and assess his special education needs and to develop an appropriate IEP to meet those needs 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 may occur 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 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 IEPwithin 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, e.g., 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 of 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).

        Petitioners assert that a self-contained special education class is not the least restrictive environment for their son, and they contend that he deserves an opportunity to succeed in general education with the supplementary aids and services that he requires. When the CSE made its recommendation, respondent had not yet provided the student with SETSS, physical therapy or occupational therapy. Although respondent provided SETSS to the student twice per week in fall 2002, petitioners contend that he required two sessions per day. The student did receive group speech-language services, but the IHO ordered respondent to also provide individual speech-language therapy. The IHO further ordered respondent to provide the student with an increased level of occupational and physical therapy to compensate for its delay in initiating these services.

        Because further evaluations must be conducted before determining an appropriate placement recommendation, I will annul the hearing officer's decision to the extent that it upheld the CSE placement of the student in a special education class and remand this matter to respondent's CSE. When it reconvenes pursuant to this decision, the CSE should consider additional supports for the student’s current placement pending completion of its comprehensive evaluation. When the assessments are complete, the CSE should convene again to review the results of these evaluations and determine which option within its continuum of services would provide the necessary support within the least restrictive environment.

        In light of my remand of this matter to the CSE, I need not consider the other issues raised in this appeal.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the portion of the hearing officer’s decision upholding the CSE’s recommendation to place the student in a 12:1 special education class is hereby annulled; and

IT IS FURTHER ORDERED, unless the parties otherwise agree, that this matter is remanded to respondent's CSE to conduct a comprehensive evaluation of the student and consider additional supports for the student’s current placement pending completion of that evaluation. Such evaluation shall include a complete neuropsychological and medical examination; and

IT IS FURTHER ORDERED that respondent's CSE reconvene promptly to amend the student’s IEP to provide individual speech-language therapy and to augment the student’s occupational and physical therapy in accordance with the hearing officer’s decision; and

IT IS FURTHER ORDERED that respondent shall reimburse petitioners for the cost of tutoring services obtained for the student during the 2002-2003 school year upon petitioners’ submission of proof of payment in accordance with the hearing officer’s decision.