04-002

           Petitioners appeal from the decision of an impartial hearing officer which upheld the recommendation of respondent's Committee on Special Education (CSE) that petitioners' son be placed in an inclusion model special class for kindergarten for the 2003-04 school year.  The appeal must be dismissed.

            Preliminarily, I will address the procedural issues raised in this appeal.  Respondent argues that the petition is defective because it is not verified as required by 8 NYCRR 279.7, and therefore should be dismissed.  I note that petitioners have filed a verification with the Office of State Review.  Although petitioners should have served respondent with a verified copy of their petition, their failure to do so does not afford a basis for dismissing the appeal (Application of a Child with a Disability, Appeal No. 94-14; Application of a Child Suspected of Having a Disability, Appeal No. 94-3).

            Respondent also objects to petitioners' reply to its answer.  It claims that the reply does not address the procedural defenses raised in the answer.  Pursuant to 8 NYCRR 279.6, a reply is permitted only when the respondent has raised procedural defenses or submitted additional documentary evidence with its answer.  A reply cannot be used to generally respond to each of the allegations made in the answer, as petitioners have attempted to do (Application of a Child with a Disability, Appeal No. 95-28). Consequently, I do not consider those allegations raised by petitioners in their reply to respondent's answer which do not respond to procedural defenses.  Nor will I accept the additional evidence submitted with petitioners' reply as it does not respond to respondent's procedural defenses.

            Petitioners' son was five years old when the hearing began in October 2003.  He is classified as other health impaired and his classification is not in dispute.  Despite his average cognitive ability, the child demonstrates weaknesses in the areas of social development, adaptive skills, gross and fine motor skills and receptive and expressive communication skills (Exhibit 13).  He also exhibits oppositional behavior and difficulties with transitions at school.  In June 2003, the child was diagnosed as having Asperger's syndrome characterized by difficulties with socialization and pragmatic communication, and he displays preservative interests (Exhibits 15, E).  He also was diagnosed as having an articulation disorder and verbal dyspraxia, a neurologically based motor planning disorder (October 31, 2003 Transcript p. 299).  As the length and phonetic complexity of words increase, the child experiences difficulty planning and coordinating the muscles used for intelligible speech production (November 3, 2003 Transcript p. 29).  Additionally, the child shows symptoms of inattention, distractibility, impulsivity and anxiety (Exhibit 15).

            When the child was approximately three years old, he was referred to respondent's Committee on Preschool Special Education (CPSE) by his parents because of their concerns regarding his speech intelligibility (Exhibit 10).  After conducting an evaluation, the CPSE met in October 2001 and classified the child as a preschool child with a disability (Exhibit O).  The CPSE recommended that for the 2001-02 school year, the child be placed in a 12:1+1 special class at the district's Connetquot Alternative Preschool and that he receive individual speech-language therapy three times per week for 30 minutes.  For the 2002-03 school year, apart from increasing speech-language services, the CPSE continued to recommend essentially the same program for the child that it had recommended for the 2001-02 school year (Exhibit 8).  It also recommended that the child receive extended school year services.

            In April 2003, respondent's CPSE met to recommend services for the child for July and August 2003 (Exhibit 9).  It recommended that the child continue to attend the Connetquot Alternative Preschool with related services of speech-language and occupational therapy.  Respondent's CSE also met at the same time to recommend a program for the child for the 2003-04 school year commencing September 2003 as the child would be turning five years old and transitioning to its jurisdiction (Exhibits C, D).  The CSE recommended that the child be classified as speech impaired and placed in an inclusion model special class at its Sycamore Avenue School with related services of speech-language and occupational therapy.  The CSE approved a physical therapy evaluation and agreed to reconvene after the evaluation was completed (October 10, 2003 Transcript p. 108).  The individualized education program (IEP) developed at the meeting provided for a ratio of 12:1+2 for the special class.  It also provided that the child would benefit from inclusion and that he would participate in regular education classes for music, art, physical education and lunch/recess.

            The CSE reconvened in May 2003 to review the results of the physical therapy evaluation (Exhibit 6).  The CSE continued to recommend the same program that it had recommended for the child at its April 2003 meeting, and based upon the results of the physical therapy evaluation added physical therapy services to the child's IEP.  By letter dated July 29, 2003, respondent's director of special education advised petitioners of the recommendations proposed at the May 2003 meeting and indicated that it was based upon test results and reports summarized in an enclosed committee report generated at the meeting (Exhibit 7).  The letter also reflected that due process rights, least restrictive environment (LRE) options and the child's IEP were enclosed.

            At the request of the parents, the CSE met again on August 26, 2003 (Exhibit 4).  It changed the child's classification to other health impaired based upon his June 2003 Asperger's diagnosis.  His IEP was revised to increase speech services and to add psychological consultation services and parent training.  In a letter dated August 26, 2003, the same day of the CSE meeting, the parents requested an impartial hearing claiming that the school district failed to place their son in a 12:1+2 special class and that he was inappropriately being educated in a classroom with approximately 24 students.  By letter dated August 27, 2003, respondent's director of special education advised petitioners of the proposed recommendation indicating that the recommendation was based upon test results and reports summarized in an enclosed committee report generated at the meeting (Exhibit 5).  The letter also reflected that due process rights, LRE options and the child's IEP were enclosed.

            The impartial hearing began on October 10, 2003, and after six hearing sessions concluded on November 10, 2003.  The hearing officer rendered his decision on November 28, 2003.  He found that the school district met its burden of demonstrating the appropriateness of the program recommended for the child for the 2003-04 school year.

            Petitioners appeal from the hearing officer's decision challenging many of his findings and conclusions of law, as well as his statement of the issues.  In their petition, they assert that they presented two issues at the hearing.  First, they argue that respondent failed to provide them due process which would have enabled them to challenge their son's placement in a more timely fashion.  Second, they claim that respondent failed to provide sufficient notice and information regarding its recommended change in their son's placement.  They request that I remand the matter to the CSE and order that it place their son in a self-contained special education class with no more than 12 students.

            I must note, however, that at the hearing, while the parents' attorney made reference to respondent's failure to provide certain notices, she consistently maintained the issue presented was whether petitioners fully understand the program that was recommended for their son by the CSE (October 10, 2003 Transcript pp. 15-16, 62, 71-72; October 31, 2003 Transcript pp. 265-68).  Petitioners assert that they would not have agreed to a placement in a group larger than 12 students.  Therefore, based upon the parents' explanation of the issues at the hearing and their request for relief, it is my determination that petitioners have challenged the inclusion component of the recommended program.

            A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Bd. of Educ., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  In order to meet its burden, a board of education must show (a) that it complied with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA) and (b) that the IEP that its CSE developed for the child through the IDEA's procedures is reasonably calculated to confer educational benefits to the student (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]; M.S., 231 F.3d at 102; Application of a Child with a Disability, Appeal No. 02-025).  The recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5]; 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. 02-059; Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  Petitioners have not challenged their son's IEP in terms of its description of his needs.  I have nevertheless reviewed the IEP, and I find it accurately reflects the results of the child's evaluations.  I also have reviewed the annual goals and objectives because it is important to establish that they are appropriate before determining which special education services are required in order to afford the child a reasonable chance of achieving his goals and objectives.  I find that the goals and objectives are consistent with the child's level of functioning and are related to his special education needs.

            As noted above, the child is functioning within the average range of cognitive ability; however, he exhibits some learning difficulties and weaknesses in receptive and expressive language (November 3, 2003 Transcript pp. 41-43).  He has been diagnosed as having Asperger's syndrome, demonstrating difficulties with socialization and pragmatic communication.  He also has verbal dyspraxia.  Additionally, the child can be impulsive and has attention and focusing difficulties, but can be redirected and responds to verbal cues and prompting (November 3, 2003 Transcript pp. 41-43).  In general, the parties agree that the child requires a small, supportive environment to address these special education needs.

            The CSE recommended that the child be placed in an inclusion model special class at its Sycamore Avenue School, the school closest to the child's home (October 31, 2003 Transcript p. 352).  The child's IEP provides that he will receive math, science, language arts, reading and social studies in a special education setting while participating in regular education classes for music, art, physical education and lunch/recess.

            Respondent's director of special education, who also is the principal of the preschool the child attended, described the inclusion model kindergarten class in which the child was placed (October 31, 2003 Transcript p. 342).  He indicated that the special education classroom is located beside the regular education classroom and the two rooms are connected by a door.  He testified that for the current school year there are six special education students in the special education class with one special education teacher and two paraprofessionals.  The regular education class has approximately 17 students with one regular education teacher.

            The CSE chairperson testified that when the special education and regular education classes are combined, there are, at a minimum, four adults in the inclusion setting including the regular education teacher, the special education teacher and the two paraprofessionals (October 29, 2003 Transcript pp. 198-99).  He further testified that the inclusion model offers the flexibility of allowing for the movement of the child to the special education classroom if he required services in addition to those which the inclusion environment offered.

            The current teacher of the special education class testified that she provides instruction to the six special education students in academic subjects and that they join the regular education students for calendar time, snack time, specials, lunch and some guided or shared reading (October 29, 2003 Transcript pp. 150, 174).  She further testified that small group instruction is provided for language arts, reading and math (October 29, 2003 Transcript pp. 160-61).

            The child's preschool teacher for the 2002-03 school year testified that the child showed progress in her class and was ready for the next challenge of working and socializing with regular education students (November 3, 2003 Transcript pp. 41, 45-46, 50).  She indicated that a regular education teacher and special education teacher would be in the inclusion setting at all times and that the special education teacher would address the child's academic and other needs in the special education classroom (November 3, 2003 Transcript pp. 46, 50).

            The speech-language therapist who provided services to the child from September 2002 through June 2003 testified that the child benefited from positive peer role models (November 3, 2003 Transcript p. 35).  She indicated that exposure to regular education students would enable the child to hear correct sounds and correct rates of speech for expressive language development, and to develop social skills, play skills and social pragmatic language skills (November 3, 2003 p. 37).  The speech-language therapist also testified that the child's dyspraxia could be addressed in an inclusion setting as she had addressed the child's needs within the classroom the previous year, and in the inclusion setting, speech-language services could be provided either in the classroom or on a pull-out basis (November 3, 2003 Transcript p. 36).

            As noted above, the preschool teacher and the speech-language therapist, both of whom worked directly with the child during the 2002-03 school year, testified that the inclusion model special class was appropriate for the child (November 3, 2003 pp. 35, 45).  In addition, the other professionals from the school district, including the school psychologist who evaluated the child, opined that an inclusion model was appropriate for the child because it offered the expertise and support of the special education setting within a regular education classroom in addition to providing the child the opportunity to interact with physically developing peers and appropriate social role models (October 29, 2003 Transcript pp. 207, 247; October 31, 2003 Transcript pp. 284-5, 366).

            Based upon the information before me, I find that respondent has demonstrated that the program it recommended for the child for the 2003-04 school year met the child's special education needs in the LRE.  The inclusion model special education class provides small group instruction for academic subjects while offering the opportunity for interaction with regular education students for modeling language and behavior in a flexible environment.  I note the IDEA's strong preference that, to the maximum extent appropriate, children with disabilities be educated in regular classes with their nondisabled peers with appropriate supplementary aids and services (34 C.F.R. § 300.550; 34 C.F.R. Part 300, Appendix A, Part I).

            I am not persuaded by petitioners' claims that they were not provided proper notice.  Respondent's director of special education testified that parents are provided with a notice of their due process rights when CSE meetings are scheduled (October 31, 2003 Transcript p. 365).  The child's mother testified that she received such notice (November 5, 2003 Transcript pp. 169-70).  In fact, petitioners exercised their due process rights by requesting an impartial hearing on the same day that they attended the August 2003 CSE meeting.

            With respect to petitioners' claim that they were not provided information regarding the change in their son's placement from a 12:1+2 special class to an inclusion model, the record includes form letters sent to petitioners after the May and August CSE meetings advising petitioners of the proposed recommendations and indicating that the recommendations were based upon test results and reports summarized in enclosed reports generated at the meetings (Exhibits 5, 7).  Additionally, the record is replete with references demonstrating the numerous conversations the child's mother had with various district personnel about the inclusion model (October 10, 2003 Transcript p. 113; October 29, 2003 Transcript p. 242; October 31, 2003 Transcript p. 353; November 3, 2003 Transcript pp. 31, 44-46, 55).  Moreover, the child's mother attended a workshop in February 2003 which covered several topics including the kindergarten curriculum and inclusion model (November 5, 2003 Transcript p. 147).  She met with school personnel in March 2003 to review the testing information and the information that was going to be presented at the April 2003 CSE meeting (October 10, 2003 Transcript pp. 111-12).  She also observed the inclusion model in May 2003 for approximately 45 minutes (November 5, 2003 Transcript p. 141), contacted the district's superintendent to request a change in her son's placement (October 31, 2003 Transcript p. 361; November 5, 2003 Transcript pp. 143, 171), and met with the CPSE chairperson and an advocate in June 2003 to discuss the inclusion model (October 10, 2003 Transcript pp. 118-19; November 5, 2003 Transcript pp. 162-63).  The record before me clearly demonstrates that the child's mother was an active participant in the process and that she was provided timely notice of her due process rights.

            I have considered petitioners' remaining claims which I find to be without merit.

THE APPEAL IS DISMISSED.