92-002

Petitioner appeals from the determination of an impartial hearing officer upholding the recommendation of respondent's committee on special education (CSE) that her child's educational program be changed from home instruction to a special class in respondent's Josh Lofton High School for the 1991-92 school year. Petitioner requests that her child continue to receive instruction at home. The appeal must be sustained in part.

Petitioner's child, who is presently 18 years old, entered kindergarten in September, 1978. The child repeated kindergarten during the next year. While in first grade during the 1980-81 school year, the child was referred to the CSE. The CSE recommended that the child not be classified as having a handicapping condition. In March, 1983, the CSE recommended that the child be classified as learning disabled, and that he enter a special education class in respondent's "Option 1" program. The child-teacher ratio in the Option 1 program is 12:1. The child remained in respondent's Option 1 program until April, 1991. In 1987, respondent began to provide small group counseling to the child, which it has continued to do. Although the child did not pass the Regents Preliminary Competency Tests in Reading and Writing administered in March, 1989, there is no evidence that the child received the remediation services required by State regulation (8 NYCRR 100.4 [f]). Unexplainably, the child continued in a local high school diploma program, until January, 1991 when petitioner and the CSE agreed that the child would pursue an IEP diploma.

The record reveals that the child repeated eighth grade during the 1988-89 school year. In September, 1989, the child entered the ninth grade at respondent's East High School. He failed to meet most of the goals set forth in his individualized education program (IEP) for the 1989-90 school year. For the 1990-91 school year, the record identifies the child's courses as ninth grade courses.

On October 10, 1990, the child was involved in an altercation with another child at the East High School, in the course of which petitioner's child allegedly brandished a club, and menaced a female teacher who attempted to intervene. The child was suspended from school, but the record does not reveal the length of such suspension. On October 17, 1990, a disciplinary hearing was held. By letter dated October 19, respondent's superintendent of schools advised petitioner that he concurred with the findings of the hearing officer that the child had brandished a club and thrown a bottle at another child, and had refused to accede to the attempts by teachers to end the October 10 altercation. The superintendent further advised petitioner that, in accordance with the recommendation of the CSE at a meeting held on October 17, 1991, the child would be returned to his Option 1 class. The CSE urged petitioner to obtain additional counseling for the child outside of school, but did not recommend that respondent provide individual counseling or increased group counseling.

The child's teacher testified at the hearing that the child's behavior improved upon his return to class after the October suspension, but that by February, 1991, the child became distracted in class, and verbally abusive to other children and his teachers. On February 7, 1991, the child's teacher referred the child to the CSE with the recommendation that he be reclassified as emotionally disturbed and placed in an Option 2 class of 12 children taught by a teacher with the assistance of an aide. In her referral, the teacher noted that the child did not remain on task after the first or second period of the school day, was distracted by other children and often refused to do his work.

On March 14, 1991, a school building team recommended to the CSE that the child's classification be changed to emotionally disturbed, but that he be assigned to an Option 1 class for emotionally disturbed children. The team also recommended that the child continue to receive group counseling once per week, and that he be evaluated audiologically on an annual basis. The latter recommendation was based upon the results of a February, 1991 audiological test, in which the child had demonstrated some loss of ability to hear high frequency sound in his left ear.

On April 3, 1991, the CSE recommended that the child be classified as emotionally disturbed, and that he be placed for the remainder of the 1990-91 school year and all of the 1991-92 school year in an Option 2 class for emotionally disturbed children. The CSE also recommended that the child receive group counseling once per week.

The CSE's recommendation was never implemented. On April 18, 1991, the child was involved in an altercation with another child, in which he allegedly struck the face of the other child with a yardstick. Petitioner's child also allegedly assaulted a teacher during the altercation. The record includes a protective order for the teacher, which was issued by the Rochester City Court. After the incident, petitioner's child was removed from school by the police. The child was suspended from school pending a disciplinary hearing, which was held on May 5, 1991. The record does not disclose the length of such suspension, although the hearing was not held until after a school vacation.

By letter to petitioner dated May 7, 1991, respondent's superintendent announced that he accepted the findings of the hearing officer in the disciplinary hearing that the child had assaulted a child and a teacher in the April 18 incident. The superintendent advised petitioner that, in accordance with a recommendation of the CSE made at its meeting of May 6, 1991, the child would receive instruction at home for the duration of the 1990-91 school year. The CSE also recommended that the child be enrolled in an Option 3 class of six children, a teacher and an aide, with a work-study program, and that he receive group counseling once per week, for the 1991-92 school year. The Option 3 class recommended by the CSE is located in respondent's Josh Lofton High School, an alternative high school of approximately 200 children.

On September 12, 1991, the CSE received petitioner's request for an impartial hearing. The hearing was held on October 25, 1991. In a decision dated November 19, 1991, the hearing officer found that the child should be classified as emotionally disturbed, and that he would benefit by enrollment in an Option 3 class for emotionally disturbed children, with a work-study program. The hearing officer further found that the recommended class would be appropriate because the other children in the recommended class had comparable academic, social and management needs. The hearing officer ordered that the child be provided with individual counseling once each week, although she did not specify whether such counseling would be in addition to, or in lieu of, the group counseling recommended by the CSE.

Petitioner does not contest the change in the child's classification to emotionally disturbed. Petitioner objects to the proposed Option 3 class at the Lofton High School, on the grounds that the child will not succeed in a class of children who have needs similar to his own, and that the CSE is in error in assuming that a work-study program in which the child could earn money would motivate the child to improve his academic performance. Petitioner asks that her child continue to receive instruction at home from a tutor, because she believes that he has made progress with the tutor.

Before considering the appropriateness of the program recommended by the CSE, I must examine the manner in which the hearing was conducted. In her opening statement, petitioner expressed her opposition to having the child attend the Josh Lofton High School, but said that she would be interested in having the child participate in a program which could provide him with some skills to enable him to obtain employment. Respondent's witnesses briefly described the work-study program at Josh Lofton High School. Petitioner asked if she could have additional time to consider the recommended program.

The hearing officer replied that it would not be possible to do so, " ... Because I hear it today and I make up my mind." Following an off-the-record discussion, the hearing officer stated on the record that petitioner would speak to an administrator of the Josh Lofton High School, to discuss the Option 3 program and work-study program recommended by the CSE, and that petitioner would meet with the hearing officer and respondent's attorney on November 8, 1991. The hearing officer further stated that if petitioner continued to disagree, the hearing officer would then write her decision after November 8, to which petitioner assented. The hearing officer next stated that the hearing would continue, thanked petitioner for coming, and told petitioner that she would see her on November 8.

There is only one brief comment in the transcript by petitioner about an exhibit which was introduced by respondent's attorney immediately after the hearing officer's farewell remarks to petitioner. Respondent's attorney presented the district's case through documentary evidence and the testimony of three witnesses. The attorney then made his closing argument. There is no reference to petitioner beyond page 20 of the transcript. It is apparent, and I so conclude, that she was not present for a substantial portion of the hearing.

The right to present evidence and cross-examine witnesses may be waived, but there must be clear evidence of a parent's waiver of that right. The record before me reveals no evidence of such a waiver. It does reveal that the hearing officer determined to proceed, despite petitioner's request for additional time to learn more about the recommendation. Although a hearing officer may decline to grant an adjournment, in order to prevent an intentional delay of proceedings, there is nothing in the record to afford a basis for concluding that petitioner's request was interposed for that purpose. I find that the hearing officer erred in not granting petitioner's request for additional time, and in proceeding to conduct the hearing in petitioner's absence.

Although the hearing officer's substantial procedural error alone affords a basis for invalidating the decision, I further find that respondent has not met its burden of establishing that the recommended program is the least restrictive environment for the child. The CSE has recommended a class for emotionally disturbed children with a child-teacher-aide ratio of 6:1:1 in a school other than that which the child had attended, upon the ground that the child's performance has not been satisfactory in a class for learning disabled children with a child-teacher ratio of 12:1. The child's teacher during the 1990-91 school year testified that the child was very quick verbally and one of the better students academically in her class. She further testified that it was clear to her at the beginning of the school year that the child's difficulties were primarily emotional, rather than academic. The Phase II IEP which the teacher prepared for the use of the child's teacher in the 1991-92 school year noted that the child had met academic goals in reading comprehension, science and a portion of social studies, but had not met goals in writing, participating in science projects and improving strategies of active listening and visual attending.

The child's teacher testified that it became difficult to keep the child focused after the first or second period of the school day, and that she had to devote a significant portion of her time to dealing with the child. The teacher described the child as easy to work with on a 1:1 basis, but distractible and impulsive in a group. I note that the school social worker who counseled the child during the 1990-91 school year also found that the child was responsive and displayed insight on a 1:1 basis, but showed attention-getting behavior when he was with other children. Although the teacher testified that the child was easily distracted in her class, much of the teacher's testimony related to the difficulties the child had in returning to class after lunch or in changing classes in the departmentalized Option 1 program. However, the child's need for greater supervision, in the halls is not, per se, an adequate basis for concluding that the child's educational needs must be addressed in a more restrictive Option 3 class. With regard to the child's behavior in class, I note that there was no adult to assist the teacher in keeping the child focused in the Option 1 class.

Although the record demonstrates that the child's management needs require more adult supervision than a class with a 12:1 child-teacher ratio affords, it does not follow that the child's educational needs require a class of six children taught by a teacher with the assistance of an aide. My review of the child's IEP for the recommended program reveals that are no goals which could not be achieved in a less restrictive setting such as an Option 2 class of 12 children, a teacher and an aide. Indeed, I note that the child's teacher had recommended such a class, in February, 1991 and the CSE had also recommended such a class at its April 3, 1991 meeting. The CSE's recommendation of an Option 3 class was premised upon the child's intensive management needs. However, the IEP which the CSE prepared for the child's enrollment in such class provides that the child would be mainstreamed for physical education and work-study. At the hearing, respondent's staff asserted that the pupil would attend school approximately every other day and that on the alternate days he would be out in the community on a work-study program. No explanation was given about the manner in which the child's management needs would be met in that program. Respondent has not offered a persuasive basis for the CSE's change in its recommendation to a more restrictive Option 3 class only one month after it had recommended an Option 2 class, and before the child had actually attended an Option 2 class. In the absence of any evidence that the child could not adequately function in an Option 2 class, with an effective behavior management plan incorporated into his IEP, respondent has not established that the recommended placement is in the least restrictive environment. In view of this finding with regard to the Option 3 class, I need not reach the issue of whether such a class should be provided at a particular high school.

The CSE's recommendation that the child be enrolled in a work-study program is not supported by any evidence of a vocational assessment of the child, which is required by State regulation (8 NYCRR 200.4 [b][3][vi]). In the absence of a vocational assessment, the CSE's recommendation of a work-study program cannot be sustained (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 52; Application of a Child with a Handicapping Condition, Appeal No. 90-21). I shall direct the CSE to perform an appropriate vocational assessment.

With respect to petitioner's request that her child be allowed to continue to receive instruction at home, I find that there is no basis in the record for such a restrictive placement. Federal regulation requires that each school district have a continuum of alternative placements to meet the needs of children with handicapping conditions, with such placements ranging from instruction in a regular education classroom to home and hospital instruction, i.e. by tutor (34 CFR 300.551 [b]). Home instruction is not a permissible option for a child who could benefit from instruction in school (Matter of a Handicapped Child, 22 Ed. Dept. Rep. 226). Although petitioner has not challenged the change of placement from instruction in school to home instruction in May, 1991, I must note that the CSE's recommendation of home instruction, in connection with the disciplinary hearing held on May 5, 1991, is not supported by any valid educational reason (cf. Honig v. Doe, 484 U.S. 305). It is essential that the child be promptly returned to an appropriate educational program.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer be, and hereby is, annulled; and that

IT IS FURTHER ORDERED that within 30 calendar days of this decision the CSE shall complete a vocational assessment of the child and any other evaluation the CSE finds to be appropriate, and shall recommend to respondent an appropriate program for the child for the remainder of the 1991-92 school year.