98-012

       Petitioners appeal from the decision of an impartial hearing officer which upheld a recommendation by respondent's committee on special education (CSE) to place petitioners' son in a self-contained special education class for the 1996-97 school year. The appeal must be dismissed.

        Petitioners' son, who is eleven years old, has been classified as other health impaired. He was reportedly diagnosed as having an attention deficit hyperactivity disorder (ADHD) and mild developmental delays in 1992. When evaluated by a private psychologist in May, 1996, the child achieved a verbal IQ score of 65, a performance IQ score of 77, and a full scale IQ score of 69, which was between deficient and borderline intellectual ability (Exhibit A). The child, who was then in the second grade, achieved standard scores (and grade equivalent) of 72 (lst grade) for reading, 76 (lst grade) for spelling, and 50 (kindergarten) for mathematics. The psychologist noted that the child's scores were consistent with those he had achieved during prior testing. He reported that the boy did not evidence signs of ADHD during the evaluation, which he attributed to the Ritalin the child was taking to address that condition. The child's classification is not disputed in this proceeding, and I make no determination of its appropriateness (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D. N.Y., 1987]).

        The child and his twin sister were reportedly abused while living in a foster care home. In October, 1992, they were placed with petitioners, who adopted them in December, 1995. Prior to being placed with petitioners, the boy reportedly attended the Brooklyn School for Special Children. Upon entry into respondent's schools in the fall of 1992, the child was apparently placed in a special education class in respondent's Howell Road School (Transcript, page 733). The child's mother testified that the child had problems in that placement, and was withdrawn by petitioners after appropriately five weeks in the class.

        In January, 1993, petitioners enrolled the boy in the preschool program of the Holy Name of Mary School. The child remained in that school for kindergarten during the 1993-94 school year. In May, 1994, he reportedly achieved grade equivalent scores of K.0 for applied problems, K.0 for mathematical calculations, K.2 for dictation (spelling), K.0 for letter-word identification, K.0 for passage comprehension, and K.8 for writing samples on the Woodcock Johnson Psycho-Educational Battery (Exhibit 7). During the 1994-95 school year, the child was enrolled in a regular education first grade class in respondent's Wheeler Avenue School, where he received resource room services and speech/language therapy. The record does not reveal what kind of progress he made during that school year.

        The child was enrolled in a regular education second grade class at the Wheeler Avenue School for the 1995-96 school year. He received resource room services for five periods per week, and small group speech/language therapy three times per week. The boy was also privately tutored by his aunt during the time he was in the second grade. At the hearing in this proceeding, the child's second grade teacher testified that she modified the curriculum for petitioners' son by reducing the amount of his homework and her writing requirements for him while in class. She also testified that as the school work got harder during the school year, the child would withdraw and become frustrated. The teacher explained that the boy would get up from his desk and walk around the classroom, which was distracting for the other students (Transcript, pages 1034-1035). Academically, the child showed very little improvement in his language arts skills. His teacher testified that the child was working on reading readiness skills, i.e., recognizing the letters of the alphabet and their sounds, which she described as prekindergarten skills. The teacher further testified that the child had difficulty completing any class work which she gave to him. She attributed this to his difficulty remaining focused. The teacher also testified that when petitioners' son was unable to do school work, he was aware that other children in the classroom were watching him, and that he became defensive about it. She testified that other children were not eager to have him be part of their group when the class was broken into groups. Her testimony was supported by her written comments on the child's report card (Exhibit 6).

        In April, 1996, the child's resource room teacher administered part of the Woodcock Johnson Psycho-Education Battery – Revised. She reported that the boy achieved grade equivalent scores of 1.5 for letter-word identification, 1.5 for passage comprehension, 1.3 for calculation, 1.5 for applied problems, 1.4 for dictation, 1.5 for writing samples, 3.1 for science, 1.4 for social studies, and 2.8 for the humanities. In late April, 1996, the building-level child study team advised the child's mother that the boy had become very frustrated in school. However, she testified at the hearing that she believed that he was learning a great deal in school, and should advance to a regular education third grade class for the 1996-97 school year.

        On May 1, 1996, the CSE met to review the child's progress and to plan his educational program for the 1996-97 school year. According to the child's mother, it was suggested to her at the meeting that her son would do better if he were enrolled in a special education class. She objected to the suggestion, and ultimately walked out of the meeting. Petitioners then arranged to have their son privately evaluated by Dr. Stephen Kaplan, a licensed psychologist. As noted above, Dr. Kaplan tested the child's cognitive skills and reported that his full scale IQ score was on the border between deficient and borderline, and that his score was consistent with the results of prior testing. He described the boy as a sweet-natured and happy child who cooperated with him, and exhibited a satisfactory attention span. The boy worked for half-hour periods before showing discomfort and reportedly displayed little distractibility. Dr. Kaplan, who did not formally test the child's personality, reported that there was no evidence of depression or impaired self-image.

        At petitioners' request, the CSE reconvened on June 6, 1996. The CSE discussed petitioners' request that an aide be assigned to work with the boy in a regular education third grade class, but it recommended that the child be placed in a self-contained special education class with a 12:1+1 student to adult ratio in respondent's Willow Road School. It also recommended that the child receive speech/language therapy in a group of no more than five, three times per week. I note that the child's individualized education program (IEP) for the 1996-97 school year (Exhibit B) was not printed until November 26, 1996, and was not mailed to petitioners until December 2, 1996 (Exhibit C). The IEP provided that the child could take his tests in a separate location, with extended time limits. It included annual goals for reading, writing, social studies, mathematics and science. Although the CSE had not recommended that the child receive resource room services, his IEP indicated that a resource room teacher would be responsible for implementing those goals. The IEP also included annual goals for improving the child's expressive and receptive language skills.

        Petitioners did not agree with the CSE's recommendation, and requested mediation of their dispute with the CSE (see Section 4404-a of the Education Law). On July 24, 1996, the parties agreed that the child would be enrolled in a regular education third grade class, and would receive 45 minutes of resource room services per day. They further agreed that a student teacher, i.e., a teacher in training, would be made available to the child. Pursuant to the mediation agreement (Exhibit D), petitioners were to meet on a biweekly basis with respondent's Director of Curriculum and Special Education and the staff assigned to the child to discuss the child's adaptive curriculum. The agreement also provided that the child study team would meet three months after the child's program had been implemented. The record indicates that the agreed upon meetings were held, and that a student teacher worked with the child from September, 1996 to November, 1996.

        On November 25 and 26, 1996, the child's resource room teacher administered Part II of the Woodcock-Johnson Psycho-Educational Battery – Revised to him (Exhibit G). The child achieved grade equivalent scores of 1.8 for letter-word identification, 1.6 for passage comprehension, 1.2 for mathematical calculation, 1.4 for applied problems, 1.7 for dictation, 2.4 for writing samples, 3.1 for science, 3.7 for social studies, and 2.8 for humanities. At the hearing in this proceeding, the resource room teacher testified that the child's written responses could not have been read and scored without his oral explanation of what he had written, and that she could not establish a basal for the calculation portion of the test because the child did not correctly answer the required minimum of six test questions.

        In a brief written report dated December 19, 1996, the child's speech/language therapist indicated that the child appeared to be becoming increasingly frustrated and that his behavior had deteriorated. She reported that the child was disruptive and disrespectful, and his performance was erratic. She opined that the decline in his behavior was probably the result of his struggle to do third grade work. On the Peabody Picture Vocabulary Test, the boy exhibited an almost two-year delay. On the Test of Language Development-2, the child earned quotient scores of 70 for spoken language, 81 for listening, 64 for speaking, 74 for semantics and 70 for syntax.

        Later in December, 1996, the building-level child study team met to review the child's progress as provided for by the mediation agreement. The child study team concluded that the child was not successful in his current educational program. On January 28, 1997, the child's mother met with the CSE. The child's third grade teacher reported that the child demonstrated the academic abilities of a first grade student. She indicated that there had been some growth in his writing skills, but he could not focus independently and was frustrated. The teacher further indicated that the child "shut down" completely during social studies and science. She also reported that the boy became frustrated to the point of becoming disruptive in class, and that he required constant 1:1 instruction with the use of manipulatives and daily life experiences. The child's mother questioned whether her son's curriculum had been adequately modified for him, and suggested that he would have achieved more if a full-time aide had been assigned to him. The CSE adopted its previous recommendation that the child be placed in a 12:1+1 self-contained class in the Willow Road School.

        The hearing in this proceeding was begun on March 7, 1997, and completed on September 11, 1997. Final briefs were submitted to the hearing officer in December, 1996. The hearing officer suggested that the hearing be reopened to "bring him up to date" before he rendered his decision, but respondent opposed his suggestion. In his decision which was dated January 19, 1998, the hearing officer reviewed the testimony of the child's third grade teacher and the testimony of other staff who had worked with the child during the 1996-97 school year, as well as that of the boy's second grade teacher. He rejected petitioners' contention that respondent had not provided their son with an appropriate inclusionary educational program pursuant to the mediation agreement, and found that respondent had demonstrated that the child could not be appropriately educated in a regular education class, even with the use of supplementary aids and services. Consequently, he upheld the CSE's recommendation that the child be placed in a self-contained class in respondent's Willow Road School.

        I will briefly note that petitioners assert that respondent should have agreed to the hearing officer's suggestion to reopen the hearing for an update on the child's performance during the first portion of the 1997-98 school year. Respondent asserts that the child's progress during the 1997-98 school year was beyond the scope of the hearing regarding his program and placement for the 1996-97 school year. I agree with respondent.

        Petitioners challenge the hearing officer's finding that respondent had demonstrated that their child could not be appropriately educated in a regular education class with supplementary aids and services. They assert that respondent did not abide by the spirit of the mediation agreement because the biweekly meetings of the child's mother and respondent's staff focused upon what the boy was academically unable to do, rather than upon how his curriculum could have been adapted in accordance with the pedagogical material which the child's mother shared with respondent's staff. It should be noted that the child's mother is certified by the State Education Department to teach elementary education, but she is not certified as a special education teacher. Petitioners also assert that the hearing officer failed to acknowledge alleged discrepancies between the third grade teacher's testimony and that of the student teacher who worked with her from September through November, 1996. They contend that the testimony by the child's speech/language therapist in support of a more restrictive placement for the child was directly contradicted by the therapist's written report. Petitioners ask that the hearing officer's decision be annulled and that respondent be directed to maintain their son's placement in a regular education class.

        Respondent asserts that the evidence in the record demonstrates that a regular education placement was no longer appropriate for petitioners' child during the 1996-97 school year, and that the hearing officer's decision should be upheld. The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 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 child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).

        Petitioners have not explicitly challenged their son's IEP for the 1996-97 school year, although I must note that, at the hearing, the child's mother testified that the boy could already do some of the things which were in his annual goals and short-term instructional objectives for that school year (Transcript, pages 863-866). She also objected to the fact that her son's annual goals for social studies and science were referenced to the second grade curriculum, as they had been for the preceding school year. I note that the boy's 1996-97 annual goals and supporting short-term instructional objectives for reading, writing mathematics, social studies and science appear to have been taken verbatim from the boy's IEP for the 1995-96 school year. In determining whether those goals and objectives continued to be appropriate for the child in the 1996-97 school year, I have carefully reviewed the testimony of the teachers who worked with him during that school year, the results of the testing performed by the resource room teacher in November, 1996, and samples of the boy's work from the 1995-96 school year (Exhibit 3). It is readily apparent from Exhibit 3 that the child continued to have significant deficits in the basic academic skills of reading, writing and arithmetic. While I agree with his mother that the child appears to have mastered the concept of using a capital letter for the pronoun I, which was one of the writing objectives on his 1996-97 IEP, I am not persuaded that his 1996-97 annual goals and short-term objectives were inappropriate. The boy's resource room teacher, who selected his IEP goals and objectives for the 1996-97 school year testified that the goals for science and social studies for the 1995-96 school year were repeated for the 1996-97 school year because the boy's second grade teacher believed that the child had not mastered them during the 1995-96 school year. The second grade teacher testified that there had been very little improvement in the child's reading and writing skills during the 1995-96 school year. Under the circumstances, it would not be unreasonable to repeat the child's reading and writing goals and objectives during the 1996-97 school year.

        The real dispute between the parties centers on the special education services which the CSE recommended to afford the child a reasonable opportunity to achieve his annual goals in the least restrictive environment. The crucial question is to what extent does petitioners' son require specialized instruction in order to derive significant benefit from his instructional program. During the first and second grades, the child received supplemental special education in a resource room. In other words, the special education he received was intended to reinforce and assist him to understand the primary academic instruction he received from his first and second grade teachers. A comparison of the child's scores on the Woodcock-Johnson Psycho-Education Battery in May, 1994 and April, 1996 reveals that the child made some academic achievement. He also appears to have made some gains between April, 1996 and November, 1996 (Exhibit 1). However, I am mindful of the resource room teacher's testimony about the significance of the child's November, 1996 Woodcock-Johnson scores. She pointed out that a six months gain could be achieved by correctly answering only one or two more questions than in the previous testing. The resource room teacher also testified that she had not observed a corresponding gain in the child's actual performance in the classroom. She indicated that although the boy's sight word vocabulary had increased, his ability to comprehend what he read had not improved (Transcript, page 303). She described the child as a rote learner of mathematics, who did not understand the mathematical concepts, and as a student who could not learn to read with phonics.

        Even with the assistance of the student teacher, the child continued to be frustrated by his inability to keep up with his classmates. The student teacher testified that the child would "shut down" and turn his back on her (Transcript, page 107). On one occasion, he reportedly told the student teacher that he wished he could die (Transcript, page 110). The student teacher testified that petitioners’ son would disrupt the class by acting out three or four days a week (Transcript, page 134). Contrary to petitioners’ assertion, I find that the third grade teacher’s testimony was consistent with the student teacher’s testimony. The achievement and behavior which these two teachers testified about was consistent with the description provided by the boy’s resource room teacher and his speech/language therapist.

        Petitioners also question whether respondent’s staff adequately modified the regular education curriculum to meet their son’s needs. I note that the child’s mother testified that her son’s second grade teacher did modify the curriculum (Transcript, page 745). The child’s third grade teacher discussed various modifications which were used in the 1996-97 school year such as "inventive spelling," a number line and calculator for mathematics, taped textbook for social studies, audio tapes and materials geared to his level for reading, first grade worksheets for the concepts of days and months, and having him print instead of write cursively. She also testified that she had used the teaching strategies which were recommended in the pedagogical material which the child’s mother had given to her (Transcript, page 190).

        Upon the record which is before me, I find that petitioners' son requires primary special education to meet his academic needs, rather than the supplemental special education instruction which he has been receiving. In determining the extent to which he requires such instruction. I note that 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 CFR 300.550 [a][2]).

            It is not necessary to establish that the child 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. School Dist., 874 F. 2d 1036 [5^th Cir., 1989]). The relevant question is whether the child 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 and Bd. of Ed. South Lewis CSD, 839 F. Supp. 968 (N.D. N.Y., 1994); Application of Bd. of Ed. of Schalmont CSD, Appeal No. 90-19; Application of a Child with a Disability, Appeal No. 93-4). The fact that a child with a disability might make greater academic progress in a special education class may not warrant excluding the child from a regular education program (Oberti v. Borough of Clementon Sch. Dist., 995 F. 2d 1204 [3^rd Cir., 1993]). The CSE must also consider the unique benefits, academic and otherwise, which the child may receive by remaining in regular classes, e.g., language and role modeling with non-disabled peers (Greer v. Rome City Sch. Dist., 950 F. 2d 688 [11^th Cir., 1991]). In addition to determining the benefit to the child in being placed in a regular education class, the CSE must also consider what effect the child's presence in a regular education class would have on other children in that class (Daniel R. v. El Paso Indep. School Dist., supra; Greer v. Rome City Sch. Dist., supra; Application of a Child with a Disability, Appeal No. 94-23.

        I am not persuaded by the record which is before me that petitioners' son could make satisfactory progress in a regular class setting, even with the assistance of an "inclusionary aide," as his mother suggested at the hearing. Although the child has ADHD, his medication appears to have been somewhat effective in controlling the effects of that condition, as noted by Dr. Kaplan when he evaluated the boy. In addition, I note that an aide could not provide the specialized instruction which the boy needs (see 8 NYCRR 80.33 [a]). A teaching assistant (see 8 NYCRR 80.33 [b]) may provide some instructional assistance under the general supervision of a certified teacher. However, this child requires direct instruction using specialized techniques to develop his basic academic skills and to acquire important information in the elementary school curriculum. One possibility would be a consultant teacher (see 8 NYCRR 200.1 [1]). That would, however, require the assignment of a certified special education teacher to the boy's regular education classroom on virtually a full-time basis. The individuals who have worked with petitioners' son in school have expressed their concern about his isolation from his classmates. Even the boy’s physical education teacher, whom petitioners called as a witness, expressed concern about the child’s lack of interaction with others. Placing the child in a regular education classroom with a special education teacher to teach him a significantly modified curriculum would, in my judgment, increase the degree of the boy's isolation, and would therefore not assist him in developing more positive interactions with his classmates. On the other hand, enrolling the child in a self-contained class of students with similar needs and abilities could afford him the opportunity to develop both academically and socially. I recognize that in this instance the proposed special education class would have been in a different school than the school which he would attend if he were not disabled (cf. 34 CFR 300.552 [c]), but that fact does not outweigh the benefits which he could derive from placement in the proposed class.

        I have considered petitioners’ other contentions, which I find to be without merit.

THE APPEAL IS DISMISSED.