98-072

       Petitioner appeals from the decision of an impartial hearing officer which held that the individualized education program (IEP) for the 1997-98 school year developed by respondent's committee on special education (CSE) was appropriate for her son. The appeal must be sustained.

        Petitioner's son was eight years old and had recently completed the second grade at the time of the hearing. I must note that the record is inconsistent and incomplete with respect to the child's educational history, but it appears as though he was born in the Dominican Republic on July 10, 1990, and attended kindergarten for one month in Santo Domingo. Thereafter, the child moved to New York City and attended regular education kindergarten at P.S. 218. That class was not bilingual. For the 1997-98 school year, the child was enrolled in a combined first and second grade bilingual regular education class of twenty students at the Cypress Hills Community School (Cyprus Hills), a small alternative public school in Brooklyn, New York.

        In January, 1998, petitioner requested that her son be evaluated by respondent's CSE because of academic difficulties and language delays. In a social history dated February 12, 1998, based upon an interview with petitioner, petitioner described her son as caring and loving, but very hyperactive. The social worker reported that petitioner indicated that her son related well with his peers and respected authority figures. The social worker further reported that the child's English language skills were slowly emerging, and that his lack of understanding of the English language was a source of frustration for him and contributed to his distractibility. The child also had speech articulation difficulties.

        A bilingual school psychologist evaluated petitioner's son on February 12, 1998. The evaluation was conducted predominately in Spanish, as the child had a limited understanding of English. The psychologist indicated that the test results were presented in descriptive qualitative form because there were no appropriate local norms for bilingual students. The child scored in the upper limits of the borderline range of intellectual functioning, with stronger performance IQ skills than verbal IQ skills. Within the verbal domain, the child demonstrated inconsistencies in his acquired knowledge and concept formation skills. His fund of general information was in the borderline range, as was his ability to select and verbalize appropriate relationships between two objects or concepts. The child's word knowledge skills, social judgment and common sense were in the average range. The child scored in the deficient range in a subtest measuring attention and auditory short-term sequential memory. With respect to the performance domain, the child exhibited a significant weakness in his ability to differentiate between essential and non-essential details, scoring in the deficient range. His ability to recognize cause and effect relationships in regard to social situations was also in the deficient range, as was his ability to analyze and synthesize material. The child's grapho-motor fluency was in the average range. The psychologist further reported that the child scored in the low average range on the test of nonverbal intelligence, which she indicated was consistent with the child's performance on the WISC-III. On the Bender Gestalt Test of Visual Motor Abilities, the child achieved a visual perceptual age score of 5.4 to 5.5. The psychologist noted that while the child's designs were disorganized, they were adequately planned. He was able to recall and draw only four of nine designs from memory, resulting in a score in the below average range. The psychologist concluded that the child appeared to have some visual perceptual motor difficulties.

        The psychologist described the child's thinking as concrete. She noted that the child had difficulty answering questions. He took time to formulate his responses, which were at times inappropriate and not consistently presented in complete sentences. The psychologist indicated that the child had a limited vocabulary. The child had difficulty understanding and following instructions, and required constant repetition and paraphrasing. The psychologist described the boy as soft spoken, friendly, and somewhat anxious, requiring external support and encouragement, and she noted that he appeared to be experiencing feelings of inadequacy and low self-esteem. She concluded that the child had cognitive and language delays, and that it would be in the child's best educational interests to be enrolled in a bilingual instructional program with English as a second language services.

        The district completed a bilingual speech/language evaluation on March 3, 1998. The speech/language evaluator indicated that the child clearly demonstrated Spanish language preference on all tests presented, and noted that formalized tests are not standardized for a Spanish speaking population. On the Goldman-Fristoe Test of Articulation, which was informally translated into Spanish, the child demonstrated adequate ability in Spanish, but would not speak in English. The child's intelligibility in spontaneous speech was noted to be good. The speech/language evaluator reported that the child required a great deal of redirection and repetition in order to respond. She noted that the child's responses were highly imitative and impulsive. The child was unable to provide pertinent biographical data accurately, however, he was able to state and write his full name, age and family composition. The speech/language evaluator reported that the child did not have the language skills necessary to recite the alphabet or the days of the week, and he could count from one to ten, only in Spanish. Moderate delays were noted in the child's receptive linguistic skills, especially for comprehension of basic qualitative/quantitative and prepositional concepts, grammatical systems and elaborated sentence constructions. The child achieved a total age equivalent score of 4.7-4.9 on the Test of Auditory Comprehension of Language-Revised, three years below normal expected limits. He demonstrated extreme difficulty following directional and positional commands. On the Language Processing Test, the child performed in an age appropriate manner. However, he was unable to associate two related items, was unable to categorize items, and was unable to relate similarities and differences of picture word pairs.

        Moderate to severe delays were noted in the child's expressive linguistic skills. His overall knowledge and use of age appropriate informational vocabulary was assessed to be below normal limits. He was unable or unwilling to express his thoughts or ideas in a complete fashion. The speech/language evaluator concluded that the child demonstrated moderate to severe delays in all areas of receptive and expressive cognitive and perceptual linguistic skills, especially in the areas of informational vocabulary, auditory processing and overall pragmatic language. She recommended intensive, small group speech/language therapy.

        In a bilingual educational evaluation conducted on March 11, 1998, the educational evaluator noted that the child was eager to accomplish all tasks requested of him. She further noted that the child appeared to be very knowledgeable, but lacked academic skills. The child communicated only in Spanish. The educational evaluator assessed the child using the Brigance Assessment of Basic Skills because he was unable to perform the Woodcock-Johnson Tests of Achievement. The child knew some personal data, but had difficulty with his age, address, telephone number and date of birth. He could name body parts in Spanish, but had trouble naming them in English. The child exhibited delays in quantitative, directional and positional concepts. He was unable to recite or write the alphabet. In math, the child was able to count to 18 in both Spanish and English. He was unable to write numbers in order and complete one digit computations. His general fund of information in science and social studies was assessed to be extremely delayed. The educational evaluator reported that the child was functioning at the kindergarten level. She recommended that the child continue his bilingual class, with additional support.

        In a school progress report dated March 31, 1998, the child's teacher indicated that the child had little knowledge of letter-sound relationships, and that he could not identify numbers independently or recall them at random. She noted that the child became frustrated easily, and that when challenged, he refused to work. She further indicated that the child demonstrated aggressive and anti-social behavior with his peers and defiant behavior with adults. She indicated that the child required intensive one-on-one instruction and recommended that he be placed in a program that offered small group instruction.

        A 20 minute classroom observation was conducted on April 1, 1998. The child was seated near the front of the class with two other students. The evaluator noted that the teacher was speaking to the class in Spanish. During the observation, the teacher spoke to the child only in Spanish, but spoke English to the other students. The child proceeded to a work center where he received instructions from the teacher in Spanish. He worked quietly, then approached the teacher. After getting some markers, he returned to the work center and began tapping the markers on the desk. He left the work center, approached the teacher again, then walked around the room to a table where he began shuffling quietly through game cards. The child played with the cards, counted them, then began to sing. After he put the cards away, he began to spin a wood block. The teacher approached the child and they both returned to the work center. The teacher reviewed the child's completed work, after which they both returned to the group. The evaluator observed that the child was unable to work at the pace of the class. However, she noted that he was able to work independently for short periods of time after receiving instructions.

        On April 3, 1998, the CSE classified the child as speech impaired, and recommended that he be placed in a self-contained Modified Instructional Services I (MIS-I) class. On July 8, 1998, petitioner requested an impartial hearing because she believed that the recommended class was too restrictive for her son. The CSE reconvened on July 21, 1998. At that meeting, petitioner requested that her son be provided consultant teacher services in a regular education class, that a behavior modification plan be implemented to address her son's focusing difficulties and inappropriate behavior, and that a one-on-one paraprofessional be assigned to her son to help him focus and to assist with the implementation of the behavior modification plan. The CSE modified the child's IEP to provide that he be placed in a regular education classroom with a consultant teacher assigned for one class period per day. The IEP also provided that the child receive two thirty-minute sessions of speech therapy per week in a group of three. Following the CSE meeting, petitioner expressed concern that the CSE failed to recommend a behavior modification plan for her son. In response to this concern, the CSE amended its review notes form the July 21, 1998 meeting to include a suggestion that the child's general education teacher in conjunction with the child's consultant teacher develop a behavior modification program emphasizing positive reinforcement.

        The impartial hearing was conducted on July 29, 1998. The hearing officer rendered her decision on September 15, 1998. She found that the evidence did not establish that the child's behavioral difficulties were severe enough to warrant the assignment of a one-on-one paraprofessional. Accordingly, she found that the program recommended by respondent's CSE was appropriate.

        Petitioner appeals from the hearing officer's decision on a number of grounds. She asserts that her child's IEP is deficient in that it fails to set forth the child's social and behavioral deficits, management needs, and certain learning characteristics, such as his inability to focus. She further claims that the IEP fails to provide for the services of a paraprofessional or other comparable programs to address the child's educational needs. Additionally, petitioner claims that the IEP fails to establish annual goals and short-term instructional objectives to address the child needs, and it fails to include a mechanism to inform the child's parents of their son's progress in achieving his established goals. Further, petitioner claims that IEP is inappropriate on its face because it inaccurately reflects the student to teacher ratio for the consultant teacher services.

        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).

        As noted above, the record is inconsistent and confused with respect to the child's educational history, which is relevant in determining the nature and extent of his special education needs. While the parties agree that the child attended a non-bilingual kindergarten at P.S. 218, it is unclear when and for how long the child did so. Additionally, the record does not reveal whether this child was ever enrolled in first grade. The record does indicate, however, that the child was seven years old and in the second grade during the 1997-98 school year, when he was referred to the CSE. From the confused record, one could conclude that the child was placed directly in the second grade at Cyprus Hills after attending less than a full year of kindergarten in a non-bilingual class at P.S. 218.

        The evaluations show that the child was functioning in the borderline range of intellectual ability, with academic as well as language delays. The educational evaluator concluded that the child was functioning at a kindergarten level. The child's English language skills were described as slowly emerging. The evaluations also show that the child had attention difficulties. Additionally, the child's teacher testified that the child had behavioral issues. I note that the child's evaluators assumed that the child should be in the second grade. However, it is unclear from the record, whether the child's educational needs are a result of a limited intellectual ability, an inability to understand English, attention difficulties, some unidentified deficit, or a combination of these factors.

        Additionally, I note that the record does not include a report of a physical examination of the child. State regulation requires that when a child suspected of having a disability is referred to a CSE, an evaluation of the child, including a physical examination, must be conducted by the CSE (NYCRR 200.4 [b][1][i]). A physical examination report would have been essential for the CSE to reach an informed decision with respect to the child's educational needs. Based upon the information before me, I find that the CSE failed to properly evaluate the child. Accordingly, I find that respondent did not meet its burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child with a Handicapping Condition, Appeal No. 92-12; (Application of a Child Suspected of Having a Disability, Appeal No. 93-45). I recognize that petitioner seeks a determination about the appropriateness of a one-to-one aide for her child, but, it would be premature to address that issue before the nature and extent of her son's special education needs are determined.

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that within 30 days after the date of this decision respondent's CSE shall reevaluate the child, including a physical examination, and shall make new recommendations which will address his specific needs.