University of the State of New York Emblem
The State Education Department
State Review Officer


No. 90-3


Application of a CHILD WITH A HANDICAPPING CONDITION, by his parents, for review of a determination of a hearing officer relating to the educational program provided by the Board of Education of the East Greenbush Central School District.


Cooper, Erving, Savage, Nolan and Heller, Esqs. attorneys for petitioners, Robert G. Wakeman, Esq., of counsel O'Connell and Aronowitz, Esqs. attorneys for respondent, Elaine Pers, Esq., of counsel


Petitioners appeal from the determination of an impartial hearing officer which denied petitioners' request that the Board of East Greenbush Central School District be ordered to provide their son with reading instruction using a particular methodology. The appeal must be dismissed.

Petitioners' son, who is now 16 years of age, was initially classified as a learning disabled pupil upon entering the East Greenbush Central School District as a fifth grade pupil in 1985. That classification has continued and is not in dispute in this appeal.

The pupil has been enrolled in regular education classes, with the assistance of resource room services. Petitioners' son was provided with speech/language therapy through the 1987-88 school year. He also received remedial reading for one semester in the 1989-90 school year, although not as part of a special education program.

In October, 1988, while the pupil was beginning eighth grade, respondent's school psychologist performed an evaluation, in which a partial measure of the child's intellectual ability was obtained and certain academic screening tests were performed. The school psychologist found that petitioners' son was a pupil of average ability, but had deficits in auditory memory and written expression. The child's individualized education program (IEP) for the 1988-89 school year provided that he was to complete the requirements for the regular eighth grade curriculum, with daily support from a resource room and the alteration of test formats or directions, if needed.

In April, 1989, petitioners were invited to attend a meeting of respondent's committee on special education (CSE) for the purpose of considering a triennial evaluation and the preparation of an IEP for the 1989-90 school year. The child's mother advised the CSE chairperson that she wished to have an independent evaluation of her son completed before the IEP was completed. Nevertheless, the CSE met without the parents on May 4, 1989, at which time a Phase I IEP was completed. On or about June 16, 1989, the CSE chairperson received the results of an independent evaluation, including a psychological evaluation and a psycho-educational evaluation. However, the CSE did not reconvene to consider the independent evaluations.

The psychologist who performed the independent psychological evaluation found that the child was of average intelligence, with a major deficiency in short term memory and sequencing. In May, 1989, the psycho-educational evaluator reported that the child's visual processing skills were stronger than his auditory processing skills. The psycho-educational evaluator also reported that the child's word identification skills were at a 6.5 grade equivalent, while his passage comprehension skills were at 5.5 grade equivalent. His writing and spelling skills were reported to be around the third grade level, while his arithmetic skills were reported to be at the beginning of the seventh grade level. Although the evaluator concluded that the boy had weakness in comprehension, vocabulary, writing and spelling, she recommended that the child receive a structured, sequential program with emphasis on his decoding and encoding skills, rather than a program which addressed his comprehension and vocabulary skills.

In October, 1989, the child's mother requested that a hearing before an impartial hearing officer be held to review her son's educational program for the 1989-90 school year. Thereafter, petitioners' attorney and respondent's attorney discussed possible ways to resolve the matter, but a hearing was eventually held on April 6 and 11, 1990. At the hearing, petitioners challenged the appropriateness of the educational program provided to their son by respondent, and requested that they be reimbursed for the cost of the independent evaluations which they had obtained and that respondent be directed to pay for the tutoring of their son in the Orton-Gillingham method of reading instruction until the district could provide its own program using that method.

In a decision dated June 29, 1990, the hearing officer ordered respondent to pay petitioners the sum of $525 for the cost of the independent evaluations which they had obtained for their son. The hearing officer further ordered respondent to complete a comprehensive assessment of the boy's language abilities and needs by an appropriately certified multi-disciplinary team prior to developing the child's Phase I IEP for the 1990-91 school year. The hearing officer also directed respondent to provide an appropriate remedial program for the child, taking into consideration methodologies such as Orton-Gillingham.

The hearing officer further directed respondent to add the related service of family counselling to the IEP, so as to enable petitioners to better assist their son with his school assignments. With regard to the IEP for the 1989-90 school year, the hearing officer found that the IEP failed to adequately address the child's needs for remedial instruction in reading, writing and spelling, and that the CSE should not have developed the IEP without waiting for the results of the independent evaluations.

Petitioners contend that the hearing officer did not issue a final decision, notwithstanding the fact the hearing officer gave the school district very specific directions to be followed in the preparation of the pupil's IEP for the 1990-91 school year. They request that respondent be ordered to provide a highly structured, integrated and sequential program of remediation of their son's decoding and encoding skills with emphasis on oral and written language training. They assert that the program of remediation should be multisensory and linguistically based, and refer specifically to the Orton-Gillingham method.

Respondent contends that the IEP for the 1989-90 school year was appropriate to the needs of the pupil, and was developed in accordance with applicable law and regulation.

The May 4, 1989 meeting of the CSE was held for the purpose of an annual review of the pupil's program, which was to be based upon a triennial evaluation of the pupil. 8 NYCRR 200.4(f)(4) provides that a CSE must arrange for a reexamination of each pupil with a handicapping condition at least every three years by a physician, a school psychologist, and to the extent necessary, by other qualified professionals. Such evaluations must provide sufficient information to determine the pupil's individual needs and continuing eligibility for special education. I find that the triennial evaluation performed by respondent was inadequate, because it did not include an examination by a physician, nor did it include a psychological evaluation. The CSE did not consider the psychological evaluation performed by the school psychologist in the Fall of 1988, and had not yet received the results of the pupil's independent psychological evaluation. I also note that the record does not demonstrate that the CSE had current data relating to the child's performance levels in reading, spelling and writing at the time it considered his educational program for the 1989-90 school year. This is an especially significant omission, in view of the pupil's continuing difficulties with those three skills.

With regard to the failure to include a psychological evaluation in the triennial review, I note that the CSE chairperson testified at the hearing that respondent deferred from obtaining a psychological evaluation, because the child's mother had withdrawn her consent to the testing of her son. However, 8 NYCRR 200.5(b)(1) provides that parental consent is required for the initial evaluation of a pupil not previously classified as having a handicapping condition and for the initial placement of a child in a special education program. Neither of these two conditions is applicable to the facts of this case. Although the CSE could have deferred on providing its own psychological evaluation and relied upon the independent psychological evaluation, it developed the pupil's IEP on May 4, 1989 in the absence of that independent evaluation. It must also be noted that a CSE must, in any event, consider evaluation material submitted to it by a parent (8 NYCRR 200.5 [a][1][v]).

One further comment must be made about the procedure used by the CSE. The Education of the Handicapped Act emphasizes the participation of parents in the development of an IEP (School Comm. Town of Burlington v. Dept. of Ed. Massachusetts, 471 U.S. 359 & 359). Parents must be given an opportunity to attend CSE meetings for the purpose of participating in the development of IEPs (8 NYCRR 200.4 [c][3]). In this instance, the child's parents were invited to attend the May 4, 1989 meeting. However, the chairperson was advised by the child's mother that she preferred to have action deferred until the results of the independent evaluations were obtained, which the chairperson agreed to receive. Under the circumstances, it was inappropriate for the CSE to proceed to develop the IEP on May 4, 1989, in the absence of the parents and the new evaluation material.

I find, as did the hearing officer, that petitioners are entitled to be reimbursed for the independent psychological and psycho-educational evaluations which they obtained and which provided more current data about the pupil (8 NYCRR 200.5[a][1][vi][a]).

I also find that the IEP developed for petitioners' son for the 1989-90 school year was defective, in that it failed to identify the pupil's specific needs in the areas of reading, writing and spelling, and also failed to provide specific annual goals in each of those areas. The child's difficulties in reading, writing and spelling have been evident throughout his enrollment in respondent's schools, and are the basis for his classification as a learning disabled pupil. At the time the CSE prepared the IEP in May, 1989, respondent's own test results indicated that the child's reading level was approximately three years below his grade level and that his spelling was approximately five years below his grade level. The pupil had also failed the preliminary competency test in writing administered in October, 1988. However, the IEP merely states that the pupil is easily frustrated on writing and copying tasks. The annual goals listed on the IEP make a brief reference to reading for understanding, but do not provide much meaningful guidance in ascertaining what will be done for the pupil. The IEP also gives little indication of how the pupil's achievement of goals would be determined, other than a general expectation that the child would receive a grade of at least 65 in each of his regular education classes.

With regard to the program provided to petitioners' son during the 1989-90 school year, the record indicates that, despite his obvious need for assistance in reading, he did not receive any remedial reading until the second semester of that year. At that time, he was enrolled in a remedial reading program as a pupil with special education needs (PSEN), rather than as a component of his IEP. The remedial reading teacher testified that he was not aware of the child's IEP, and had only brief discussions with the child's resource room teacher. The resource room teacher testified that she had worked primarily to assist the pupil in organizing his school work, and had assisted him in reading his assignments in the courses he was taking. The resource room teacher appears to have done little to address his reading needs, and conceded that she had not provided specialized instruction in spelling. In essence, the program provided the pupil was designed to provide support in coping with his regular classes, but did not address his specific needs as a pupil with a handicapping condition.

While the petitioners and respondent agree that the pupil has deficits in certain skills such as reading and spelling, they do not agree on the extent of the deficits. The record includes the results of various standardized tests which have been administered to the pupil, including the Woodcock Reading Mastery Test, Revised, administered by the district's supervisor of reading in February, 1990. The results of that test purport to demonstrate a substantial improvement in the pupil's reading ability. However, those results are at sharp variance with the other test data in the record. I concur with the hearing officer's finding that further testing is required to establish the pupil's needs.

Further testing as to the specific nature of the pupil's disability in reading may also assist in resolving the primary dispute between the parties as to whether an appropriate educational program must include instruction using the Orton-Gillingham technique. The need for this technique is premised upon petitioner's assertion that their son has poor decoding skills, which could best be remediated by the use of the Orton-Gillingham technique. The two expert witnesses testifying on behalf of petitioners expressed a preference for this technique, while conceding that it was not the sole method to address the pupil's needs. Moreover, respondent's expert witness, after analyzing the same test data as petitioners' witnesses, concluded that the pupil already has strong decoding skills, but needs help in identifying whole words and in spelling. It is also apparent from the record that the child's ability to comprehend passages has not improved significantly since fifth grade.

Until there is clearer evidence of the child's specific needs, it would be premature to conclude that one teaching methodology must be employed. I fully understand petitioners' concern for their son's slow rate of progress in developing reading skills. However, I am not persuaded by this record that improvement in his reading will occur only if a particular methodology is used. Finally, I note that the hearing officer's decision specifically directed respondent's CSE to consider the use of the Orton-Gillingham method when specifying the remedial goals and objectives for the pupil in his 1990-91 IEP.


Dated: Albany, New York                                                                 _________________________
           October 3, 1990                                                                       HENRY A. FERNANDEZ