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The State Education Department
State Review Officer

No. 90-8

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

Appearances:

Legal Services of Central New York, Inc., attorney for petitioners, Frederick M. Stanczak, Esq., of counsel

Hogan and Sarzynski, Esq., attorneys for respondent, Edward J. Sarzynski, Esq., of counsel

DECISION

Petitioners appeal from the determination of an impartial hearing officer which found that respondent had provided an appropriate educational program for petitioners' daughter during the 1989-90 school year and denied petitioners' request that respondent be ordered to pay for the services of a private tutor of the learning disabled. The appeal must be sustained in part.

Petitioners' 10 year old daughter was originally classified as a learning disabled pupil in March 1987, when she was enrolled in the first grade at respondent's Elm Street Elementary School. The pupil's classification as learning disabled has continued, and is not in dispute in this appeal.

Respondent's committee on special education (CSE) recommended that the pupil remain in a regular education class, with resource room assistance as well as occupational therapy and physical therapy for the remainder of the 1986-87 school year. The student continued to receive resource room services, as well as occupational therapy and physical therapy, during the 1987-88 school year while she was in second grade. In April, 1988, the CSE recommended that the pupil repeat second grade during the 1988-89 school year. Petitioners accepted the recommendation of the CSE, and the student repeated second grade during the 1988-89 school year.

During the 1988-89 school year when she repeated the second grade, petitioners' daughter began to demonstrate negative feelings about school and her abilities. Petitioners contacted respondent's school psychologist, who began a psychological evaluation of the pupil in March, 1989. The school psychologist found that the pupil had significant deficits in her simultaneous mental processing, but was unable to complete the evaluation before he left his position with the school district. Respondent agreed to have the evaluation completed by a private psychologist to whom petitioners had gone for assistance in dealing with their child's behavior at home. The psychologist, who is also certified as a school psychologist, found that the child functioned in the borderline to low average range of intelligence, with relative strength in her acquired fund of general information and ability to reason abstractly. However, the psychologist further found that petitioners' daughter had significant deficits in visual-motor integration and visual perception skills, as well as in the pupil's receptive language skills. The psychologist predicted that the pupil would have considerable difficulty in third grade, and would require increased assistance in respondent's resource room in order to remain in a regular education program. The psychologist recommended that respondent consult with a learning disabilities specialist to assist in developing remediation strategies for the pupil.

Respondent's CSE met on June 16, 1989 for the purpose of planning a Phase I Individualized Education Program (IEP) for the 1989-90 school year. The minutes of the CSE meeting reveal that the CSE agreed to recommend to respondent that the district contract with a learning disabilities specialist to work with the pupil during July and August, 1989 and to consult with respondent's staff in the development of an appropriate program for the pupil during the 1989-90 school year. On June 21, 1989, the chairperson of the CSE wrote to the superintendent of schools and asked that respondent approve the CSE's recommendation at respondent's meeting of June 27, 1989.

Respondent considered the recommendation at its June 27 meeting and requested that the CSE explain further its recommendation. On July 6, 1989, respondent disapproved the CSE's recommendation to engage the services of a learning disabilities specialist to work with the pupil during the summer and to consult with the pupil's teachers during the 1989-90 school year.

Respondent did not formally notify petitioners of the rejection of the CSE's recommendation as required by the provisions of 8 NYCRR 200.5(5). However, petitioners did learn of respondent's action in July. Nevertheless, they arranged for their daughter to be seen on a weekly basis by a private learning disabilities specialist during the summer of 1989. Notwithstanding the respondent's rejection, the resource room teacher met with the learning disabilities specialist in August, 1989, to discuss the student's program for the new school year.

At its June 16, 1989 meeting, the CSE deferred the completion of an IEP for the pupil, because it did not have current evaluations of the pupil from the pupil's occupational and physical therapists. On November 20, 1989, a Phase I IEP for the 1989-90 school year was developed at a meeting of the CSE. The IEP provided that the pupil be partially educated in a regular third grade program, but would receive special education instruction in mathematics and spelling for one hour each day and resource room services for 30-45 minutes three times each week. Remedial mathematics would be provided through a Chapter I ECIA class. The IEP further provided that petitioners' daughter receive speech/language therapy for 30 minutes each day, and that the physical therapist and occupational therapist who had previously provided therapy would only serve as consultants.

On December 5, 1989, petitioners requested the appointment of an impartial hearing officer to consider their dissatisfaction with their daughter's educational program. A hearing was held on March 16 and April 23, 1990. By decision dated July 10, 1990, the hearing officer found that the program provided to petitioners' daughter during the 1989-90 school year was appropriate to meet her needs, and that the Phoenix Central School District was not obligated to pay for the services of the learning disabilities tutor employed by petitioners to provide services to their daughter from July, 1989 through April 23, 1990.

Petitioners maintain that respondent failed to establish the appropriateness of the program which it provided to their daughter during the 1989-90 school year, and that, in fact, neither the IEP as drafted nor the services provided by respondent were adequate to meet the specific needs of their daughter.

Respondent is responsible for providing an appropriate program for each of its pupils with handicapping conditions pursuant to the provisions of the Education of Handicapped Children Act (20 USC 1401 et seq.) and Article 89 of the Education Law. An appropriate program must include instruction specifically designed to meet the unique needs of the pupil, supported by such services as are necessary to permit the pupil to benefit from instruction (Rowley v. Bd. of Education), 458 U.S. 176). It is well settled that a board of education bears the burden of establishing the appropriateness of its program (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; (Matter of Handicapped Child, 23 id. 415; Matter of Handicapped Child, 25 id. 353; Application of a Child with a Handicapping Condition, 27 id. 335; and Application of a Child with a Handicapping Condition, 29 id. 83).

An appropriate program begins with an IEP which accurately reflects the findings of a pupil's evaluation (Matter of Handicapped Child, 23 Ed. Dept. Rep. 386), and which considers the pupil's present levels of development and individual needs (8 NYCRR 200.4 [c][2]). An IEP must also set forth specific goals for the pupil which address the various components of the pupil's handicapping condition (Matter of Handicapped Child, 25 Ed. Dept. Rep. 17; Matter of Handicapped Child, 25 id. 112). An IEP should also be sufficiently specific to fairly apprise the pupil's parents of the nature of the proposed placement (Matter of Handicapped Child, 25 Ed. Dept. Rep. 17; (Matter of Handicapped Child, 25 id. 260).

In this instance, the record is unclear as to what, if any, IEP was in effect for petitioners' daughter as of September, 1989. The IEP prepared at the June 16, 1989 CSE meeting was never formally acted upon by the CSE, nor was it submitted to respondent for approval. Nevertheless, respondent's assistant superintendent for instruction testified that the June 16 IEP provided the basis for the pupil's program at the beginning of the 1989-90 school year. That IEP set forth three general goals of improving the pupil's skills by having care plans developed in consultation with an employee of the Oswego County BOCES and a "Learning Specialist". I find that even if that IEP had been formally approved by the CSE and respondent, it would nevertheless be inadequate because its annual goals are not specific and are vague (Matter of Bd. of Ed. West Seneca C.S.D., 24 Ed. Dept. Rep. 481; Application of a Child with a Handicapping Condition, 27 id. 305). The June 16 IEP is also unclear in its description of the educational services to be provided, in that it is virtually impossible to ascertain the setting in which the pupil was to receive instruction in various subjects. Although an explanation of the services actually provided to the pupil could have been offered at the hearing, the witnesses testifying on behalf of respondent lacked actual knowledge of the pupil's program. Consequently, I must find that respondent has failed to meet its burden of proof in establishing the appropriateness of the program which it provided to petitioners' daughter at the beginning of the 1989-90 school year.

The record shows that on November 20, 1989, the CSE developed another IEP for the 1989-90 school year, which on or about December 11, 1989 was sent to respondent for approval. The November 20 IEP does provide more specific goals for the pupil, and does appear to address her language needs. The IEP provides that the pupil would receive special education in mathematics and spelling, as well as speech language. She would also be in a resource room for 1.5 to 2 hours each week, although the purpose of such service is not apparent from the IEP. It is not clear in the record why the pupil would receive special education instruction in mathematics and would also audit a Chapter I mathematics class.

I find that the program provided by respondent is a fragmented approach to meeting the needs of this pupil. The test data and the pupil's academic performance strongly suggest that the pupil requires a more coherent special education program which is language intensive, rather than a regular education program supplemented by resource room services. This pupil's special education needs may be met in a special class setting in which a modified curriculum is presented with a student to staff ratio of 12:1. Language instruction may be incorporated with the group lessons presented in such a class. Mainstreaming with chronological peers of the pupil should also be provided to facilitate the pupil's development of age appropriate social skills.

Having found that respondent has failed to demonstrate the appropriateness of the program which it provided to petitioners' daughter during the 1989-90 school year, I must next determine whether respondent should be compelled to pay for the services of the learning disabilities tutor engaged by petitioners to provide services to their daughter. A board of education may be required to pay for services obtained by the parents of a pupil with a handicapping condition, if the services offered by the school district were inadequate or inappropriate, the services selected by the parents were appropriate and equitable considerations support the parents' claim (School Committee of The Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359; Application of Child with a Handicapping Condition, 27 Ed. Dept. Rep. 378).

I find that there is no basis for concluding that the services provided by the learning disabilities tutor during the months of

July and August, 1989 were appropriate, because the pupil was not eligible for educational services on a twelve month basis under the criteria set forth in 8 NYCRR 200.6(j) of the Regulations of the Commissioner of Education. The record does not demonstrate that the pupil had a handicapping condition, the severity of which required a structured learning environment of twelve months duration in order to maintain developmental levels.

With regard to the services provided by the tutor during the period from September, 1989 through December, 1989, the record reveals that the tutor met with the student for one hour a week for fourteen weeks to provide instruction and drill which, in part, addressed the pupil's language needs. Those needs were not previously addressed by respondent. However, the November 20 IEP which was implemented in late December, 1989, or early January, 1990 adequately addressed the pupil's language needs. I also note that petitioners were advised by the CSE chairperson on more than one occasion after respondent rejected the CSE's recommendation to engage the services of the tutor that this would be worked out in the end. This, in effect, encouraged petitioners to engage the services of the tutor. Therefore, I find that respondent is liable for payment of the tutor's fees for the period September, 1989 through December, 1989, but is not responsible for the tutor's fees thereafter. It should be noted that the tutor is a certified teacher of special education.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

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

IT IS FURTHER ORDERED that respondent shall pay for the tutoring of petitioners' daughter by Ms. Varda Witter to the extent indicated in this decision, at the rate of $50. per hour, within 30 days after the date of this decision.

 

Dated: Albany, New York                                                                 _________________________
           October 12, 1990                                                                       HENRY A. FERNANDEZ