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The State Education Department
State Review Officer

 

No. 92-3

 

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 Honeoye Falls-Lima Central School District

Appearances:
Advocacy for the Developmentally Disabled, Inc., attorney for petitioners, Roger G. Nellist, Esq., of counsel

Wayne A. Vander Byl, Esq., attorney for respondent

DECISION

        Petitioners appeal from the determination of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that petitioner's child be enrolled for the 1991-92 school year in a special education class operated by the Board of Cooperative Educational Services of the First Supervisory District of Monroe County (BOCES). The hearing officer also denied petitioners' request that they be reimbursed for their expenditures in unilaterally placing the child in the Norman Howard School, an approved private school for the 1991-92 school year. The appeal must be sustained.

        Petitioner's child, who is now 15 years old was initially classified as learning disabled by the CSE in May 1987, when the child was in the fourth grade. The child has above average cognitive skills, but he has deficits in reading, spelling, and writing, associated with a difficulty in visual perception of abstract stimuli. Respondent's psychologist, who evaluated the child in January 1991 when the child was in eighth grade, reported that the child had a verbal IQ of 103, a performance IQ of 121 and a full scale IQ of 112. The psychologist further reported that the child achieved grade equivalents of 11.8 in mathematical applications, 10.7 in mathematical computations, 8.0 in reading comprehension, 5.9 in reading decoding, and 3.7 in spelling. The psychologist also noted that the child has poor writing skills, poor spelling skills and grapho-motor deficits. In 1985, the child's neurologist diagnosed the child as having an attention deficit disorder and dyslexia. The neurologist prescribed Ritalin to moderate the child's hyperactivity, which the child has continued to take. The child's classification as learning disabled is not in dispute.

        The child was initially referred to the CSE by his second grade teacher in 1985, because he had an attention deficit and problems with spelling and handwriting. In March, 1985, the CSE recommended that the child not be classified as a child with a handicapping condition. However, the chairperson of the CSE testified at the hearing that the child had received approximately three hours each week of resource room services on an informal basis prior to being classified and was also in a Chapter 1 compensatory education program. The chairperson of the CSE testified that the child continued to receive three hours of resource room services each week until sixth grade.

        The child received generally satisfactory marks in fourth and fifth grades. Despite his disability in written expression, the child passed the fifth grade level New York State Pupil Evaluation Program Test in Writing in May, 1988. At the beginning of the 1987-88 school year, petitioners employed a private psychologist to provide counseling for the child, because the child was becoming frustrated by his inability to read and write at a level that met his own expectations. At the hearing, the child's private psychologist testified that he attempted to help the child understand and accept his handicapping condition. The private counseling continued until the Fall of 1988, when it was discontinued because the private psychologist believed that the child's behavioral problems had ameliorated and the child did not wish to continue.

        In the sixth grade during the 1988-89 school year, the child's participation in the resource room was increased to one period each day. His individualized education program (IEP) for such year also provided for extensive testing modifications. These included extended time limits on tests and he was permitted to record answers to test questions in a variety of ways. The child's IEP further provided that the child should have access to a computer to complete written assignments. However, the child was involved in a number of disciplinary incidents, and petitioners discussed other placement options with the CSE chairperson. Nonetheless, the child remained in the regular education program. The child received passing grades in all of his subjects. The child's neurologist, who examined the child in July 1989, concluded that the child was hyperkinetic with developmental dyslexia.

        In the seventh grade during the 1989-90 school year, the child continued to receive primary instruction in regular education classes, with resource room services. The short term objectives on the child's IEP focused upon improving his written expression, his study skills and his understanding of his strengths and weaknesses. The child passed all of his subjects, but received lower grades than he had received in sixth grade. The record includes a number of disciplinary referrals for oppositional behavior in class and absences from class during the 1989-90 school year.

        During the 1989-90 school year the child remained in regular education classes in the eighth grade, with resource room assistance. The child's annual goals on his IEP were to improve his written language skills, his self-concept, and his organization and study skills, and to develop his academic achievement to his potential. During the first semester of the school year, the child was referred to the principal for a number of incidents, including an incident with his resource room teacher during which he allegedly threatened to hit the teacher. At the request of the child's mother, the middle school assistant principal referred the child to the CSE. The child's mother testified that, after meeting with the CSE chairperson, she visited BOCES classes in three other school districts and each was inappropriate for her child. She also visited the Norman Howard School, a private school which subsequently was approved in May, 1991 by the State Education Department to provide instruction to children with handicapping conditions. However, the private school advised petitioners that it would not accept the child in mid-year.

        On January 8, 1991, the child was suspended from school after an altercation with a teacher in which the child allegedly pushed the teacher against some school lockers. The CSE chairperson, who is also respondent's school psychologist, evaluated the child. The psychologist found that the child was a bright student with significant learning disabilities in the areas of reading decoding, spelling and written expression, who needed a higher level of support than could be provided in a resource room. The psychologist recommended that the child be placed in a self-contained special education class.

        At the hearing, the CSE chairperson testified that petitioners had visited three BOCES classes which were found to be inappropriate for the child and that serious consideration could not be given to the BOCES class in respondent's middle school because that class was at its maximum enrollment. In February, 1991, petitioners and the CSE agreed to modify the child's program to provide three periods per day of resource room, in order to afford the child a more structured program.

        After the child had been in the additional resource room program for approximately one month, the child's resource room teacher reported to petitioners that the child was transcribing his notes on a computer and was doing all of his homework. The resource room teacher also reviewed with each of his teachers the provisions of the child's IEP and his management needs. The provisions included testing modifications, use of a computer, books on tape and/or a reader for content-area texts, and an in-class note-taker for the child. However, the initial improvement in the child's performance was not sustained. At the end of eighth grade, the child received failing grades in science and health, and below average grades in English, social studies and mathematics. At the end of the school year, the child's resource room teacher reported that the child was not working at a level commensurate with his ability.

        On June 14, 1991, the CSE conducted its annual review of the child's ninth grade program for the 1991-92 school year. The CSE recommended that the child receive most of his primary instruction in a BOCES special education class of 12 children, a teacher and an aide, and that the child be mainstreamed for certain subjects. The CSE also recommended that the child receive counseling for 30 minutes each week. The CSE further recommended test modifications, including extended time to complete tests, using another person to write the child's extended answers, paraphrasing test questions, and using a computer and a dictionary. To improve the child's ability to master content areas, the CSE recommended that books on tape and/or a reader be used. The child was exempted from the requirement that he take a foreign language. The child's IEP goals were to improve his proficiency in keyboarding, develop his responsibility for academics and behavior, improve his reading decoding skills, and to improve his organizational and study skills. In August, 1991, the CSE chairperson revised the IEP, to update test scores, correct errors, and more fully describe the child's annual goals. On August 28, 1991, respondent approved the CSE's recommendation.

        At the hearing, the child's mother testified that the proposed BOCES placement was discussed, but that no specific class for the child was mentioned at the June 14 meeting. Shortly after the CSE meeting, petitioners were invited to attend an intake meeting with the BOCES. However, they did not attend the meeting, because they wished to have the child enroll in the Norman Howard School. The record reveals that petitioners unilaterally enrolled the child in the private school for the 1991-92 school year.

        On July 10, 1991, petitioners requested that an impartial hearing be held to review the CSE's recommendation. The hearing was held on September 5 and 6, 1991. In a decision dated October 24, 1991, the hearing officer upheld the CSE's recommendation as appropriate to meet the child's needs and as less restrictive than the private school placement preferred by petitioners. However, the hearing officer stated that a final decision on the recommended placement could not be made until the child participated in the BOCES intake process. The hearing officer did direct the CSE to alter the child's IEP to provide that the child have the use of a laptop computer to take notes in class, rather than rely upon another child's notes.

        Petitioners challenge the adequacy of the notice of the CSE's recommendation, as well as the adequacy of the child's IEP which the CSE prepared. They assert that the CSE improperly delegated its responsibility to determine an appropriate placement for the child to the BOCES, and that the specific BOCES class which was discussed at the hearing is inappropriate because the children in such class do not have needs similar to those of the child. Petitioners also assert that the Norman Howard School is appropriate for the child, notwithstanding the fact that it is more restrictive than the placement recommended by the CSE.

        Respondent asserts that the child would be appropriately grouped in the proposed BOCES class, and that such class would meet the child's special educational needs in a less restrictive environment than the private school in which petitioners have enrolled their child.

        With regard to the procedure used by the CSE, the record reveals that neither the notice of the CSE's recommendation nor the child's IEP as originally prepared or subsequently amended discloses what, if any, other placement options the CSE considered. Federal regulation requires that a child's parents be informed of alternative placements which a CSE has considered (34 CFR 300.505 [a][2]). The CSE chairperson testified that the CSE considered other options, such as the Norman Howard School, and alternative high school, a self-contained class at the BOCES center, and the continuation of the child in a resource room program. The child's mother testified that petitioners had discussed the Norman Howard School with the CSE. Although the notice of the recommendation should have listed the other options considered by the CSE, I find that petitioners did in fact discuss at least some other options with the CSE and were aware of the CSE's preference for the BOCES program. Federal and State regulations also require that parents be informed of the evaluations, reports, and records upon which a CSE's recommendation is based (34 CFR 300.505 [a][3]; 8 NYCRR 200.5 [a][4][ii][b]). The notice of the CSE's recommendation does not comport with this requirement. Although this defect does not per se afford a basis for annulling the recommendation of the CSE, there are other defects in the procedure followed by the CSE.

        At the hearing, the CSE chairperson identified the participants at the June 14, 1991 CSE meeting as petitioners, a special education teacher representative, an administrative representative and a parent representative. However, Federal and State regulations require that the child's teacher be present at a CSE meeting at which the child's IEP is prepared (34 CFR 300.344 [a][2]; 8 NYCRR 200.4 [c][3]). In the absence of any evidence that the child's resource room teacher or any other teacher of the child was present at the June 14, 1991 CSE meeting, I must find that the recommendation of the CSE should be annulled (Application of a Child with a Handicapping Condition, Appeal No. 91-39; Application of a Child with a Handicapping Condition, Appeal No. 90-22).

        There are significant differences in the child's IEP as it was prepared in June, 1991 (Exhibit 153), and as it was revised by the CSE chairperson in July, 1991 (Exhibit 156). In the first IEP, the child would be mainstreamed for homeroom, English, mathematics, science and social studies. In the second IEP, the child would not be mainstreamed for either English or science. In the first IEP, the expected high school credential for the child is listed as a Regents diploma. In the second IEP, the expected credential is a local diploma. The CSE chairperson testified that the CSE was concerned about the child's ability to become proficient in a second language, and had therefore recommended that the child pursue a local, rather than a Regents, diploma. The CSE overlooked the State regulation that expressly excuses a child with a handicapping condition from the second language requirement for a Regents diploma, if the child's IEP reveals that such requirement is not appropriate to the child's special educational needs (8 NYCRR 100.5 [b][2][ii][b]). The two versions of the child's IEP also differ in their description of the child's social needs and annual goals. The second version is a more complete statement of the child's needs and goals. The significant differences in the two IEPs do not support the CSE chairperson's testimony that he prepared the second version of the child's IEP to clarify what had been discussed at the June 14 meeting. Indeed, only the CSE as a whole may make a recommendation for the appropriate program for a child (Application of a Handicapped Child, 22 Ed. Dept. Rep. 343). An individual member of the CSE, as was the case here, may not alter elements of a child's IEP.

        An IEP must describe the child's present level of educational performance (34 CFR 300.346 [a]; 8 NYCRR 200.4 [c][2][i]), and must describe the child's individual needs (8 NYCRR 200.4 [c][2][1]). The three significant areas of this child's educational needs are reading decoding, spelling and writing. The child's IEP adequately describes his performance levels in reading decoding and spelling. However, there is no description of the child's performance level and needs in writing. Although the IEP provides that the child should receive counseling as a related service, it fails to set forth the child's social needs which would afford a basis for providing such service.

        An IEP must also set forth annual instructional goals which describe what the child can reasonably be expected to accomplish within a twelve month period in the child's special education program (34 CFR 300.346 [b]; 8 NYCRR 200.4 [c][2][iii]). There must be a direct relationship between a child's annual goals and the child's present levels of educational performance (34 CFR 300, Appendix C, Question 38). The child's IEP does not set forth annual instructional goals in each of the subjects in which the child would receive special education. Indeed, the IEP fails to describe the subjects in which the child will receive special education, which must be inferred from the description of the subjects in which the child will be mainstreamed. I find that this is an inadequate description of the special education services to be provided (34 CFR 300.346 [c]). The child's annual goals should be developed further to distinguish between goals to be addressed in counseling and those to be used in the classroom. The IEP also does not set forth any vocational goals for the child, nor is there any evidence that a vocational assessment has been performed (cf. 8 NYCRR 200.4 [b][2][vi]). If a vocational assessment has not been performed, it should be done in time for the child's next annual review.

        An IEP must be sufficiently specific about each child's needs and annual goals so that the child may be appropriately grouped with other children, in accordance with the provisions of 8 NYCRR 200.6 (a)(3). I find that this child's IEP is inadequate and does not permit an informed decision on the appropriateness of a particular class, even though petitioners and respondent urge that I compare the child's needs with those of other children in the respective classes which each party favors.

        The information about the children in a BOCES self-contained class in respondent's high school is at best speculative, since there is no evidence that the child would have attended such class. The chairperson of the CSE testified that the June 14, 1991 recommendation of the CSE was a referral by the CSE of the child to the BOCES, which in the normal course of events, would have determined whether its program was appropriate for the child. The BOCES was precluded from reaching any determination because petitioners did not attend the intake interview to which they had been invited.

        The effect of petitioners' refusal to cooperate with the request that they attend the BOCES intake interview will be considered in connection with their request for tuition reimbursement. However, before that issue is reached, I must first consider whether the CSE discharged its responsibility to recommend an appropriate program and placement. State regulation provides that the recommendation of a CSE shall indicate the recommended program from the options set forth in 8 NYCRR 200.6 and shall indicate the child's recommended placement (8 NYCRR 200.4 [a][2][iv] and [vii]). That responsibility cannot be delegated to a BOCES, which is a provider of the services recommended by a CSE and approved by a board of education (Application of a Child with a Handicapping Condition, Appeal No. 91-25; Application of a Child with a Handicapping Condition, 28 Ed. Dept. Rep. 376; Application of a Handicapped Child, 25 id. 81; Application of a Handicapped Child, 20 id. 318). In this instance, the testimony of the CSE chairperson establishes that the CSE's recommendation was tentative at best, because the CSE did not know whether the BOCES program would be appropriate or whether there would be space available in a BOCES class for the child. The chairperson's testimony was devoid of details about the program. Essentially the only information provided by the chairperson was that the CSE recommended a class of not more than 12 children, who would receive instruction from a special education teacher, who would be assisted by an aide. Respondent offers no explanation for its failure to ascertain whether the BOCES could provide appropriate services for the child, before the CSE made its recommendation. Upon the record before me, I find that respondent failed to timely offer an appropriate placement for the child for the 1991-92 school year.

        I now turn to whether petitioners are entitled to receive tuition reimbursement for their child's attendance at the Norman Howard School for the 1991-92 school year. A parent is entitled to tuition reimbursement, if the placement recommended by the CSE is inappropriate, the placement selected by the parent is appropriate, and equitable considerations support the claim for reimbursement (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359; Matter of Northeast CSD v. Sobol et al., 170 AD 2d 80; Application of a Child with a Handicapping Condition, Appeal No. 90-8).

        In view of my finding that respondent failed to offer an appropriate placement, the first portion of the Burlington criteria has been satisfied. The key issue with regard to the appropriateness of the placement selected by petitioners is whether such placement is the least restrictive environment for the child. Federal and State regulations require that, to the maximum extent appropriate, each child with a handicapping condition must be educated in the least restrictive environment (34 CFR 300.550 [b][1]; 8 NYCRR 200.6 [a][1]). The CSE chairperson described the child as a good listener, who does not learn well from a book. The chairperson testified that, despite his reading deficits, the child requires age appropriate content, rather than texts that are written at his functional level. The chairperson opined that the child could function successfully in various high school subjects, provided that the reading and writing requirements of such subjects were modified. The testimony of the Assistant Director of the Norman Howard School supports the conclusion that the child could function successfully in that school's high school level academic program, with the curriculum adjustments and special supportive services which the school offers. The year-end report of the child's resource room teacher in the 1990-91 school year supports the conclusion that the child requires a consistent, structured environment, in order for him to develop the necessary organizational and study skills to succeed academically. Although respondent has attempted to develop these skills in its resource room program, it is apparent that a more intensive effort is required. The record reveals that the child is appropriately grouped with other children having similar needs at the private school selected by petitioners. Accordingly, I find that petitioners have satisfied the second portion of the Burlington criteria for tuition reimbursement.

        Equitable considerations also support the awarding of tuition reimbursement. Despite the finding of the CSE chairperson in his January 1991 evaluation of the child that the child required a higher level of support than could be provided in a resource room program, the CSE did not recommend an alternative to the resource room. Although the chairperson testified that the BOCES class at respondent's middle school was full, the record does not reveal whether respondent made an attempt to obtain a waiver from the State Education Department to place the child in such class. Instead, the child remained in the resource room program for the remainder of the year, and his academic performance diminished. The record reveals that petitioners have cooperated with the CSE, up to the time of its recommendation in June, 1991. Moreover, I credit the testimony of the child's mother that she was given insufficient information about the BOCES program to warrant exploring that option. I find that the third criteria of the Burlington decision has also been met.

        THE APPEAL IS SUSTAINED.

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

        IT IS FURTHER ORDERED that, upon the submission of proof by petitioner to respondent of the amount of tuition paid by petitioners to the Norman Howard School for the child's tuition from September, 1991 through June, 1992, respondent shall reimburse petitioners for such expenditure.

 

Dated:

Albany, New York

 

__________________________

 

February 7, 1992

  HENRY A. FERNANDEZ