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The State Education Department
State Review Officer

No. 92-13

Application of a CHILD WITH A HANDICAPPING CONDITION, by his parent, for review of a determination of a hearing officer relating to the educational program provided by the Board of Education of the City School District of the City of Rochester

Appearances:

Advocacy for the Developmentally Disabled, Inc., attorney for petitioner, Mario R. Silva, Esq., of counsel

Adam D. Kaufman, Esq., attorney for respondent, Donald T. Schmitt, Esq., of counsel

DECISION

        Petitioner appeals from the decision of an impartial hearing officer, upholding with certain modifications, the recommendation of respondent's committee on special education (CSE) that the program and placement of petitioner's child be changed from a twelve-month program at the Rochester School for the Deaf (RSD) to a ten-month program in one of respondent's special education classes for deaf and hearing impaired children. The appeal must be sustained in part.

        Petitioner's child, who is nine years old, was first evaluated for a hearing loss, at the age of twenty months. In that evaluation, the child was described as having a severe to profound sensori-neural hearing loss. In April, 1986, the child entered a preschool program at the RSD, where the child has remained. In March, 1988, the child was initially considered for placement by the CSE, as a school age child. The CSE recommended that the child be classified as deaf/hearing impaired, and that he be enrolled in one of respondent's special education kindergarten classes, with a child to adult ratio of 12:1+1, for the 1988-89 school year in part.

        Petitioner challenged the CSE's recommendation. An impartial hearing was held. On November 10, 1988, an impartial hearing officer held that the child should be classified solely as deaf, and that the specific placement recommended by the CSE was inappropriate. However, the hearing officer also held that a 12:1+1 program was appropriate. The Board of Education appealed to the Commissioner of Education from the hearing officer's decision. The child's parent cross-appealed from the hearing officer's finding that a 12:1+1 program was appropriate. On April 17, 1989, the Commissioner dismissed the board's appeal, holding that the child should be classified as deaf, and that the placement recommended by the CSE was inappropriate, because the child would have been inappropriately grouped with the other children in the class. However, the Commissioner sustained the cross-appeal, on a finding that the child required a more restrictive program involving a 6:1+1 child to adult ratio (Application of the City School District of the City of Rochester, 28 Ed. Dept. Rep. 419).

        On August 31, 1989, the CSE recommended that the child be enrolled on a twelve-month basis in a 12:1+1 class at the RSD, and that the child receive the related services of speech/language therapy three times per week and audiology services once per year. On May 14, 1990, the CSE recommended that the child continue in the same program, with the same related services plus counseling twice per week, for the 1990-91 school year.

        During the 1990-91 school year when the child was in second grade, the CSE completed a triennial re-evaluation of the child. In a psychological evaluation completed in October, 1990, the child achieved a performance IQ score of 146. The child's verbal IQ was not assessed because of his handicapping condition. The child's visual-motor integration was measured to be within the high average range. Respondent's school psychologist reported that the child displayed some confusion and anxiety related to his environment outside school. The child was observed in his class at the RSD. The observer reported that the child related well to his teacher, with whom he used only speech to communicate. However, the child was observed to communicate exclusively by signing with his deaf peers. The observer further reported that the child attended well, and followed all of the teacher's instructions with no difficulty. In informal conversation with the observer, the child displayed excellent oral language skills and good articulation skills.

        In an individual education and language assessment completed in February, 1991, the child used speech or speech with supportive signs. The evaluator found that the child had relative strength in organizational skills, problem solving and critical thinking, but weaknesses in spelling and memorization. The child achieved a grade equivalent of 6.1 in mathematics and 2.7 in reading. The child's relatively low score in reading, given his intellectual ability, was attributed to English language delays and difficulty in decoding unknown words. The evaluator reported that the child was clearly able to use written language very effectively for a child his age, in expressing his ideas. The evaluator described the child as a motivated and competitive learner, who had benefitted from the use of an integrated language approach in reading and writing.

        In a hearing evaluation completed in January, 1991, the child was described as having a moderate to profound bilateral sensory-neuro hearing loss. The child, who has used hearing aids since 1986, was further described as having excellent auditory skills in a quiet environment. The child's primary modes of reception were described as a blend of speech reading, audition and signing. The evaluator recommended that an FM amplification system with a directional microphone be used, until further auditory evaluation of the child. The use of a directional microphone screens out extraneous noises in the classroom, which allows the child to focus upon his teacher's speech.

        In a report dated October 15, 1990, the child's teacher reported that the child was working in an academic program which was intended to develop critical thinking and problem solving skills, and that the whole language approach was used to facilitate the child's reading, writing and general communication.

        On March 21, 1991, a school building team reviewed the results of the child's triennial evaluation, and concluded that the child's needs could be met in a school district special education "Option 1" class. An Option 1 class has a child-adult ratio of not more than 15:1 (8 NYCRR 200.6 [f][4]). The building team further recommended that the child continue to receive speech/language therapy three times per week.

        On May 6, 1991, the CSE recommended that the child remain classified as deaf, but that his program and placement be changed to a school district Option 1 class for the deaf and hearing impaired for the 1991-92 school year. The CSE adopted the building team's recommendation for speech/language therapy, and recommended that the child also receive counseling once per week, as opposed to twice per week which he had previously received, and audiology services once per year. The CSE further recommended that the child no longer receive a twelve-month educational program.

        On June 25, 1991, petitioner requested that an impartial hearing be held to review the CSE's recommendation. The hearing commenced on October 16, 1991, and was continued for nine additional days ending on December 26, 1991. In a decision dated January 20, 1992, the hearing officer found that there had been significant growth in the child's educational, communicative, and interactive skills, and that the Option 1 class recommended by the CSE was appropriate and the least restrictive environment for the child. The hearing officer further found that the child was not eligible for a twelve-month educational program under the criteria set forth in State regulation (8 NYCRR 200.6 [j]). However, the hearing officer directed respondent to explore the possibility of having the child attend the RSD during the summer, as a related service, to address the child's social and emotional needs. The hearing officer rejected the petitioner's assertion that the child's individualized education program (IEP) was defective, but suggested that the CSE should, in the future, avail itself of petitioner's input and that the CSE and the RSD needed to improve their interaction. The hearing officer modified the CSE's recommendation by ordering that the change in program and placement be deferred until September, 1992, and ordered respondent to provide the parent and child with orientation to the new program in the Spring of 1992.

        Petitioner challenges the manner in which the hearing officer reached her decision, as well as the conclusions which the hearing officer reached. In her decision, the hearing officer noted that, over the strenuous objection of petitioner's attorney, she had visited the RSD, where she observed the child and talked with the school's principal, and had also visited respondent's Martin B. Anderson School No. 1 and talked with its principal. The latter school is the school the child would attend, if the CSE's recommendation were implemented. The hearing officer summarized her impressions gained through visiting the two schools, but stated that her conclusions had been based solely on the testimony and exhibits. However, she attributed her conclusion to defer the change of the child's program and placement until September, 1992 to the suggestions of the two principals. Petitioner asserts that the hearing officer's visits to the two schools violates the requirements of State regulation that the decision of the hearing officer be based solely on the record. Respondent asserts that the hearing officer had the right to consider real evidence. Respondent relies upon a portion of the State Education Department's publication entitled "A Guide for Impartial Hearing" for the proposition that a trier of fact may acquire knowledge of real evidence by inspection.

        I find that the hearing officer violated petitioner's right to due process of law. State regulation requires that a hearing officer's decision be based upon the record before the hearing officer (8 NYCRR 200.5 [c][10]). Moreover, the parties have the right to be aware of the evidence considered by the hearing officer, and must be afforded an opportunity to rebut the evidence, as an essential element of a fair hearing (Carter v. Kubler, 320 US 243; Simpson v. Wolansky, 38 NY 2d 391; Multari v. Town of Stony Point, 99 AD 2d 838). A trier of fact may not inspect the premises of a facility, without the consent of the parties (Carter v. Kubler, supra; Anderson v. Leblang, 125 Misc. 820; Grauer v. State 11 Misc. 2d 155). Petitioner did not consent to the hearing officer's visitation of the two schools. The record reveals that when the hearing officer disclosed her intention to visit the schools at the hearing held on November 27, 1991, petitioner's attorney asserted that the intended visits would violate the requirement that the hearing officer's decision be based solely on the record.

        In her decision the hearing officer also disclosed that, in preparation for writing the decision, she read two position papers by educators of the deaf, who expressed diametrically opposed positions on the use of American Sign Language by deaf children. The record does not reveal that the hearing officer advised the parties of her intention to read these documents, which were not part of the hearing record. I find that the hearing officer's resort to documents outside of the record, no matter how well-intentioned, also violated petitioner's due process rights (Application of a Child with a Handicapping Condition, Appeal No. 90-16).

        I must also make one observation about the hearing officer's decision, because it also reveals the hearing officer's lack of understanding of her role as a hearing officer. In a section of the decision denoted as findings of fact, the hearing officer provided a twenty-three page summary of the testimony adduced over the course of the hearing and the attorneys' objections to portions of such testimony. Instead of summarizing the testimony, the hearing officer was obliged to sift through the testimony and evidence, and select credible facts which support the conclusions reached by the hearing officer. The hearing officer did not do so in the hearing decision.

        Although the hearing officer's decision must be annulled for the reasons which I have stated, this appeal must also be sustained because the child's IEP is deficient. An appropriate educational program for a child begins with an IEP which adequately describes the child's present levels of performance and individual needs in each of four areas: academic achievement, including learning characteristics, social development, physical development and management needs (8 NYCRR 200.4 [c][2][i] and 8 NYCRR 200.1 [kk]). The child's IEP describes the child's levels of performance in reading and mathematics, as measured on standardized tests. The IEP does not, however, describe his academic needs, and fails to describe his learning style. The latter omission is especially significant in the case of a deaf child, who learns through a variety of modes of reception. The child's educational evaluator and his classroom teacher reported that he learns through a combination of visual and aural modes, and has been successful in a total communication program. The child's IEP noted the child's modes of reception. However, respondent's school psychologist conceded at the hearing that although it was her understanding that the child learns best through the visual mode, the IEP did not specify that fact. The CSE chairperson testified that the child needs a total communication program, but conceded that the child's IEP does not specifically mention total communication. The chairperson explained that it would be up to the people who develop the child's program to be sure that total communication is in the child's program. The chairperson also testified that the child's learning style would be addressed at a subsequent planning conference with the child's teachers. However, the regulatory requirement is that the child's learning characteristics or style be addressed in the IEP prepared by the CSE (8 NYCRR 200.4 [c][2][1] and 8 NYCRR 100.1 [kk]).

        Federal and State regulations require that a child's IEP list the annual instructional goals which the child can reasonably be expected to achieve within a twelve-month period (34 CFR 300.346 [b]; 8 NYCRR 200.4 [c][2][iii]). Annual goals must be sufficiently specific to provide direction to the child's teacher concerning the CSE's expectation, and must address the child's individual needs (Application of a Child with a Handicapping Condition, Appeal No. 91-25). This child's IEP set forth as a reading goal, that the child demonstrate an understanding of passages read. The child's annual goal for language is to demonstrate the ability to organize, sequence and express information in written form. As an annual goal for mathematics, the child's IEP provides that the child is to increase his ability to apply math skills to problem solving. I find that these goals are too broad and general to be of use to the child's teacher, to ascertain at the end of the year whether the child has made meaningful progress, and to be of use to the CSE in selecting an appropriate program and determining whether the child requires a twelve-month instructional program. The child's IEP reflects the CSE's recommendation that the child's program be changed from twelve months to ten months, but does not reveal any information in its discussion of the child's needs and abilities upon which to conclude whether there may be substantial regression during the months of July and August which would require an inordinate amount of review at the beginning of the next school year to re-establish IEP goals from the preceding school year (8 NYCRR 200.6 [k]; 8 NYCRR 200.1 [gg]). At the hearing, the CSE chairperson testified that she did not believe the CSE discussed the issue of a twelve-month program.

        A child's IEP must also describe the specialized equipment and adaptive devices needed for the child to benefit from instruction (8 NYCRR 200.4 [c][2][vi]). This child's IEP lists as adaptive equipment: "FM auditory trainer". However, the record reveals a disagreement between the parties, and an uncertainty among respondent's witnesses at the hearing, about the use of a sound amplification system with a directional microphone. I find that the child's IEP description of adaptive devices is inadequate.

        State regulation further requires that a child's IEP list the test modifications to be used consistently by the child in the recommended educational program (8 NYCRR 200.4[c][2][vii]). Respondent concedes that the child's IEP does not list any test modifications, but asserts that testimony at the hearing detailed the test modifications which are implemented for deaf children at respondent's School No. 1.

        Respondent's assertion misses the point of the regulation. The requirement that a child's IEP set forth the test modifications, as with the other IEP requirements which have been discussed, is intended to assure that the CSE obtains adequate information about the child, and uses that information in the child's IEP to carefully match the child's needs to the program which the CSE recommends. The child's IEP demonstrates that the CSE failed to prepare a document which would afford a basis for selecting an appropriate program. In the absence of an adequate IEP, I find that respondent did not meet its burden of proving that the program recommended by the CSE was appropriate.

        With regard to petitioner's request that I determine that the child's placement at the RSD should be maintained, I note that the child will remain at the RSD, unless the CSE recommends an alternative. If the CSE makes such a recommendation, and petitioner seeks review of the recommendation, the child will remain at the RSD, pursuant to the pendency provisions of Federal and State law (20 USC 1415 [e][3]; New York Education Law Section 4404 [4]).

        Finally, I must note that the transcript of the hearing in this matter has numerous omissions. Respondent tape recorded the hearing. It was not transcribed until after petitioner served her notice of intention to seek review. In one instance I found that the testimony of the child's present principal, about the effect upon the child if his placement was changed to a class in which not all children signed, was lost. Although respondent has the right to maintain either a written or verbatim electronic record of the hearing, it is responsible to ensure that the record is accurate and complete (8 NYCRR 200.5 [c][2]).

        THE APPEAL IS SUSTAINED.

        IT IS ORDERED that the CSE shall recommend an appropriate program for the child, in accordance with the tenor of this decision for the 1992-93 school year.

Dated:

Albany, New York

 

__________________________

 

April 21 , 1992

  HENRY A. FERNANDEZ