The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of Utica
Legal Services of Central New York, Inc., attorneys for petitioner, Paul F. Kelly, Esq., of counsel
Donald R. Gerace, Esq., attorney for respondent
Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that petitioner's child be enrolled in a special education class for the 1992-93 school year. The appeal must be sustained.
Petitioner's child is eight years old. The child has been medically diagnosed as having hypotonia cerebral palsy, as well as tuberous sclerosis. In November, 1990, the child's physician opined that the child had been delayed developmentally because of her neurological immaturity. This was manifested by delays in fine motor skills and sphincter development, and delayed responses to hot and cold temperatures and to pain. The physician reported that the child's vision was impaired, and that her speech was significantly delayed. The physician opined that the child would require the use of a "Touch Talker", an alternative form of communication, until she could master articulated speech, and would need a personal hygiene aide in school. An occupational therapy evaluation completed in September, 1990, when the child was six years and two months old, revealed that her fine motor skills were equivalent to those of a two and one-half year old child, and her gross motor coordination was equivalent to that of a three year old child. The therapist noted that the child had low muscle tone and had difficulty with controlled movements in space. In an evaluation of the child's communication skills completed in March, 1990, the child was reported to communicate by a combination of verbalization, sign language, facial expressions and gestures. The evaluator opined that the child had demonstrated an ability to work with some early learning software on a computer. The child is classified as multiply handicapped, on the basis of her language and motor delays. Her classification is not in dispute.
The child attended a private preschool program until she reached the age of five. She did not attend school during the 1989-90 school year. For the 1990-91 school year, the child was placed by petitioner in a private school's pre-kindergarten class. However, the child attended the private school only briefly. In October, 1990, petitioner consented to having the child evaluated by the CSE. In a social history, petitioner reported that her husband from whom she had been recently separated was deaf, and recommended that both petitioner and the child receive counseling.
In a psycho-educational evaluation completed in November, 1990, the child was found to have significant receptive and expressive language delays. The child's adaptive behavior in daily living and socialization skills was found to be equivalent to that of a child of almost 3 years of age when the child was over 6 years old. The evaluator, who reported that the child had mastered 10 of 19 kindergarten level skills, recommended that the child be placed in a special education class and receive speech/language therapy and occupational therapy.
The child's speech/language skills were also evaluated in November, 1990. The child's verbalization was described to be two or three word utterances of poor to fair intelligibility. An attempt to test the child's receptive language was halted, because the evaluator believed that the child's responses were not sufficiently consistent to present reliable test results. The evaluator estimated that the child's auditory comprehension and verbal ability were equivalent to those of a 2 and 1/2 year old child. The evaluator recommended that the child receive an intensive language therapy program to provide her with training on her augmentative communication equipment and to supplement her 1:1 attention in academic areas.
On December 14, 1990, the CSE recommended that the child be classified as multiply handicapped and that the child be enrolled in a regular education first grade class , although the child had never been enrolled in kindergarten, and that she be provided with the assistance of a full-time aide. The CSE further recommended that the child receive daily speech/language therapy, and the services of an occupational therapist on a consultant basis once per month. The consultant services were intended to coordinate the occupational therapy which the child was receiving on a weekly basis at a local hospital with the educational program that respondent would provide. The child's individualized education program provided that the child should have a Touch-Talker and have access to a computer. Petitioner consented to the child's placement pursuant to the CSE's recommendation.
At the end of the 1990-91 school year, the child's speech therapist reported that the child had shown improvement in her vocabulary and social skills, and that she used the Touch-Talker more appropriately. The child's classroom teacher reported that the child's classroom performance was limited to rote tasks and that she did not readily attend to what happened around her. The teacher recommended that the child be placed in a special education class on at least a one-half day basis. The child's reading level was reported to be at the first grade level, while her mathematics and language arts skills were reported to be at the kindergarten level.
For the 1991-92 school year, the CSE initially recommended that the child be enrolled on a full-time basis in a special education class. However, in July, 1991, the CSE altered its recommendation to provide that the child remain in a regular education first grade class, with two hours per day of resource room services and adaptive physical education. The CSE further recommended that the child continue to receive daily speech/language therapy and monthly consultant occupational therapy.
In February, 1992, the child's neurologist recommended that the CSE obtain a neuropsychological evaluation, which was performed in May, 1992. The school psychologist who performed the evaluation estimated the child's cognitive functioning to be in the moderately retarded range, based upon modified test results. The child's reading, i.e., word recognition, skills were reported to be at a 1.7 grade equivalent. The psychologist further reported that the child had difficulty with comprehension. Her mathematics skills were reported to be at a 1.8 grade equivalent, but the school psychologist reported that the child's only strength was in counting skills. The child's written expression was reported to be at a 1.4 grade equivalent. The school psychologist supported the use of the Touch-Talker and a computer to accommodate the child's learning style, and opined that she should work independently of graded structures. The school psychologist recommended that the child be placed in a special class with a child to adult ratio of no more than 8:1+1 to facilitate the use of associative instruction for the child.
On May 28, 1992, the CSE recommended that the child be placed on a 12 month basis in a 8:1+1 special education class. The CSE also recommended that an aide be assigned to the child because of her inconsistent response to pain. The CSE further recommended that the child receive daily speech/language therapy and that she receive occupational therapy twice per week.
Petitioner requested that a impartial hearing be held to review the CSE's recommendation, and that the child receive an independent neuropsychological evaluation. The hearing was deferred pending completion of the evaluation requested by petitioner. On August 12, 1992, an independent neuropsychological evaluation was completed. The evaluator noted that the child exhibited psychomotor restlessness, inattentiveness, communication difficulties, underdeveloped social skills, echolalia and intrusive behavior. He reported that he also observed the child display stereotypical and perseverative behaviors. The evaluator opined that the child displayed the characteristics of an attention deficit hyperactivity disorder. He estimated that the child had average cognitive ability, based upon her ability to learn a given task, and opined that many of her difficulties, including her social limitations, were attributable to her language and motor coordination disabilities. The evaluator recommended that the child remain in a regular education class, provided that such placement did not result in peer rejection and the child's loss of self-esteem. He further recommended that the child take medication to alleviate her attentional limitations, and that she receive daily speech/language therapy, occupational therapy and physical therapy. The evaluator offered a series of suggestions for addressing the child's learning needs, such as emphasizing the meaning of words through pictorial presentation and expressive word games to develop her expressive language. He recommended that the child's teachers accommodate her need for frequent breaks in activities and changes of cognitive focus.
The hearing commenced on September 29, 1992, and was completed on December 11, 1992. In a decision dated December 28, 1992, the hearing officer upheld the CSE's recommendation that the child be placed in a special education class with a child to adult ratio of 8:1+1, upon a finding that the child was not reaching her potential in regular education. Rejecting petitioner's assertion that the child would model inappropriate behavior if she were placed in a special education class, the hearing officer found that there was no evidence of the child's modeling of any behavior and that the child had not gained socially by placement in a regular education class. The hearing officer modified the CSE's recommendation by requiring that the child be placed in another elementary school and by deleting the requirement that an aide be assigned to assist the child.
Petitioner challenges the hearing officer's denial of petitioner's request to present the testimony of an expert witness. At the conclusion of the third day of the hearing, the hearing officer announced that, not withstanding a waiver of the regulatory requirement that a decision be rendered within 45 days after petitioner's request for a hearing, she would insist that any additional witness must "... provide some new insightful information" (Transcript, October 22, 1992, page 118). When petitioner's attorney stated his intention to call an educator from the State University of New York at Oswego as an expert witness, the hearing officer ruled that the witness could not testify because the witness had not actually seen the child. However, there is no requirement that a prospective expert witness must have seen the child who is the subject of the hearing. The testimony of an expert witness is admissible so long as the factual basis for the expert's conclusions or opinions can be found in the evidence in the record, personal observation by the expert, or a combination of both (Bethpage Water District v. Hendrickson Bros. Inc., 138 AD 2d 660).
Federal and State regulations afford each party to a hearing the right to present evidence and testimony (34 CFR 300.508 [a]; 8 NYCRR 200.5 [c]). A party's right to present evidence is not without limit. I have previously held that a hearing officer has the right to limit the introduction of evidence, including testimony, which is either irrelevant or redundant (Application of a Child with a Handicapping Condition, Appeal No. 92-18). In this instance, hearing officer repeatedly expressed her concern about the length of the hearing. However, it is clear from the record that the testimony of the proposed expert witness concerning the least restrictive environment for the child would not have been redundant. Indeed, during the testimony of the psychologist who performed the August, 1992 independent evaluation, respondent's attorney repeatedly noted for the record that the witness did not have the preparation or experience of an educator. The exclusion of petitioner's proposed expert witness, who is an educator, was prejudicial to petitioner, especially since the CSE chairperson was allowed to testify about the educational requirement of least restrictive environment and the chairperson's perception of the concept of inclusion. Petitioner's expert witness could have provided useful information about the child's need, if any, for primary special education instruction, and suggestions for providing that instruction in the least restrictive environment by the use of direct and/or indirect consultant teacher services or other services. Upon the record before me, I find that the hearing officer abused her discretion in not permitting petitioner's proposed expert witness to testify.
The central issue in this appeal is the appropriateness of the educational program recommended by the CSE for the child during the 1992-93 school year. Petitioner challenges various aspects of the proposed program, but primarily contends that her child should not be removed from a regular education class. Respondent asserts that the child has not succeeded in regular education despite having received appropriate supportive services, and that the recommended program is appropriate.
It is well established that a board of education bears the burden of establishing the appropriateness of the program which it has recommended for a child (Matter of a Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal 90-5). An appropriate placement is one which is reasonably calculated to enable a child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176). Federal and State regulations require that, to the maximum extent appropriate, each disabled child must be educated in the least restrictive environment (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a]). A child with a disability may not be removed from regular education classes, except when the nature of severity of the child's disability is such that education in regular classes with the use of supplementary aid and services cannot be achieved satisfactorily (34 CFR 300.550 [b]). It is not necessary to establish that the child will learn at the same rate, or master as much of the regular education curriculum as his non-disabled peers, in order to require the placement of the child in a regular education class (Daniel R. R. v. State Bd. of Ed., 874 F. 2d 1036 [5th Cir., 1989]). Rather, the relevant question is whether the child can achieve the goals of his or her IEP within a regular education program with the assistance of supplementary aids and services (Application of a Child with a Handicapping Condition, Appeal 90-17; Application of the Bd. of Ed. of Schalmont CSD, Appeal 90-19; Application of a Child with a Handicapping Condition, Appeal 92-15; Application of a Child with a Handicapping Condition, Appeal 92-29).
Upon review of the annual goals set forth in the child's IEP for the 1991-92 school year, and the testimony of the child's first grade teacher during such school year, her resource room teacher and her two speech therapists during such year, I find that there is evidence of the child's achievement of at least some of her annual IEP goals. For example, one of the child's goals was to improve her attending skills. The first grade teacher testified that the child's attentiveness had improved. Other annual goals include an improvement in the child's reading and mathematics readiness skills. The resource room teacher testified that the child had met some IEP objectives involving her word identification and basic computational skills. I also note that in his May, 1992 neuropsychological evaluation of the child, respondent's school psychologist reported that the child's reading recognition skills and mathematics calculation skills were both at the appropriate grade level, notwithstanding the child's significant language disability. One of the child's speech/language therapists, who testified that she had concentrated on improving the child's articulation, further testified that the child's ability to form appropriate sounds for words had improved and that her echolalia had decreased.
The record reveals that the child made progress in the 1991-92 school year, notwithstanding respondent's failure to provide a coherent program which was consistent with the child's IEP. Although the first annual goal on the child's IEP related to improving the child's receptive and expressive vocabulary on augmentative equipment, i.e., the Touch-Talker, two of the child's speech/language therapists testified that respondent provided no training for them to learn how to use the device. One therapist was trained by petitioner to use the device. The other therapist testified that she had not used the Touch-Talker, because she believed the child did not require the use of the machine. The IEP provided that the child was to have "access to" a computer. The child requires a computer because of her severe disability with written language. However, the record reveals that although there was a computer for the child in her resource room class, there was no computer available in the child's classroom. The record further reveals that respondent's staff did not have a common understanding of the services which the CSE intended that the child's aide provide. Upon the record before me, I find that respondent has failed to demonstrate that the recommended special class placement is the least restrictive environment for the child. I must also note that State regulation requires that when a child is to be placed in a special education class, the CSE must assure that such child is grouped with other children who have similar individual needs (8 NYCRR 200.6 [a]). At the hearing, respondent failed to produce any evidence about the needs of the children in the proposed special class.
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 needs, and establishes annual goals and short-term objectives which are related to the child's educational deficits (Application of a Child with a Handicapping Condition, Appeal 92-27). State regulation requires that a child's IEP report the child's present levels of performance and indicate the individual needs of the child (8 NYCRR 200.4 [c][i]). I find that the description of the child's educational achievement set forth as item VI in the child's IEP is inadequate because it lacks the specificity necessary in order to draft appropriate annual goals and short-term objectives for the child. An appropriate annual goal accurately describes a skill or behavior which the child is reasonably expected to accomplish within the next year. Short-term instructional objectives are measurable steps between the present levels of the child's performance and the levels set forth in the child's annual goals. Annual goals such as the child will "maintain and improve her math skills and application of those skills" and will "continue to develop appropriate social skills on a personal and interpersonal level" are much too broad and do not adequately meet the expected level of precision to be useful. A lack of precision in the child's 1991-92 IEP goals contributed to the difficulty in ascertaining the child's progress during that school year. The CSE has a wealth of information from its own evaluations, the independent neuropsychological evaluation, and private agency evaluations which petitioner has provided to the CSE. In preparing a new IEP for the child the CSE should consider all of this information. If the child's new IEP provides for her use of specialized equipment, such as an augmentative communication device, the CSE must ensure that respondent's staff receive adequate training on the use of such equipment.
The CSE must also consider whether it is appropriate to recommend that any services be provided to the child on a 12-month basis, in accordance with the criteria for the provision of such services set forth in 8 NYCRR 200.6 (j). Despite the lengthy hearing in this matter, I find that there are still unresolved questions concerning the child's need, if any, for adaptive physical education and for physical therapy, as well as the extent of her need for occupational therapy. There is also a need to determine the child's vision and hearing levels. Accordingly, I find that the child should be medically evaluated to determine her need for these therapies and the present levels of her vision and hearing.
A medical evaluation for this purpose may be performed either by respondent's school physician or by the child's physician, provided that petitioner agrees to provide the CSE with the results of such an evaluation performed by the child's own physician.
Finally, petitioner asserts that respondent failed to maintain a verbatim record of the hearing, as it is required to do by Federal and State regulations (34 CFR 300.508 [a]; 8 NYCRR 200.5 [c]). An accurate and complete record is essential for review of a hearing officer's determination. The failure to maintain an accurate and complete record may constitute a basis for annulling a hearing officer's determination (Application of a Handicapped Child, 21 Ed. Dept. Rep. 617). The hearing was tape recorded, and a transcript was subsequently prepared. A number of pages of the transcript have blanks denoting words or phrases which were omitted. More extensive omissions occurred on at least eight occasions during six days of hearings when the proceedings were not halted and testimony continued while recording tapes were changed. It is the responsibility of the hearing officer to conduct the hearing in a manner which will allow an accurate record of the hearing to be prepared (Application of a Child with a Handicapping Condition, Appeal No. 92-38). On the last day of the hearing, the hearing officer acknowledged that there were omissions in the transcript but stated that she had gone over the transcript and believed that no omission had altered the gist of what had been said at the hearing. Petitioner has not disputed the hearing officer's statement, and respondent asserts that I may rely on the record before me. Indeed, the preceding discussion demonstrates that the transcript provides an adequate basis for purposes of my review of the issues raised by petitioner and respondent (Application of a Child with a Handicapping Condition, Appeal No. 91-33). While I hold that the omissions in the record do not per se afford a basis for annulling the hearing officer's decision, I direct respondent to ensure that in the future verbatim records of hearings are maintained.
THE APPEAL IS SUSTAINED.
IT IS ORDERED, that the decision of the hearing officer is annulled; and
IT IS FURTHER ORDERED that within 40 days after the date of this decision, respondent's CSE shall obtain a medical evaluation of the child and shall recommend an appropriate program for the child in accordance with the tenor of this decision.
New York _________________________
April 1, 1993 HENRY A. FERNANDEZ