The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by his parents, 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 Rochester
Advocacy for the Developmentally Disabled, Inc., attorney for petitioners, Mario R. Silva, Esq., of counsel
Adam D. Kaufman, Esq., attorney for respondent, Donald T. Schmitt, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) that petitioners' child be placed in a special education class in respondent's School No. 29 for the 1992-93 school year, notwithstanding the hearing officer's finding that there were defects in the child's individualized education program (IEP). The appeal must be sustained.
Petitioners' child, who is nine years old, was classified as speech impaired while in a BOCES preschool program, and as mentally retarded upon his entry into kindergarten in the Greece Central School District. In a triennial psychological evaluation completed by a Greece school psychologist in March, 1991, the child achieved a verbal IQ score of 66, and a performance IQ score of 87. At the hearing in this proceeding, respondent's school psychologist testified that the child's full scale IQ score of 74 in the 1991 evaluation did not accurately reflect the child's cognitive skills. The child has received medication for some time because of his hyperactivity. The child had been classified as mentally retarded by the Greece CSE; however, respondent's CSE recommended that the child be classified as learning disabled because of alleged delays in his auditory and visual processing skills. Petitioners only challenge the adequacy of the CSE's efforts to ascertain the child's needs. They do not dispute the child's classification as learning disabled.
While in the Greece Central School District, the child was enrolled in a special class with a child to adult ratio of 12:1+1, and he received speech/language and occupational therapies. For the 1992-93 school year, the Greece CSE recommended that the child remain in a special class for all but special subjects, eg., art and music. In July, 1992, petitioners became residents of Rochester. As a temporary measure pending review of the child by respondent's CSE, petitioners initially agreed that the child would remain classified as mentally retarded and they were offered the choice of a temporary placement in a special education class with a 12:1+1 child to adult ratio or instruction at home. Petitioners opted for instruction at home pending the CSE's review. The child also received speech/language and occupational therapies.
In an observation completed on October 5, 1992, the child's teacher at home reported that the child's most significant problem was an inability to concentrate for an extended period of time, and that he had difficulty learning sight words. At the hearing in this proceeding, the child's teacher testified that as of January, 1993, the child could not concentrate for more than one hour. In a speech/language assessment conducted on October 14, 1992, the child's expressive language was reported to be hampered by the child's syntax and grammar limitations. His receptive language revealed deficits in vocabulary, word discrimination and grammatic understanding. The evaluator stated that the child appeared to have auditory processing deficits.
In a psycho-educational evaluation completed on October 13, 1992, a school psychologist reported that the child was not impulsive and that his activity level was age appropriate. However, the school psychologist's instructions to the child had to be repeated in order for the child to comprehend. The school psychologist reported that the child displayed relative strength in his visual perceptual-motor development, in contrast to his language and auditory processing skills, and that the child had a significant deficit in his adaptive behavior. Academically, the child's letter word identification skills and passage comprehension ability were reported to be at a kindergarten level, while his mathematical skills were assessed to be at an end of kindergarten to beginning of first grade level. At the time of the child's evaluation, his chronological peers were in fourth grade. The school psychologist recommended that, notwithstanding the child's deficits in verbal skills and low level of adaptive behavior, the child should be classified as learning disabled because of the relative strength of the child's performance IQ. However, the school psychologist recommended that the child be placed in a program for mentally retarded children, in view of his extremely low academic skills.
On October 15, 1992, a building-level review team recommended to the CSE that the child be classified as learning disabled and that he be placed in a special education class with a 6:1+1 child to adult ratio. A meeting of a CSE subcommittee scheduled to be held on October 19, 1992, was rescheduled because the subcommittee did not obtain the results of the child's medical examination in time for the meeting. When the subcommittee met on November 9, 1992, it determined that the child should be further evaluated to ascertain the extent of his perceptual deficits and the effect such deficits would have upon his educational program. On November 24, 1992, the school psychologist who had previously evaluated the child administered a learning aptitude test to the child. The school psychologist reported that while the child had not demonstrated normal ability on any of the subtests, he had done relatively well on subtests which required visual skills without a motor component, and which required only minimal verbal skills.
On November 30, 1992, the CSE subcommittee recommended that the child be classified as learning disabled, and that, as of January 20, 1993, the child be placed for instruction in all subjects in a class for mentally retarded children having a 12:1+1 child to adult ratio. The subcommittee further recommended that the child receive speech/language therapy twice per week to address moderate delays in his receptive language, and that the child be evaluated to determine if he continued to need occupational therapy. The child's occupational therapist in Greece had recommended that the child's occupational therapy be discontinued. On December 10, 1992, petitioners accepted the child's IEP which the subcommittee had prepared. Respondent approved the subcommittee's recommendation. On or about January 14, 1993, petitioners were informed that the child would be placed in School 29, which is approximately 10 miles away from their home.
By letter dated January 21, 1993, petitioners requested that an impartial hearing be held to review the subcommittee's recommendation. The hearing commenced on March 25, 1993 and concluded on April 7, 1993. At the hearing, petitioners asserted that the proposed class at School 29 was inappropriate because it was designed to address the needs of mentally retarded, rather than learning disabled, children, and that School 29 was too far from their home to be the least restrictive environment for the child.
By decision dated May 14, 1993, the hearing officer held that the child's IEP was defective because the IEP did not adequately describe the child's individual educational needs or his learning style, and its annual goals did not address the nature of his inability or each of his skill deficits. Additionally, the hearing officer found that the IEP failed to reveal the child's expected rate of progress, did not set forth interim learning objectives for which the child's progress could be measured, and failed to list appropriate test modifications for the child. Notwithstanding the defects in the child's IEP, the hearing officer held that the child's placement in the proposed special education class in School 29 was overwhelmingly supported by the record, and that she lacked jurisdiction to direct respondent to place the child in a school which was closer to the child's home. The hearing officer directed respondent to provide taxi fare for the child's mother, if she is unable to attend school events in School 29 by any other means, and directed the CSE to revise the child's IEP in accordance with her decision.
Petitioners assert that the hearing officer failed to make findings of fact and merely summarized the testimony of the witnesses. I find that their assertion is without merit. While the hearing officer summarized the testimony at the hearing, she also made specific findings about the child's needs and the adequacy of his IEP.
Petitioners challenge the CSE's recommendation for the child's program and placement, as well as the procedure employed by the CSE in arriving at its conclusion. They assert that respondent failed to provide them with adequate notice of the evaluation which respondent's staff performed. State regulation requires that the chairperson of a CSE to which a child has been referred must notify the child's parents that evaluation information will be sought or that a review will be conducted, and that such notice must:
"include a description of the proposed evaluation or review and the uses to be made of the information." (8 NYCRR 200.5[a][i])
At the hearing, the child's father testified that petitioners had been orally advised by respondent's staff that the child would be tested, but that they were not told of the nature of the tests. The chairperson of the CSE testified that she did not know what notice of evaluation had been given to petitioners, and the record does not include evidence of such a notice. I, therefore, find that the CSE erred in not providing petitioners with an appropriate notice of its intention to evaluate the child (Appeal of a Child Suspected of Having a Handicapping Condition, 30 Ed. Dept. Rep. 433).
Petitioners also assert that the CSE subcommittee was invalidly constituted because no teacher who was qualified to provide instruction in the area of the child's suspected disability was present at the subcommittee meetings of November 9 and 30, 1992. Federal regulation requires that a child's evaluation be:
"... made by a multidisciplinary team or group of persons, including at least one teacher or other specialist with knowledge in the area of the suspected disability." (34 CFR 300.532 [e])
In this instance the child was evaluated by a team which included a certified school psychologist. Through his testimony at the hearing, respondent's school psychologist demonstrated his knowledge in the area of learning disabilities. Petitioners reliance upon the provisions of 34 CFR 300.344 (a)(2) and 8 NYCRR 200.4 (c)(3) (now 8 NYCRR 200.3 [c]) is misplaced. Both regulations require that the child's teacher be part of the CSE subcommittee. The record reveals that the child's teacher during his interim placement was at the November 30, 1992 subcommittee meeting at which the program and placement recommendation was made. State regulation requires that a representative of the school district who is qualified to provide, administer or supervise special education must be a member of a CSE subcommittee (8 NYCRR 200.3 [c][ii]). The subcommittee chairperson's testimony that she is authorized to teach special education is unrebutted. I find that the CSE subcommittee which recommended the child's program and placement was validly composed.
Petitioners also assert that the CSE subcommittee did not make a timely recommendation in accordance with the requirements of State regulation (8 NYCRR 200.4 [c]). The regulation requires that a CSE must make its recommendation within 30 days after a child who has been previously identified as having a disability is referred to the CSE. Although respondent purported to treat the child as not having been previously identified as having a disability, the U.S. Department of Education has opined that when a child with a disability moves from one school district to another district within the same state, the child's placement by the latter district would not be considered to be an initial placement nor would parental consent to the placement be required (EHLR 213:238). The child's mother testified at the hearing that in July, 1992, she spoke with the principal of the local elementary school about the child's placement for the 1992-93 school year. The subcommittee did not make its recommendation until November 30, 1992, and a specific class for the child was not identified until on or about January 14, 1993. Respondent asserts that its subcommittee could not act in October, 1992, as originally intended, because the subcommittee had not received the results of a physical examination of the child from the Monroe County Health Department, and that the subsequent deferral of action by the subcommittee at its November 9, 1992 meeting was appropriate to allow it to obtain additional information about the child. I have previously held that respondent may not disregard the regulatory time limit for arriving at a CSE recommendation in order to obtain adequate information (Application of a Child Suspected of Having a Handicapping Condition, Appeal No.90-23). Respondent suggests that its practices and procedures are governed in part by the terms of a consent agreement terminating an action against it in the U.S. District Court for the Western District of New York. However, the agreement is not in the record nor offered in this appeal. There is no evidence that the agreement authorized the extensive delay by the CSE subcommittee. I direct respondent to ensure that its CSE and subcommittees adhere to the regulatory time limits for acting upon the referral of children to the CSE.
Petitioners challenge the adequacy of the child's IEP, while respondent asserts that petitioners cannot raise the issue in this appeal because the hearing officer has directed the CSE subcommittee to revise the IEP. Respondent's assertion is untenable. Respondent bears the burden of proving the appropriateness of the program and placement recommended by the CSE subcommittee (Application of a Child with a Handicapping Condition, Appeal No. 92-30). To meet its burden, respondent must demonstrate that the recommended program and placement are reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176), and that the recommended program and placement are the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a]). 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 special education needs, and establishes annual goals and short-term objective which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-1; Application of a Child with a Disability, Appeal No. 93-9).
In defining special education, State regulation provides, in part, that:
"The individual needs of a student shall be determined by a committee on special education in accordance with provisions of section 200.4 of this Part upon consideration of the present levels of performance and expected learning outcomes of the student. Such individual-need determinations shall provide the basis for written annual goals, direction for the provision of appropriate education programs and services and development of an individualized education program for the student. The areas to be considered shall include:
(a) academic or educational achievement and learning characteristics which shall mean the levels of knowledge and development in subject and skill areas, including activities of daily living, level of intellectual functioning, adaptive behavior, expected rate of progress in acquiring skills and information, and learning style ..." (8 NYCRR 200.1 [ak])
I find that the child's IEP adequately describes his levels of knowledge and development in reading and mathematics. However, the IEP does not adequately describe the child's language level. The IEP merely reports the conclusion that the child has deficits in expressive and receptive language, despite the wealth of useful information provided in an October 14, 1992 speech/language evaluation. The IEP description of the child's language level is imprecise and does not afford a basis for planning a program for the child. I further find that the child's IEP does not adequately report the child's activities of daily living skills, notwithstanding the fact that his evaluations revealed that he has a significant deficit in adaptive behavior.
The child's IEP reports that the child has "visual, auditory processing delays". While this information reveals that he has special education needs, it does not provide an adequate description of his learning characteristics. Respondent's school psychologist reported that the child displayed a consistent pattern of better perceptual motor development than language or auditory processing skills. However, the IEP does not report the child's relative strength in these areas, which is essential in describing his learning style. It also fails to describe the child's relative strength in the use of manipulative materials, i.e., hands-on learning, which would be useful information in selecting an appropriate program and in providing the child with instruction. Although I do not agree with petitioners' assertion that respondent failed to adequately ascertain the child's needs, I find that the CSE subcommittee failed to make use of all of the evaluative information which it possessed in preparing the child's IEP.
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 [a]; 8 NYCRR 200.4 [c][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. 92-13). The child's IEP goal for reading, which is typical of the annual goals set forth in the child's IEP, is that the child "... will improve functional sight word vocabulary; will improve ability to decode unfamiliar words." This goal provides no measurable standard to ascertain whether the child has made progress during a year and its vagueness precludes its use in an IEP (Application of a Child Suspected of Having a Disability, Appeal No.93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-21). At the hearing, respondent's representatives asserted that respondent continues to provide children with a two-stage IEP under a waiver from the State Education Department, and that further details would be added to the child's IEP at the Phase II IEP conference. However, even under the former system of two-stage IEPs, the annual goals set forth in an IEP required more specificity than those in this child's IEP (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 343).
Petitioners also challenge the CSE's failure to set forth in the child's IEP the testing modifications to be used with the child. Respondent defends the omission of the modification from the child's IEP on the ground that testing modifications are appropriate only when a child with a disability will be expected to take a standardized test and that this child will not take any standardized test. Although modifications are frequently used when a child does take a standardized test, modifications are not limited to only standardized tests. Testing modifications are intended to provide children with disabilities with an "... equal opportunity for demonstrating acquired skills that may otherwise be impeded by the manner of testing" (A Parent's Guide to Special Education for Children Ages 5-21, p. 26, N.Y. State Education Department, 1992). That consideration is obviously not limited to a child's performance on a standardized test. State regulation requires that each child's IEP "... lists those testing modifications to be used consistently by the student in the recommended educational program;" (8 NYCRR 200.4 [c][vii]). I do not determine what, if any, testing modifications would be appropriate for the child, but I will require the CSE to reconsider the need for test modifications to be employed in the child's special education program when it prepares a new IEP for the child in accordance with this decision.
In view of my findings and those of the hearing officer with regard to the child's IEP, I must annul the hearing officer's determination that respondent had met its burden of proving the appropriateness of the program recommended by its CSE subcommittee and of the specific class in School 29 (Application of a Child with a Handicapping Condition, Appeal No. 92-15). Since the 1992-93 school year has ended during the pendency of this proceeding, I will direct the CSE subcommittee to prepare a new IEP for the 1993-94 school year which is consistent with the terms of this decision. The subcommittee must re-examine the child's IEP to ensure that the IEP adequately describes a program which will address the child's specific learning disabilities. Many of the present IEP provisions would be more appropriate for a mentally retarded child. However, I do not conclude, as petitioners urge, that the child may only be placed in a class of children with learning disabilities. Children with disabilities are to be placed in a proposed class upon the basis of similarity of needs with other children, rather than their respective classifications (Application of a Child with a Handicapping Condition, 28 Ed. Dept. Rep. 470).
The subcommittee must also reconsider the child's management needs to ascertain whether the child requires a program with a 12:1+1 child to adult ratio. Federal and State regulations require that each child be placed in the least restrictive environment. At the hearing in this proceeding, respondent's witnesses attempted to justify the child's proposed placement in a 12:1+1 program because the petitioners had accepted such a placement in the Greece Central School District. That recommendation is not consistent with the subcommittee's independent obligation to ascertain and recommend the least restrictive program for the child (8 NYCRR 200.6 [a]). The subcommittee must further consider the degree of mainstreaming which would be appropriate for the child. The Greece CSE had recommended that the child be mainstreamed for art and music, and there is nothing in the record which suggests that the child could not be appropriately mainstreamed in those subjects.
The hearing officer's conclusion that she lacked jurisdiction to specify the location of the child's program is erroneous. The proximity of the child's program to the child's residence is one factor to be considered in determining whether the child has been placed in the least restrictive environment (34 CFR 300.552 [a]; 8 NYCRR 200.1 [x]; Barnett v. Fairfax County School Board, 927 F. 2d 146 [4th Cir., 1991]). However, given the above necessary review, consideration of the appropriate location of the child's program is premature.
In view of my findings and conclusions with regard to the foregoing issues, I do not reach the other issues raised by petitioners.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the decision of the hearing officer is annulled, and;
IT IS FURTHER ORDERED that within 30 days after the date of this decision, respondent's CSE subcommittee shall recommend an appropriate program and placement for the 1993-94 school year for petitioners' child.
New York _________________________
July 15, 1993 HENRY A. FERNANDEZ