The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by his 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 Kingston
Appearances:Plunkett and Jaffe, Esqs., attorneys for respondent, Phyllis A. Jaffe, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which did not resolve the dispute between petitioner and respondent concerning the appropriate classification for petitioner's child, and which denied petitioner's request that respondent be ordered to place the child in an out-of-state residential school. The appeal must be sustained in part.
Petitioner's child, who is 17 years old, was in the 10th grade in respondent's high school during the 1992-93 school year. While in kindergarten during the 1981-82 school year, the child received remedial speech services because of a speech articulation problem. The child continued to receive remedial speech services while in the first and second grades. He also received remedial reading assistance. The child's kindergarten, first, and second grade teachers expressed concern about his performance, and each recommended that he be retained in grade.
In April 1984 when he was in the second grade, the child was evaluated by a school psychologist, who reported that when observed in class, the child was frequently off-task, but easily redirected. The child achieved a verbal IQ score of 117, a performance IQ score of 114, and a full scale IQ score of 118. The school psychologist further reported that the child demonstrated relative weakness in immediate visual and auditory short-term memory. The child also reportedly exhibited visual-motor deficits. The school psychologist reported that the child's reading, spelling, and mathematic skills were at or above his current grade level. The school psychologist opined that the child required more time than others to complete tasks because of his inefficient work habits, which he attributed to an attention deficit disorder. However, he recommended that special educational services not be provided to the child, and the child was not referred to the CSE.
During the 1984-85 school year, the child repeated the second grade while enrolled in the schools of the Marlboro Central School District, where he continued to receive remedial speech services. Thereafter, he returned to respondent's school. The child's third grade teacher reported that the child had academic difficulty because of his poor work habits, and that the child did not interact with other children. Although his grades for various subjects fluctuated from year to year, the child had general academic success in the fourth through the seventh grades. However, petitioner had the child privately evaluated in the Summer of 1990, because his teachers had expressed concern to her about the child's lack of social interaction and unwillingness to talk in school.
In the private psychological evaluation, the child achieved a verbal IQ score of 111, a performance IQ score of 98, and a full scale IQ score of 105, which revealed that the child continued to function within the average range of ability. As he had in the 1984 evaluation, the child continued to exhibit relative strength in verbal concepts and visual sequencing. The evaluator administered two perceptual speed tests to the child, whose scores on such tests were reported to be well below his overall ability. The evaluator opined that the child had an automatic processing deficit which affected his ability to write quickly and legibly, and to spell. At the time of the evaluation, the child had just completed the seventh grade. The child's reading and mathematical skills were reported to be at the eighth grade level, while his spelling skills were found to be at fourth grade level. The evaluator reported that projective tests revealed that the child was anxious, reluctant to take risks, overly concerned about others' opinions and fearful of criticism. The evaluator recommended that the child receive psychotherapy, participate in extra-curricular social activities at school, and receive remediation for his automatic processing deficit.
In November, 1990, petitioner obtained a private evaluation of the child's communication skills. The evaluator reported that the child's receptive and expressive language skills were generally within normal limits. However, the child exhibited a mild disorder in his pragmatic communication skills, which was exemplified by his brief eye contact, provision of extremely limited amounts of information in conversation, use of unreferenced pronouns, and inconsistently appropriate responses to a listener's request for clarification. The evaluator nevertheless opined that the child should not receive speech/language therapy.
In November, 1990, the child was referred to the CSE because of concerns about the child's poor academic achievement, difficulty relating to adults and his peers, and his continuing refusal or inability to speak, except for mono-syllabic responses to direct questions. At the time of his referral, the child had achieved at least passing grades in all subjects except science and French, but his teachers had reported that he was not doing his homework and/or working up to his potential. During the second quarter of the 1990-91 school year, the child received failing grades in history, French and mathematics. He did achieve passing scores on the New York State Preliminary Regents Competency Tests in Reading and Writing.
The child was evaluated by respondent's school psychologist, who reported that the child achieved IQ scores and exhibited relative strengths and weaknesses comparable to those reported in his earlier psychological evaluations. The school psychologist opined that the child's deficits in decoding skills and visual memory did not appear to significantly interfere with his ability to learn. The child's lack of interaction with peers and poor social skills, in the opinion of the school psychologist, were matters of greater concern. The school psychologist opined the child could benefit from family therapy on a long-term basis.
In a speech/language evaluation completed by respondent's speech/language therapist in January, 1991, the child was reported to have displayed generally normal speech/language abilities, with some difficulty in word retrieval. While noting that the child had deficits in his pragmatic communication skills, the evaluator recommended that other, unspecified, types of therapy be used to address those deficits.
On March 15, 1991, the CSE recommended that the child not be classified as a child with a disability, because the child was reportedly functioning at a level which was commensurate with his ability. Petitioner did not seek review of the CSE's recommendation. The child received failing final marks in English, history and French, at the end of the eighth grade.
In September, 1991, the child entered the ninth grade in respondent's high school. He was enrolled in global studies, mathematics, English, French, earth science, design and drawing, and physical education. The child's English teacher advised his guidance counselor that the child did not speak in class. The child received failing grades in English and earth science during the first quarter of the 1991-92 school year, but passed each subject during the second quarter of the school year. In February, 1992, the guidance counselor convened a parent-teacher conference, during which the child's English, earth science and French teachers expressed their concerns about the child's ability to succeed in their respective classes. The guidance counselor solicited written comments from each of the child's teachers, which the counselor forwarded to the CSE chairperson. The teachers' comments revealed that the child hardly ever spoke in class. In February, 1992, petitioner asked the CSE to reconsider the child.
On March 17, 1992, the child was again evaluated by respondent's school psychologist, who observed the child in his global studies class. The school psychologist reported that the child was attentive, but did not otherwise participate in the class. On academic tests, the child achieved grade equivalents of 16.9 in reading comprehension, 11.9 in word attack skills, 10.0 in mathematical calculation, 11.6 in applied mathematical problems, and 7.4 in spelling. The school psychologist reported that the child continued to have difficulty with his handwriting. The school psychologist further reported that the child evidenced significant weakness in visual attention/short-term recall and/or processing and recommended that the child use a word processor, and receive counseling or psychotherapy focusing upon his self-concept and interpersonal relations. A speech/language evaluation begun in February, 1992 and completed in April, 1992 concluded that the child exhibited age-appropriate receptive and expressive language skills and age-appropriate written and spoken language abilities. Respondent's speech/language therapist opined that the child's difficulty speaking in class was not the result of a language based deficit.
By letter of March 24, 1992, addressed to the CSE chairperson, petitioner requested that the child receive independent neurological and speech/language evaluations. The CSE chairperson replied to petitioner by asserting that her request was premature because respondent had not completed its evaluation. On April 3, 1992, petitioner requested that an impartial hearing be held to review the CSE's alleged failure to make a timely recommendation. On April 29, 1992, petitioner reiterated her request for a hearing.
On April 30, 1992, the CSE recommended that the child be classified as learning disabled and that he remain in regular education classes, except for one period per day of resource room services. The CSE also recommended that the child receive individual counseling once per week and that he receive an occupational therapy evaluation. Petitioner did not accept the CSE's recommendation, and requested that the CSE meet again with her. At a meeting with petitioner on May 20, 1992, the CSE discussed her requests for a neurological exam and a neuropsychological examination, both of which the CSE denied. The CSE also refused petitioner's request that the child be provided resource room services on an interim basis, allegedly because petitioner's request for a hearing precluded any new change in the child's program or services under the "pendency" provision of State law (Section 4404  of the Education Law). However, that statute expressly permits such changes to be made with the agreement of the parties. I find that the CSE's refusal to implement the program on an interim basis was an abuse of the CSE's discretion.
On August 31, 1992, the CSE met with petitioner to review the child's individualized education program (IEP) which had been prepared at the CSE's April 30, 1992 meeting. The parties could not reach agreement about implementing the IEP on a temporary basis pending further evaluation of the child. By letter to respondent dated September 2, 1992, petitioner requested that an impartial hearing be held to review alleged procedural and substantive violations by the CSE. On September 13, 1992, the parties agreed that the child's IEP would be implemented for the remainder of the first quarter of the 1992-93 school year, at which time the CSE would review the results of independent neuropsychological and speech/language evaluations to be obtained by petitioner.
Independent neurological and psychiatric evaluations were conducted in the Mount Sinai Medical Center, in October, 1992. The results of the child's IQ tests were comparable to those which he had achieved in prior evaluations. When tested for perceptual speed, the child was within the average range, except that he was below average when a written response was required. A significant weakness in the child's written expression was further documented during tests of the child's academic achievement. The child's receptive language skills were reported to be well developed, while his expressive skills were described as adequate but hampered by a lack of spontaneity and fluency. Some evidence of a possible early developmental disability was reportedly found in the child's fine motor deficits in the use of his right hand. The child's attention and concentration were reported to be adequate. The child's auditory memory was found to be erratic. Socially, the child was described as shy, awkward and limited in his interests and social skills. The evaluators opined that the child's difficulties were more pervasive than a simple learning disability or of an attention deficit disorder, and suggested that he might be functioning at the upper end of the spectrum of a pervasive developmental disorder. A psychiatrist employed by the Mount Sinai Medical Center opined that the child met the criteria for the medical diagnosis of a pervasive developmental disorder - not otherwise specified. The independent evaluators recommended that the child be neurologically evaluated, seen by a psychiatrist on an on-going basis, receive remediation in written language, appropriate recreational activities and organizational skills, and instruction to heighten his awareness of social skills. They recommended that the child receive services in either a day treatment program or residential school.
On November 8, 1992, an occupational therapy evaluation was performed. Despite the child's below age-level performance on tests of motor proficiency and visual motor performance, respondent's occupational therapist opined that such poor performance did not interfere sufficiently with his handwriting to warrant the provision of occupational therapy.
On December 4, 1992, the CSE reviewed the child's educational performance during the first quarter of the 1992-93 school year and the results of the evaluation performed in the Mount Sinai Medical Center. The parties agreed to prepare and exchange draft IEP goals and objectives to be reviewed at a CSE meeting to be held on January 7, 1993. At the latter CSE meeting, the CSE drafted a revised IEP for the child, which provided that the child would remain classified as learning disabled and receive one period per day of resource room services. The IEP further provided that the child would receive individual counseling and guidance counseling, once each, per week. Test modifications, such as extended time limits and special locations, and the use of specialized equipment, such as a tape recorder, headphones and a computer, were also provided for in the child's IEP. The IEP included annual goals for the child's written language, expressive language, study skills, social skills, and daily living skills.
A neurological evaluation of the child completed on February 1, 1993, by a neurologist who had previously evaluated the child in 1977, found no evidence of a neurologic deficit. The results of a magnetic resonance imaging evaluation completed on March 4, 1993 were within normal limits.
In a letter dated February 4, 1993 to the CSE chairperson, petitioner requested that an impartial hearing be held to review the appropriateness of the program recommended by the CSE. Petitioner subsequently withdrew her request, because of the unavailability of her advocate, and thereafter made a new request for a hearing. The hearing commenced on May 6, 1993, and concluded on June 24, 1993. In a decision dated August 19, 1993, the hearing officer opined that neither of the definitions of learning disabled and multiply disabled as set forth in 8 NYCRR 200.1 (mm)(6) and (8), respectively, fully described the child's disability, but did not resolve the issue of the child's classification. The hearing officer held that respondent had not met its burden of proving the appropriateness of the program of resource room and related services recommended by the CSE, but also held that placement of the child in a residential school, as requested by petitioner, would not be the least restrictive environment for the child. The hearing officer further held that there was insufficient evidence in the record to establish that the private school could provide the therapeutic program which an expert witness had testified that the child required. The hearing officer directed the CSE to prepare a vocational assessment, and provide the child with counseling at home to address some of the child's social and daily living skill deficits. The hearing officer further directed the CSE to search for an appropriate day program for the child.
Petitioner asserts that the hearing officer erred by failing to rule upon petitioner's request that the child be reclassified as multiply disabled. She asserts that the complexity and multitude of the child's problems are not addressed by the classification of learning disabled, and that the child would be appropriately classified as multiply disabled. State regulation defines a learning disabled child as:
"a student with a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations. The term includes such conditions as perceptual handicaps, brain injury, neurological impairment, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include students who have learning problems which are primarily the result of visual, hearing or motor handicaps, of mental retardation, of emotional disturbance, or of environmental, cultural or economic disadvantage. A student who exhibits a discrepancy of 50 percent or more between expected achievement and actual achievement determined on an individual basis shall be deemed to have a learning disability." (8 NYCRR 200.1 [mm]).
State regulation defines a multiply disabled child as:
"a student with two or more disabilities that result in multisensory or motor deficiencies and developmental lags in the cognitive, affective or psychomotor areas, the combination of which cause educational problems that cannot be accommodated in a special education program solely for one of the impairments". (8 NYCRR 200.1 [mm])
The record reveals that the child has average intellectual ability, some psychomotor deficits in visual motor performance, and an affective disorder which has been medically diagnosed as a pervasive developmental disorder. However, there is no evidence in the record of a significant gross or fine motor deficit which affects the child's ability to benefit from regular education, nor is there any evidence of a multisensory deficiency, e.g., deaf-blindness. Although the child exhibits various symptoms of an affective disorder, those symptoms are nevertheless related to a single disorder. There is also no basis in the record for concluding that the child has the need for special education programs designed for more than one impairment. Therefore I conclude that under the regulatory scheme, the child would not be appropriately classified as multiply disabled.
The child's primary educational deficit is in the area of written expression. The record reveals that the child has a limited ability to organize and express his ideas in writing, and that his spelling skills are markedly deficient in relation to his cognitive ability. Although there is some evidence that the child may have a slight dysfunction in the control of the hand with which he writes, the record does not provide a basis for concluding that the child's writing difficulties are caused by a motor disability. In the numerous interim progress reports which are included in the record, many of the child's teachers in middle and high school have commented that the child was at risk of failing his courses because he did not complete homework assignments. However, petitioner testified at the hearing in this proceeding that the child did apply himself to his homework. I find that the child's writing difficulties substantially impaired his ability to benefit from regular education, and that the classification of learning disabled is appropriate for the child. Since the hearing officer did not resolve the dispute between petitioner and the CSE concerning the child's classification, petitioners' appeal must be sustained to the extent of finding that the child should be classified as learning disabled.
Petitioner asserts that the hearing officer erred by failing to rule upon her assertion that respondent had denied the child a free appropriate public education because of various, alleged procedural violations by respondent and/or its CSE. Specifically, she asserts that respondent failed to meet its "child find" obligation by not classifying her child as a child with a disability before April, 1992. Federal regulation requires that each local educational agency be responsible for insuring that all children with disabilities within its jurisdiction are identified, located and evaluated (34 CFR 300.220). In essence, petitioner asks for a determination that as of some unspecified time in the past, the child met the criteria for classification as a child with a disability and that respondent failed to classify the child. It is obvious that respondent has in place a child find procedure because the record reveals that the child was screened while in kindergarten, was evaluated by a school psychologist while in the second grade and was referred to the CSE on one occasion in 1990. The appropriateness of the CSE's recommendation in 1990, which petitioner did not appeal, is not an issue to be determined in this proceeding. The record establishes that respondent has met the "child find" requirement because it has in place procedures for locating and identifying children with disabilities.
Petitioner also asserts that respondent failed to assess the child in all areas of his suspected disability, in violation of Federal regulation (34 CFR 300.532 [f]). Petitioner does not identify any specific area which was allegedly omitted from respondent's evaluation of the child. Although a neuropsychological and related psychiatric and neurological evaluations were obtained, after petitioner requested that independent evaluations be performed, I do not conclude that respondent's evaluations were inadequate. The additional evaluations provided more detailed information about the child's physical condition, but I find that they provided relatively little educationally relevant information for the use of the CSE in planning the child's program. Petitioner further asserts that respondent improperly required her to pay for the cost of certain evaluations. Petitioner apparently refers to the private psychological and speech/language evaluations which she obtained in 1990, after the CSE recommended that the child not be classified. There is no evidence in the record that respondent required petitioner to obtain those evaluations, which again did not provide significantly different information from that set forth in respondent's evaluations. Consequently, I find that petitioner's assertions about the evaluation of the child are without merit.
Petitioner asserts that the CSE did not allow her to be an equal partner in the process by which the child's IEP was developed. A CSE must afford the parents a meaningful opportunity to interact with the CSE, but it is not obligated to accede to the parents' wishes with respect to each provision of an IEP (Application of a Child with a Handicapping Condition, Appeal No. 91-13; Application of a Child with a Handicapping Condition, Appeal No. 92-47). The record reveals that the CSE accorded petitioner an extensive opportunity to discuss the child's IEP, including the opportunity to submit written proposals for the child's IEP goals and objectives. Some, although not all, of petitioner's proposals were included in the child's IEP. Those that were not included fell within the CSE's discretion and the CSE's refusal to include them did not constitute an abuse of discretion. Therefore, I find that petitioner was not denied the opportunity to meaningfully participate in the development of the child's IEP.
Petitioner also asserts that the CSE failed to discuss with her other possible program and/or placement options. At the hearing in the proceeding, the CSE chairperson testified that the possibility of a special class program and the use of consultant teacher services were discussed with petitioner. However, that testimony is inconsistent with the minutes of the CSE meetings which are in the record and which do not disclose that other options were discussed. Whenever a school district proposes to change, or refuses to change, a child's placement, Federal and State regulations require that the written notice provided to parents must include a description of any options considered by the school district and the reasons why those options were rejected (34 CFR 300.505 [a]; 8 NYCRR 200.5 [a]). If indeed other options were discussed, I find that the CSE failed to comply with the regulatory requirement in its notice to petitioner sent after the January 1993 meeting of the CSE.
With regard to an appropriate program and/or placement for the child, petitioner asserts that the hearing officer erred in not ruling upon the child's placement at the Pathway School, and that the hearing officer was without authority to direct the CSE to consider a program other than the resource room program recommended by the CSE or the residential school sought by petitioner. I find that petitioner's assertion is supported by neither the facts nor the law. The hearing officer did consider placement of the child in the Pathway School, and concluded that it was not the least restrictive environment for the child and that it would not provide the therapeutic milieu which petitioner's expert witness claimed was necessary for the child. The United States Education Department has opined that an impartial hearing officer has the authority to grant any relief which the hearing officer deems necessary to ensure that a child receives the free appropriate education to which the child is entitled (17 EHLR 522). Having found that neither of the program alternatives favored by the parties was appropriate, the hearing officer was well within his authority in directing the CSE to consider other programs for the child.
Petitioner asserts that the record demonstrates that the child's needs can be met only in a residential educational setting, and that the hearing officer erred in finding that the Pathway School was not the least restrictive environment. Her claim for a residential placement rests largely upon the testimony of an expert witness. However, the neuropsychologist from the Mt. Sinai Medical Center testified that the child required either a day treatment program or a residential school. A day treatment program provides an array of services through integrated mental health and special education programs (8 NYCRR 200.14 [a]). As the name implies, the program is not residential in nature, and would be a less restrictive environment than the out-of-state residential school sought by petitioner. There is no basis in the record for the conclusion that a day treatment program is not available. Furthermore, the neuropsychologist, in her testimony, described an extensive therapeutic program to address the child's medical condition of pervasive developmental disorder. Although some of the symptoms of the disorder are germane to the child's ability to acquire an education, the treatment of the medical condition is not per se respondent's responsibility under either Federal or State law (Clovis Unified School District v. California Office of Administrative Hearings et al., 903 F. 2nd 635 [9th Cir., 1990]; Detsel by Detsel v. Board of Education Auburn Enlarged School District, 637 F. Supp. 1022, aff'd 820 F. 2nd 587, cert. den. 484 U.S. 981). This child's IEP addresses his educational needs including his social and daily living skill needs. In the absence of proof that the child's IEP cannot be implemented in a less restrictive program of special education, and regular education where appropriate, I find that there is no basis for placing the child in a residential school (Section 4402 [b] of the Education Law; Application of a Child with a Handicapping Condition, Appeal No. 92-10).
I have considered petitioner's other assertions, including the appropriateness of a 12-month program and compensatory education for the child, and find them to be without merit. There is no proof in the record that the child meets the eligibility criteria for a 12-month program, either with respect to the severity of his needs or the prevention of substantial regression (8 NYCRR 200.6 [j]). Compensatory education is a permissible remedy when a child has been excluded from school or denied appropriate services for an extended period of time (Burr by Burr v. Ambach, 863 F. 2d 1071 [2nd Cir., 1988]; Mrs. C. v. Wheaton, 916 F. 2nd 69 [2nd Cir., 1980]). In this case, there is not yet a predicate for such a remedy.
THE APPEAL IS SUSTAINED to the extent indicated.
IT IS ORDERED that the child is appropriately classified as learning disabled.
New York _________________________
November 4, 1993 HENRY A. FERNANDEZ