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 Dover Union Free School District
Mid-Hudson Legal Services, Inc., attorney for petitioner, RosaLee Charpentier, Esq., of counsel
Shaw and Silveria, Esqs., attorneys for respondent, Garrett L. Silveria, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which held that respondent had not violated petitioner's procedural or substantive rights when it replaced her child's language training tutor during the 1992-93 school year and which denied petitioner's request for 64 hours of service by the replaced tutor for her child. The appeal must be dismissed.
Petitioner's child, who is 13 years old, is classified as learning disabled. The child attended the Webatuck Elementary School of the Northeast Central School District for kindergarten through the middle of the fourth grade. He reportedly repeated kindergarten and received speech/language therapy and remedial reading services while in the Webatuck School. In January, 1991, the child enrolled in respondent's Dover Plains Elementary School. In a psychological evaluation, completed in February, 1991, the child achieved a verbal IQ score of 86, a performance IQ score of 115, and a full scale IQ score of 100. His academic skills were reported to be approximately two years below grade level. Although the child achieved significantly lower IQ scores in an independent psychological evaluation completed in August, 1992, in which the tests were normed on a different population, the child nevertheless continued to exhibit a significant discrepancy between his ability and his performance in written expression. The child's classification as learning disabled is not in dispute.
In March, 1991, when the child was initially classified as learning disabled, the CSE recommended that the child remain in a regular education fourth grade class and receive resource room and remedial reading and mathematics services. The child's individualized education program (IEP) for the 1991-92 school year, when he was enrolled in the fifth grade, reveals that he was to continue to receive remedial reading and mathematics services, and that he would also receive the services of a consultant teacher. The child's academic annual goal was to improve his reading skills to a level at which he could successfully complete the fifth grade program. The IEP also provided that the child was to receive counseling once per week in order to learn to express his emotions in an appropriate manner.
On the Comprehensive Tests of Basic Skills, a group achievement test battery administered in March, 1992, the child's reading skills were found to be the equivalent of a child in the seventh month of the second grade. His language skills were reported to be at a grade equivalent of 4.3, his mathematical skills were at a 3.8 grade equivalent, and his spelling skills were at a 3.4 grade equivalent. The child's report card for the fifth grade reveals that he received mostly C's, D's, and F's, and reportedly did not exert an appropriate effort in his studies. The child did not pass the New York State Fifth Grade Writing Test. At the hearing in this proceeding, respondent's director of special education testified that the child was placed in the sixth grade for the 1992-93 school year despite not having met the requirement for promotion to such grade, because there was no evidence that the child would benefit from being retained in the fifth grade. In the minutes of a CSE meeting held on June 4, 1992, the child was described as having difficulty in attending to task and being in need of a structured learning environment. Although the child's ability to control his behavior had reportedly greatly improved, he was described as continuing to have difficulty with reading, writing and mathematics. The CSE recommended that the child receive primary special education instruction in language arts, consultant teacher services in social studies and science, remedial reading and mathematics services, and counseling on an as needed basis while enrolled in a regular education sixth grade class for the 1992-93 school year.
Acting upon a suggestion made to her by the CSE, petitioner enrolled the child in a summer tutoring program of a private school which provides instruction to learning disabled children using the Orton-Gillingham technique. The summer program provided the child with instruction in phonics, spelling, and handwriting. The summer school reported that the child had strong word decoding skills, but that he lacked confidence to apply his skills. The school further reported that the child's written expression had improved, but that he would require further practice in order to independently write paragraphs.
In August, 1992, petitioner obtained an independent psychological evaluation of the child at respondent's expense. The child's IQ scores, while lower than those obtained in respondent's evaluation of the child in 1991, continued to reflect a disparity between his verbal and non-verbal cognitive skills. On an achievement test, the child received grade equivalent scores of 4.1 in reading, 4.1 in mathematics, 5.5 in language, 3.4 in spelling, and less than kindergarten in written expression. The independent evaluator reported that the child exhibited signs of having an attention deficit disorder, and suggested that the child be referred to a physician in order to obtain medication to address the attention deficit disorder. The evaluator speculated that the child could also have a neurological impairment. Noting that despite the child's below average reading and mathematical skills he was in fact underachieving only in his written expression, the independent evaluator recommended that the child receive intensive remediation of his writing disability from a tutor trained to use multisensory techniques, such as the Orton-Gillingham technique.
On September 14, 1992, the CSE met with petitioner and the independent evaluator to discuss the latter's evaluation, but did not reach any conclusion about changing the child's program. When the CSE reconvened on October 19, 1992, it recommended that the child receive one hour per day of language training to be provided by a tutor using the Orton-Gillingham or similar technique. The child's IEP, which provided for the use of test modifications such as separate test sites and reading directions and test questions to the child, included only one annual goal for the child. The annual goal was to improve the child's written expression to the 5.0 grade level equivalent. The CSE agreed to reconvene in January, 1993 to assess the child's progress in the program and make any necessary adjustments. On November 2, 1992, a tutor began to assist the child using the alphabetic phonics technique, which the record reveals is a form of the Orton-Gillingham approach.
At a meeting held on January 23, 1993, one of the child's classroom teachers reported that the child did not "carry-over" the skills he acquired in his language training program. The CSE recommended that the child continue to receive language training, but that the tutor begin to work with the child's teachers to integrate the language training program with the child's regular educational program. The CSE also recommended that the child receive an occupational therapy evaluation. Petitioner agreed with the CSE's recommendation. Thereafter, the acting chairperson of the CSE was advised by the superintendent of schools that respondent wished to replace the child's tutor with an "in-house" tutor who could be employed for a considerably smaller sum than the child's existing tutor received.
On or about February 28, 1993, the services of the child's tutor were discontinued and another individual who had tutored other children at respondent's request was hired to tutor petitioner's child. By letter dated March 3, 1993, petitioner asked respondent to appoint an impartial hearing officer to consider her claim that respondent was not implementing the child's IEP of October 19, 1992, which respondent had subsequently approved. A preliminary hearing was held on May 21 and 27, 1993, to determine the child's "pendency placement" (see 20 USC 1415 [e]; Section 4404  of the Education Law). In a decision dated June 3, 1993, the hearing officer found that the services offered by the child's first and second tutors were significantly different. While acknowledging respondent's right to change the child's tutor, the hearing officer held that for purposes of the Federal and State pendency provisions, respondent should have continued to provide the program which it had provided before the child's tutor was replaced. The hearing officer did not reach the issue of the appropriateness of the services provided by the child's second tutor. The hearing officer directed respondent to re-employ the child's first tutor for the remainder of the 1992-93 school year.
In a letter dated June 7, 1993 addressed to respondent's superintendent of schools and its CSE chairperson, petitioner requested that respondent provide the child with 64 one-hour sessions of tutoring by the child's first tutor during the Summer of 1993, to compensate the child for the loss of that tutor's services from March to the beginning of June, 1993. Petitioner's request for relief was denied by the superintendent of schools. The hearing in this proceeding resumed on July 13, 1993 and concluded on July 22, 1993. At the conclusion of the hearing, the parties agreed that the hearing officer should determine the appropriateness of the child's program as provided by the child's second tutor, and respondent's compliance with the procedural requirements, if any, in effecting the alleged change in the child's program. They further agreed that the hearing officer should determine what relief, if any, should be provided to petitioner and/or the child.
In a decision dated August 30, 1993, the hearing officer found that the child's first tutor had implemented a highly structured and sequential phonics tutoring program, which was not directly related to any of the regular or special education which the child received during the 1992-93 school year and which was consistent with the child's IEP of October 19, 1992. The hearing officer further found that the program implemented by the child's second tutor in March, 1993 was less structured than that of the first tutor, but more related to the rest of the child's curriculum and therefore more consistent with the amended IEP to which petitioner and the CSE agreed at the CSE meeting of January 23, 1993. Although not clearly articulated, the hearing officer, in effect, further found that the respondent had met its obligation to provide the child with an appropriate educational program during the 1992-93 school year, and that respondent had not violated petitioner's rights by not evaluating the child or providing petitioner with prior notice of the change of the child's tutors and the nature of the tutorial program. The hearing officer rejected petitioner's claim for compensatory services, but directed the CSE to obtain a speech/language assessment, and to re-evaluate portions of the child's cognitive and decoding skills, prior to recommending an appropriate program for the 1993-94 school year.
Petitioner asserts that the hearing officer's interim decision requiring respondent to re-employ the child's first tutor to resume the use of the alphabetic phonics technique is beyond the scope of this review, because neither party has appealed from that decision. I agree that the validity of that decision is not an issue to be reviewed in this appeal.
Petitioner further asserts that the hearing officer in his final decision of August 30, 1993 erred in failing to find that respondent violated her procedural rights by failing to evaluate the child, to give prior notice of the alleged change in the child's program, or to afford petitioner an opportunity to participate in a meeting at which the child's IEP was amended. The Federal regulations implementing Section 504 of the Rehabilitation Act of 1973 (20 USC 794) require that a child be evaluated before any significant change in the child's placement. The regulations do not define the terms "significant change in the child's placement." The Office of Civil Rights of the U.S. Department of Education has opined that regulation applies when there is a cessation of service, such as occupational therapy, without a prior evaluation (18 IDELR 1044).
In this instance the child's IEP provided that the child was to receive language training using the Orton-Gillingham or similar approach, as a modification of the child's regular education program. The record reveals that the child's first tutor provided one form of the Orton-Gillingham approach, in a highly structured, sequential and repetitious format. At the hearing in this proceeding, petitioner sharply contested whether the service provided by the child's second tutor was consistent with the Orton-Gillingham approach. However, the witnesses who testified on behalf of petitioner conceded that the Orton-Gillingham approach is not limited to the alphabetic phonics technique employed by the first tutor. The child's second tutor, who was trained in the private school which uses the Orton-Gillingham approach and which the child attended in the Summer of 1992, testified that she had used the Orton-Gillingham approach with the child to focus upon the child's learning problems which had been identified in his summer program, rather than to provide training in areas in which the child had exhibited relative strength. Although the child's tutors used different techniques, upon the record before me, I find that for the purposes of the Rehabilitation Act regulations the child's educational placement was not significantly changed so as to require an evaluation of the child prior to the change in the technique used in the child's language training (cf. Application of a Child with a Disability, Appeal No. 93-15).
The Federal Individuals with Disabilities Education Act requires that a parent be notified by a school district when it proposes to initiate or change "...the identification, evaluation or educational placement of the child or the provision of a free appropriate public education to a child." (20 USC 1415 [b][c]). A free appropriate public education is defined by the statute's implementing regulations as special education and related services (34 CFR 300.8). The child's IEP lists the language training at issue in this proceeding as a modification of his regular education program, rather than as special education, and the child's first tutor is not certified by the State Education Department to provide special education (cf 34 CFR 300.380 [a]; 8 NYCRR 200.6 [b]). However, it is not necessary to determine if the service in question was special education because, even if the child's language training was construed to be special education, there is no basis in the record upon which I could find that the petitioner's procedural rights have been violated. There is no requirement to provide such notice when the child's educational program remains substantially similar (Weil v. Bd. of Elem. and Sec. Educ. et al., 931 F.2d 1069 [5th Cir., 1991]; Lunceford v. Dist. of Columbia Bd. of Ed. et al., 745 F.2d 1577 [D.C. Cir., 1984]). I find that the child's program as provided by the second tutor was substantially similar, and that respondent was not required by Federal statute to give prior notice of the change in the technique by which the child's language training was provided.
State regulation requires that a CSE which recommends a change in a child's educational placement or program give notice of its recommendation to the child's parent (8 NYCRR 200.5 [a][i][b]). A change in placement is defined as:
"... a transfer of a student to or from a public school, BOCES or schools enumerated in articles 81, 85, 87, 88, or 89 of the Education Law." (8 NYCRR 200.1 [f]).
A change in program is defined as:
"... a change in any one of the components of the individualized education program as described in section 200.4 (c)(2) of this Part." (8 NYCRR 200.1 [e]).
A change in a child's program, within the meaning of the regulatory provision, would include a change in the amount of scheduled time in special education, the receipt of related services and/or consultant services, the use of specialized equipment, adaptive devices and test modifications (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 92). In this instance the specific form of Orton-Gillingham technique and the identity of the provider of such service were not listed in the child's IEP, nor were they required to be listed. Therefore, I find that the CSE was not required pursuant to State regulations to give petitioner notice of the change at issue in this proceeding.
With regard to petitioner's right to participate in a CSE meeting at which the child's IEP was modified, the record reveals that petitioner and her attorney were present at the CSE meeting of January 23, 1993 at which the IEP was amended to provide that the child's language training was to be "integrated to entire curriculum." At the hearing in this proceeding, petitioner testified that she had approved that IEP amendment. At that time, neither petitioner nor the CSE contemplated that a different tutor would provide the service. However, since the identity of the provider would not be listed on the child's IEP, I find that petitioner was not deprived of an opportunity to participate in the amendment of the child's IEP.
Petitioner further asserts that the hearing officer erred in finding that respondent met its burden of proving the appropriateness of the child's language training program subsequent to the change of the child's tutors. She asserts that the training provided by the child's second tutor was inconsistent with the recommendation by the child's independent psychological evaluator for language training. In her evaluation the independent evaluator recommended that the child receive individual tutoring by an individual trained to remediate dyslexia to address his disability in written expression, and that such remedial training be provided using multisensory methods such as those employed in the Orton-Gillingham approach. At the hearing in this proceeding, the independent evaluator testified that the child's IEP prepared by the CSE on October 19, 1992 accurately reflected the evaluator's findings and recommendations. When asked to explain her recommendation, the independent evaluator further testified that " ... the child needed to engage in a formal sequence of learning that would be a highly structured program" (Transcript, July 22, 1993,page 294). The independent evaluator also testified that the use or review of the child's classroom or homework assignments could be an appropriate supplementary activity, but could not replace instruction using the Orton-Gillingham approach. The child's first tutor, who observed the second tutor instruct the child for one hour on each of two days, testified that the second tutor did not use multisensory methods. The second tutor testified that she had, in fact, employed multisensory methods. The child's special education teacher, who instructed the child in language arts during the 1992-93 school year, testified that although the child's two tutors may have used different techniques, it was evident that a multisensory approach had been employed throughout the school year. Although the independent evaluator referred in her testimony to the use of a highly structured program, she did not testify that only the alphabetic phonics technique of the child's first tutor could be used, nor is there any other basis in the record for concluding that the techniques used by the child's second tutor were inconsistent with the independent evaluator's recommendation.
With regard to the appropriateness of the educational program which respondent provided, the record reveals that in May, 1993, the child achieved passing scores on the sixth grade Reading and Mathematics Pupil Evaluation Program (PEP) tests. A review of the child's sixth grade report card for the 1992-93 school year reveals that he received passing grades in reading throughout the school year, including the period of time during which he was provided the language training questioned by petitioner in this proceeding. He was also promoted to the seventh grade. A comparison of the child's scores on individually administered tests in the Spring of 1992 and 1993 reveals that the child's grade equivalent in reading improved by almost two years, and his total language skills improved by one year. Although the 1993 test was administered with test modifications and the record does not reveal whether test modifications were used with the 1992 test, there is evidence that the child made significant progress in his word attack and reading comprehension skills as demonstrated by the results of other individually administered reading tests administered in August, 1992 and May, 1993. The child's language arts teacher testified at the hearing in this proceeding that the child demonstrated an improved ability to decode words, and opined that he made about the same rate of progress during the time he received language training from the second tutor as he had when the first tutor provided such training. In view of both the documentary evidence and the testimony of the hearing witnesses in this proceeding, I find that respondent has demonstrated that it provided an appropriate program with regard to the child's need to improve his reading skills.
The language arts teacher further testified that the child's written expression, particularly his sentence structure and organization of thought, was much improved by the end of the 1992-93 school year. The record includes a portion of the child's written work on the fifth grade writing PEP test of May, 1993, which his language arts teacher opined was typical of the performance of children in the fifth grade. Nevertheless, the teacher acknowledged that the child continued to require assistance with his written expression. The independent evaluator testified that the child had difficulty printing letters which were dictated to him during the child's evaluation in August, 1992, but he had learned to correctly write letters and numbers when she re-evaluated the child in June, 1993. When evaluated in August, 1992, the child's written expression was found to be at a less than kindergarten level. In June, 1993, when the evaluator administered the same test of written expression to the child, he achieved a score equivalent to that of a child in the second month of the first grade. Although the scores on the tests administered by the evaluator are lower than the results of other tests, they nevertheless demonstrate that the child made progress. Upon the record before me, I find that respondent has demonstrated the appropriateness of the educational program which it provided to improve the child's writing ability. I would, however, urge respondent to more fully describe the child's annual goals and short-term objectives in the child's future IEP's, which will enable the parties to easily and accurately assess the child's rate of progress.
With regard to petitioner's claim for compensatory education for the child, I find that the hearing officer correctly denied such claim. Compensatory education is a permissible remedy under the Individuals with Disabilities Education Act (20 USC 1400 et seq.) 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.2d 69 [2nd Cir., 1990]; Lester H. v. Gilhool, 916 F.2d 865 [3rd Cir., 1990]; Miener v. State of Missouri, 800 F.2d 749 [8th Cir., 1986]). In this case, there is no predicate for such a remedy. I have considered petitioner's various requests for declaratory relief, and find them to be without merit
THE APPEAL IS DISMISSED.
New York _________________________
November 23, 1993 HENRY A. FERNANDEZ