University of the State of New York Emblem

The State Education Department
State Review Officer

No. 93-51

Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the educational program provided by the Board of Education of the City School District of the City of New York

Appearances:

Advocates for Children of New York, Inc., attorneys for petitioner, Dorothy Wendel, Esq., of counsel

Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, Sara Edelman, Esq., of counsel

DECISION

Petitioner appeals from the decision of an impartial hearing officer which modified the recommendation by respondent's committee on preschool special education (CPSE) to provide petitioner's child with more speech/language therapy during the 1993-94 school year than the CPSE had recommended, but which denied petitioner's request that the child be provided with a day, special education preschool program. The appeal must be dismissed.

Petitioner's child is three years old. The child has a congenital heart condition, a ventricular septal defect, for which she is no longer required to take medication. For 3 weeks after her birth, the child was hospitalized for pneumonia. Shortly thereafter, she was hospitalized in an intensive care unit to treat her respiratory distress. The child has a recurrent inflammation of her inner ear, and a mild to moderate conductive hearing loss of her right ear. She has been diagnosed as having a mild form of an anemia, and is reported to be somewhat small for her age because of slow weight gain. The child's educational disability is based upon delays in her expressive and receptive speech. Her classification by the CPSE as a speech impaired child is not disputed by petitioner, and will not be reviewed in this appeal (Hiller v. Bd. of Ed. Brunswick CSD, 674 F. Supp. 73 [N.D.N.Y., 1987]).

In October, 1992, the child was enrolled by petitioner in a "therapeutic nursery" program of the Columbia Presbyterian Medical Center, because the child exhibited signs of delay in her speech. The child's two older siblings had reportedly exhibited extensive delays in their speech. The child is of Hispanic descent, but English is the primary language in the child's home. A speech/language evaluation of the child was performed on January 6, 1993, in her therapeutic nursery program. The child's evaluator reported that the child did not appear to comprehend directions given to her in English or Spanish, and that the child was found to have a moderate receptive and a severe expressive language disorder. The child received speech/language therapy in the nursery program.

On June 18, 1993, the child was referred to the CPSE, for the purpose of recommending a program for the child during the 1993-94 school year. In a social history, petitioner reported that the child could say "mama" and "dada" at the age of one, but that her language acquisition had thereafter declined.

A psychological evaluation of the child was conducted in late June and early July, 1993, when the child was 30 months old. The psychologists who conducted the evaluation reported that the child's composite score on a test of her cognitive abilities was equal to that of a child who was 31 months old. However, they cautioned that the composite score did not accurately reflect the child's cognitive functioning, because there was a significant difference between her score on verbal portions of the test, where her performance was below the 24-month level, and nonverbal portions of the test, where her performance was at the 42 to 47-month level. They described the child as being well-related, lively and having a sense of independence, but appearing to be distractible and overactive, which the psychologists attributed to the child's significant language processing deficits. The psychologists recommended that the child receive instruction in a small, structured, language-based setting with a low child to teacher ratio, and that she receive speech/language therapy not less than twice per week in a group of not more than two children. The psychologists further recommended that the child's visual-perceptual skills be evaluated by an occupational therapist.

In a speech/language evaluation performed on July 7, 1993, the child was reported to have exhibited distractibility and perseveration, especially when presented with abstract or difficult tasks. The child's receptive language skills were assessed to be in the 13th percentile on a standardized test. She reportedly did not identify pictures which required that she have an understanding of how objects function, or do well with part-whole relationships and negatives, nor did she distinguish colors or compare objects. The child's expressive language skills were found to be in the 12th percentile, i.e., more than 1 but less than 2 standard deviations from the norm. In an informal assessment, the child was described as generally using not more than two-word utterances, most of which were focused upon the child's immediate environment and displayed a limited vocabulary for objects and pictures. The child reportedly did not use language spontaneously. The evaluator suggested that the child's articulation skills should be further assessed, but found no evidence of disfluency in the child's speech. The evaluator recommended that the child be enrolled on a 12-month basis in a therapeutic nursery program to provide a structured educational setting, and that the child receive speech/language therapy not less than twice per week in a group of not more than two children.

In an undated educational evaluation which was prepared after the child had received services in the therapeutic nursery program for at least six months, she was described as having age appropriate gross motor skills, but exhibiting mild developmental delays in her fine motor and perceptual motor skills. Her self-help skills were found to be age appropriate. Socially and emotionally, the child was described as cautious and prone to engage in independent play, while avoiding play in small groups. The evaluator speculated that the delays in the child's expressive language could impede her ability to participate in social interaction, but noted that the child did engage in activities with others when given appropriate support and encouragement. The evaluator, who noted that the child used both English and Spanish, further reported that the child was beginning to show an interest in repeating new words and sounds, and recommended that the child remain in a program which would provide a small group setting and therapeutic interventions. On June 7, 1993, the child was observed in a nursery class in the Child Development Center, rather than in the therapeutic nursery school program which she had attended. The observation report confirmed the educational evaluator's description of the child's play habits and socialization skills.

An occupational therapist who evaluated the child on July 12, 1993, reported that the child's muscle tone, range of motion, gait, gross motor skills, fine motor skills and activities for daily living skills were all within normal limits, while the child did demonstrate some weakness in her visual motor skills. However, the therapist recommended against providing the child with occupational therapy.

On September 2, 1993, the CPSE recommended that the child be classified as speech impaired, and that she receive speech/language therapy for 30 minutes, twice per week, in a group of not more than 3 children. The child's individualized education program (IEP) included 2 annual goals relating to the improvement of the child's receptive and expressive language, and provided that the child's therapy would be provided in the office of a private therapist (see 8 NYCRR 200.16 [h][3][i]).

On September 23, 1993, petitioner requested that an impartial hearing be held to review the CPSE's recommendation. A hearing was held on October 25, 1993, in which petitioner sought to have the hearing officer order respondent to pay for a daily 4 hour special education program for the child provided by the Child Development Center Therapeutic Preschool.

In a decision dated November 19, 1993, the hearing officer found that the child would be appropriately classified as speech impaired. With regard to the services to be provided to the child, the hearing officer found that respondent had not demonstrated that the amount of speech/language therapy recommended by the CSE, two 30 minute sessions per week, would meet the child's needs. However, the hearing officer further found that the child did not have deficits in addition to her delayed speech for which special education would be an appropriate remedy, and that her speech needs could be addressed by increasing the child's speech/language therapy to three 60 minute sessions per week, one of which, would be for individual therapy. The hearing officer also recommended that the CPSE re-evaluate the child's speech/language therapy needs in June, 1994.

Petitioner asserts that the hearing officer erred by applying the criteria for determining whether a preschool child has a disability, which are presently set forth in 8 NYCRR 200.1 (ee), in his analysis of the child's special education program needs, notwithstanding the fact that such criteria are not applicable to this child. The criteria to which petitioner refers were added to the Regulations of the Commissioner of Education on July 1, 1993. In a memorandum dated May, 1993, the State Education Department advised boards of education that the new definition of a preschool child with a disability was to apply to children who are initially referred to the CPSE on or after July 1, 1993. In this case, the child had been referred to the CPSE on or about June 18, 1993. Therefore, the new criteria set forth in 8 NYCRR 200.1 (ee) do not apply to the child, for the purpose of determining whether she may be classified as a child with a disability. In his decision, the hearing officer acknowledged that the new regulatory criteria did not apply, and found that the child could be appropriately classified as speech impaired pursuant to the criteria in effect prior to July 1, 1993. Nevertheless, the hearing officer found that he was required to take some cognizance of the new criteria in determining whether the CPSE's recommendation was appropriate, and further found that the child's speech delay was not severe enough to warrant provision of the daily special education program sought by petitioner.

The regulatory criteria to which the hearing officer referred are premised upon the degree of delay which a child exhibits in one or more functional areas. Although the criteria are relevant to determining whether a child should be classified, they are not determinative of the nature or amount of the special educational services which the child should receive. Therefore, I find that the hearing officer erred by purporting to reply upon the regulatory criteria in determining the appropriateness of the CPSE's recommendation.

Respondent bears the burden of establishing the appropriateness of its CPSE's recommendation. In meeting its burden, respondent must show that the recommended program or service is reasonably calculated to allow the child to receive educational benefits (By. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176), and would be provided in the least restrictive environment for the child (34 CFR 300.550 [a]; 8 NYCRR 200.16 [h][1]; 8 NYCRR 200.6 [a]). The initial issue is whether the CPSE has prepared 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 objectives which are related to the child's educational needs.

With regard to the child's individual needs in the four areas of learning characteristics, social development, physical development, and management needs (see 8 NYCRR 200.1 [kk]), I find that the child's IEP accurately reflects the results of her evaluations. The child's most significant learning characteristic in terms of special educational need is her speech/language usage. The record reveals that the child has exhibited difficulty repeating brief phrases, following simple directions and responding to simple questions. She has also demonstrated a limited use of labels, i.e., the assignment of names to objects, and an inconsistent use of two-word phrases. The child has also exhibited poor articulation skills. In the area of social development, the record reveals that the child is attentive to task. Although the child does not independently initiate social interaction with her peers, she does participate and cooperate in small group activities, with appropriate support and encouragement. Some of the child's evaluators noted that the child exhibited difficulty separating from petitioner. However, the reports by the psychologist and speech/language pathologist employed by the Child Development Center and the child's teacher in the therapeutic nursery program of the Columbia Presbyterian Medical Center do not afford a basis for concluding that the child has a significantly atypical reaction to separation from her parent. Despite the child's congenital heart condition, chronic inflammation of the inner ear, and small stature, the child's physician has opined that the child could attend school, without restriction. The child's gross and fine motor skills are reported to be within normal limits. The child presents no significant management needs apart from those related to her speech/language deficits.

Upon the record before me, I find that the child's only special educational need is the delay in her speech/language skills. I further find that the child's special educational need would most appropriately be addressed by providing her with speech/language therapy. Petitioner asserts that the provision of speech/language therapy alone would not provide the child with an adequate opportunity to interact with other children and use her speech/language skills to achieve her IEP annual goals. However, I find that speech/language therapy in a small group would afford the child the opportunity to develop her speech/language skills with peer interaction in a small group. As modified by the hearing officer's order, from which respondent has not appealed, the recommended speech/language therapy would be provided to the child for a total of three hours per week. Although some of petitioner's witnesses in the hearing opined that the child could not achieve her IEP goals with the one hour per week of service recommended by the CPSE, there is no basis in the record upon which to conclude that the child's IEP goals could not be achieved if she received three hours of speech/language therapy, as directed by the hearing officer. In view of my finding that the child's special education needs could be met by providing her with speech/language therapy, I further find that the child does not require special education in the restrictive setting sought by petitioner.

Upon review of the IEP's descriptive information about the child, I find that the child's annual goals generally consistent with the child's special education needs. However, I recommend that the CPSE consider developing short-term objectives which address the child's deficits in labeling and pragmatic language.

I have considered petitioner's other assertions, and find them to be without merit.

THE APPEAL IS DISMISSED.

Dated:            Albany, New York                                     _________________________
                       February 2, 1994                                           CLAUDIO R. PRIETO